Chaos in SC: 4 sitting judges go public with grievances against CJI Dipak Misra

An extraordinary development

“Four of us are convinced that unless this institution is preserved and maintains its equanimity, democracy will not survive. Hallmark of good democracy is an independent and impartial judiciary. Without it democracy won’t survive,” said Justice Chelameswar.

He also informed the press that the dissident judges had met the CJI in the morning with a “specific request”, but were unable to convince him: “Even this morning, four of us met the CJI with a specific request which unfortunately could not convince him; therefore we were left with no choice but to communicate the nation".

The trigger for the judges going public is said to be allocation of a petition concerning the mysterious death of special CBI judge BH Loya, who was hearing the Sohrabuddin Sheikh fake encounter case in which Bharatiya Janata Party chief Amit Shah was a prime accused.

While Justice Chelameshwar remained guarded, justice Gogoi answered in the affirmative when asked if the developments were related to the death of judge Loya.

While there have been allegations against CJI Misra of allotment of matters to Benches and constituting Constitution Benches without taking other senior judges into confidence, the letter written by the four makes it amply clear:

“It is with great anguish and concern that we have thought it proper to address this letter to you so as to highlight certain judicial orders passed by this court which has adversely affected the overall functioning of the justice-delivery system and the independence of the high courts besides impacting the administrative functioning of the office of the Hon’ble CJI.

“There have been instances where case having far reaching consequences for the nation and the institution have been assigned by the CJI of the court selectively to the Benches "of their preferences" without any rationale basis for such assignment. This must be guarded against at all cost.

“We are not mentioning details only to avoid embarrassing the institution but note that such departures have already damaged the image of this institution,” they said.

Justice Gogoi, who would be succeeding Misra as CJI said "it's a discharge of debt to the nation which we have done” and rubbished suggestions if they have broken ranks.

Asked whether they wanted the Chief Justice to be impeached, Justice Chelameswar said "let the nation decide”.

This is not the first time that Justice Chelameshwar and the CJI have been on the collision course.   

In November 2017, the CJI constituted an extraordinary Constitution Bench of five judges to annul an order passed by a Justice Chelameswar headed bench.

Following a PIL, Justice Chelameswar had ordered that a five-judge bench of senior most judges in the apex court 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.

But two days later, the Misra-headed bench upheld the authority of the Chief Justice to constitute benches and annulled the order prompting murmurs of differences between the two top judges.  

The matter involved the arrest of retired Orissa High Court judge IM Quddusi among others for conspiring to bribe and influence the highest level of judiciary to favour the Lucknow based Prasad Education Trust which runs a medical college.  

Two PILs that were filed seeking a probe into the allegations of bribery in higher judiciary were subsequently dismissed and even imposed fine of Rs 25 lakh on the petitioners for making baseless charges in the petition.

Holding that the Chief Justice was only the first among equals, the four judges in their letter 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.

The 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.

Referring to the October 27 order in R.P. Luthra vs Union of India case, they said there should be no further delay in finalising the Memorandum of Procedure in the larger public interest.

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.

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.

Incidentally senior Supreme Court advocate Dushyant Dave, in an article, on January 10 too had accused the CJI of functioning in an opaque manner and advised taking corrective measures.  

“Little insight into the functioning of today’s Supreme Court will reveal that the Chief Justice has been exercising powers in a completely opaque and unfathomable manner. Several instances in recent months reflect that the Constitution Benches are constituted by including only certain Judges and excluding therefrom certain other Judges.

“The Chief Justice will be well advised to correct this course.

“But if he doesn’t, for reasons which are unknown, the other Judges must step in and retrieve the situation. After all, Independence of Judiciary is the collective responsibility of all the Judges and they cannot refuse to act under the specious argument that the constitution of benches and allocation of cases is the prerogative of the Chief Justice alone."

While there has been no official reaction from the government, the matter is steadily acquiring political colour.

West Bengal Chief Minister and Trinamool Congress supremo Mamata Banerjee warned about the executive’s “extreme interference” with the judiciary.

