Divisions at the top in the Supreme Court burst out in the open on Friday when four senior sitting judges took an unprecedented step of publicly accusing Chief Justice Dipak Misra of not strictly adhering to rules in assigning cases to appropriate benches which they said can create “doubt” about the integrity of the apex court.
Speaking to the media at the residence of Justice J. Chelameswar, the judges said the Supreme Court administration was “not in order” and released an undated letter they wrote to Justice Misra in which they conceded that the Chief Justice was the master of roster but this was “not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues”.
“It (press conference) is an extraordinary event in the history of judiciary and more particularly in this nation, even for this institution (Supreme Court). It is with no pleasure that we have been compelled to do this. Administration of the Supreme Court is not in order. Many things less than desirable have happened in the last few months. We owe a responsibility to the institution and the nation. We tried to collectively persuade the Chief Justice that certain things are not in order and remedial measures are necessary.
“Unfortunately our efforts have failed in convincing the Chief Justice of India to take steps to protect this institution,” Justice Chelameswar said at the hurriedly called press conference.
The four judges — Justices Ranjan Gogoi, Kurian Joseph and Madan B. Lokur besides Justice Chelameswar — did not refer to any particular matter the Chief Justice had decided in assigning benches. Asked specifically if they were upset over reference of the matter seeking a probe into the suspicious death of Special CBI Judge Brijgopal Harkishan Loya, Justice Gogoi said: “Yes.”
But in the seven-page letter they said they were not mentioning details only to avoid embarrassing the institution because “such departures have already damaged the images of this institution to some extent”.
The clash among the judges in the highest court also comes in the wake of a controversial order in November in which Justice Misra declared that the Chief Justice “is the master of the roster” having exclusive power to decide which case will go to which judge.
The CJI had given the order a day after a two-judge bench headed by Justice Chelameswar had passed an order that a five-judge bench of senior most judges in the apex court should be set up to consider an independent probe into a corruption case in which bribes were allegedly taken in the name of settling cases pending before Supreme Court judges.
Holding that the Chief Justice was only the first among equals, the four judges contended that in a matter of determination of roster there were well-settled and time-honoured conventions guiding the Chief Justice, be it the convention dealing with the strength of the bench required to deal with a particular case or the composition thereof.
“A necessary corollary to the above mentioned principle is the members of any multi-numbered judicial body, including this court, would not arrogate to themselves the authority to deal with and pronounce upon matters which ought to be heard by appropriate benches, both composition-wise and strength-wise with due regard to the roster fixed,” they wrote in the letter.
They said any departure from the two rules would not only lead to “unpleasant and undesirable consequences of creating doubt in the body politic about the integrity of the institution. Not to talk about the chaos that would result from such departure.
“We are sorry to say that, of late, the twin rules mentioned above have not been strictly adhered to. There have been instances where case having far-reaching consequences for the nation and the institution had been assigned by the Chief Justices of this court selectively to the benches ‘of their preference’ without any rationale basis for such assignment. This must be guarded against at all cost.”
The four judges also touched upon another controversial issue, the Memorandum of Procedure on appointment of judges over which the Supreme Court had locked horns with the government.
They referred to the October 27 order in R.P. Luthra vs Union of India case to the affect that there should be no further delay in finalising the Memorandum of Procedure in the larger public interest.
“When the Memorandum of Procedure was the subject matter of a decision of a Constitution Bench of this court in Supreme Court, Advocates on Record Association and (Another) vs Union of India (2016), it is difficult to understand as to how any other bench could have dealt with the matter,” they told the Chief Justice.
Subsequent to this, detailed discussions were held by the collegium of five judges, including CJI, and the MoP was finalised and sent by the then CJI to the government in March 2017.
The government, the letter said, has not responded to the communication and “in view of this silence it must be taken that the MoP has been accepted by the government of India on the basis of the order of this court.
“There was, therefore, no occasion for the bench to make any observation with regard to the finalisation of the MoP or that that issue cannot linger on for an indefinite period.”
The judges said on July 4 last year, two members of a bench of seven judges that decided the case of Justice C.S. Karnan observed that there was a need to revisit the process of appointment of judges and to set up a mechanism for corrective measures other than impeachment. No observation was made by any of the seven judges with regard to the MoP.
“Any issue with regard to the Memorandum of Procedure should be discussed in the Chief Justices’ Conference and by the Full Court. Such a matter of grave importance, if at all required to be taken on the judicial side, should be dealt with by none other than a Constitution Bench.
Justice Chelameswar told the media that they were “convinced that unless this institution is protected and maintain its requirements, democracy will not survive in the country or any country.
“For survival of a democracy, it is said… the hallmark of a democracy is independent and impartial judges.”
“Since all our efforts failed… Even this morning, on a particular issue, we, four of us, went and met the Chief Justice with a specific request. Unfortunately we could not convince him. Therefore, we were left with no choice but to communicate with the nation to please take care of the institution and the nation.”
Justice Gogoi said they were “discharging debt to the nation that has got us here”.