Judiciary and Media are the pillars of democracy. Extreme interference of Central Government with Judiciary is dangerous for democracy. 2/2

— Mamata Banerjee (@MamataOfficial) January 12, 2018

CPI(M) general secretary Sitaram Yechury demanded a probe. “This cannot but merit a thorough, proper investigation and understanding of how independence and integrity of judiciary is being interfered or is being affected, which is impermissible in a secular democratic republic," he said.  

From the legal fraternity, senior advocate Indira Jaising too wondered about interference by the Executive. “I welcome the fact that they addressed a press conference, but I want to ask what has led to the present situation. Why is there this divide between the CJI on one hand, and four judges on the other.

 “I need to know if there is interference by the executive, that is the only question that matters,” said Jaising.

Full text of the letter

Dear Chief Justice,

It is with great anguish and concern that we have thought it proper to address this letter to you so as to highlight certain judicial orders passed by this Court which has adversely affected the overall functioning of the justice delivery system and the independence of the High Courts besides impacting the administrative functioning of the Office of the Hon’ble the Chief Justice of India.

From the date of establishment of the three chartered High Courts of Calcutta, Bombay and Madras, certain traditions and conventions in the judicial administration have been well established. The traditions were embraced by this Court which came into existence almost a century after the above mentioned chartered High Courts. These traditions have their roots in the anglo saxon jurisprudence and practice.

Once of the well settled principles is that the Chief Justice is the master of the roster with a privilege to determine the roster, necessity in multi numbered courts for an orderly transaction of business and appropriate arrangements with respect to matters with which member/bench of this Court (as the case may be) is required to deal with which case or class of cases is to be made. The convention of recognizing the privilege of the Chief Justice to form the roster and assign cases to different members/benches of the court is a convention designed for a disciplined and efficient transaction of business of the Court but not a recognition of any superior authority, legal or factual, of the Chief Justice over his colleagues. It is too well settled in the jurisprudence of this country that the Chief Justice is only the first amongst equals — nothing more or nothing less. In the matter of the determination of the roster there are well-settled and time-honoured conventions guiding the Chief Justice, be the conventions dealing with the strength of the bench which is required to deal with a particular case or the composition thereof.

A necessary corollary to the above mentioned principle is that 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.

Any departure from the above 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 off late the twin rules mentioned above have not been 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 the Court selectively to the benches “of their preference” without any rationale basis for such assignment. This must be guarded against at all costs.

We are not mentioning details only to avoid embarrassing the institution but note that such departures have already damaged the image of this institution to some extent.

In the above context, we deem it proper to address you presently with regard to the Order dated 27th October, 2017 in R.P. Luthra vs. Union of India to the effect that there should be no further delay in finalizing 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 Anr. vs. Union of India [ (2016) 5 SCC 1] it is difficult to understand as to how any other Bench could have dealt with the matter.

The above apart, subsequent to the decision of the Constitution Bench, detailed discussions were held by the Collegium of five judges (including yourself) and the Memorandum of Procedure was finalized and sent by the then Hon’ble the Chief Justice of India to the government of India in March 2017. The Government of India has not responded to the communication and in view of this silence, it must be taken that the Memorandum of Procedure as finalized by the Collegium has been accepted by the Government of India on the basis of the order of this Court in Supreme Court Advocates-on-Record-Association (Supra). There was, therefore, no occasion for the Bench to make any observation with regard to the finalization of the Memorandum of Procedure or that that issue cannot linger on for an indefinite period.

On 4th July, 2017, a Bench of seven Judges of this Court decided In Re, Hon’ble Shri Justice C.S. Karnan (2017) 1SCC 1]. In that decision (refer to in R.P. Luthra), two of us observed that there is 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 learned judges with regard to the Memorandum of Procedure.

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.

The above development must be viewed with serious concern. The Hon’ble Chief Justice of India is duty bound to rectify the situation and take appropriate remedial measures after a full discussion with the other members of the Collegium and at a later state, if required, with other Hon’ble Judges of this Court.

Once the issue arising from the order dated 27th October, 2017 in R.P. Luthra vs. Union of India, mentioned above, is adequately addressed by you and if it becomes so necessary, we will apprise you specifically of the other judicial orders passed by this Court which would require to be similarly dealt with.

With kind regards,

J. Chellameshwar

Ranjan Gogoi

Madan B. Lokur

Kurian Joseph