In an unprecedented move in the history of the highest judiciary in the country, four senior Supreme Court judges went to the media to express their displeasure with the Chief Justice of India (CJI) Dipak Mishra and with the way he was assigning cases.The Supreme Court of India is the only government organ which functions more on the basis of propriety and ethics rather than just legality. A consistent departure from these culminated into the four senior judges ultimately resorting to a press conference. This moment is sure to go down as a low point in the annals of our constitutional history.
Divisions in the Supreme Court burst out in the open on Friday when four senior-most judges took an unprecedented step of addressing the media to accuse Chief Justice Dipak Misra of breaching rules in assigning cases to appropriate benches, with one of them pointing to the plea regarding the mysterious death of Special CBI judge B.H. Loya.
At a hurriedly called press conference at his residence, Justice J. Chelameswar and three other colleagues said the Supreme Court administration was “not in order” and their efforts to persuade Justice Misra even this morning “with a specific request” failed, forcing them to “communicate with the nation” directly.
The four judges — Justices Ranjan Gogoi, Kurian Joseph and Madan B. Lokur besides Justice Chelameswar — released a letter they wrote to Justice Misra a couple of months ago, conceding that he was the master of roster but that was “not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues”.
Asked specifically if they were upset over the reference of the matter seeking a probe into the suspicious death of Judge Loya, Justice Gogoi said: “Yes.”
Judge Loya, who was hearing a case relating to the killing of gangster Sohrabuddin Sheikh in an alleged fake shootout in which BJP chief Amit Shah was named an accused (later discharged), died of cardiac arrest in 2014. His family has raised doubts over the circumstances in which Judge Loya died and have sought an independent probe into it.
Pleas seeking probe came up for a hearing in the Supreme Court on Friday when the top court expressed concerns over it and said it was a “serious issue”. It asked the Maharashtra government to produce all the documents related to the case before January 15.
In a seven-page letter, the four judges said they were not mentioning the details of the cases 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 there were well-settled and time-honoured conventions guiding the Chief Justice in dealing with the strength of the bench required 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” but would create “chaos”.
The four judges also touched upon another controversial issue, the Memorandum of Procedure (MoP) on the appointment of judges over which the Supreme Court had locked horns with the government.
The government, the letter said, had not responded to the communication and “in view of this silence it must be taken that the MoP has been accepted by the government on the basis of the order of this court”.
Justice Chelameswar told the media that they were “convinced that unless this institution is protected and maintains its requirements, democracy will not survive in the country or any country… The hallmark of a democracy is independent and impartial judges.
“Since all our efforts failed… Even this morning, on a particular issue, we went and met the Chief Justice with a specific request. Unfortunately, we could not convince him that we were right.”
Justice Gogoi said they were “discharging a debt to the nation that has got us here”.
The government appeared to distance itself from the controversy, saying the judges should sort the issue themselves.
Minister of State for Law P.P. Chaudhary said: “Our judiciary is one of the known, recognised judiciaries in the world. It is an independent judiciary. At this stage, I think no agency is required to intervene or interfere. The Chief Justice and other members should sit together and resolve. There is no question of panic.”
The Supreme Court split had an immediate political fallout, with CPI leader D. Raja says after meeting Justice Chelameswar that Parliament will have to devise methods to sort out problems like this in the top judiciary.
Two judges, Justice S.A. Bobde and Justice L. Nageshwar Rao, are understood to have called on Justice Chelameswar.
Raja later told media persons that he knew Justice Chelameswar for quite a long time and thought he should find out what happened since the judges have gone public with their complaints.
Full text of the letter
Following is the full text of the letter written by Justices J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurain Joseph to Chief Justice of India Dipak Misra.
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 offices of the Hon’ble 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 recognising the privilege of the Chief Justice to form the roster and assign cases to different members/benches of the court is a convention devised for a disciplined and efficient transaction of business of the court but not a 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 the equals – nothing more or nothing less. In the matter of the determination of the roster, there are well-settled and time honoured 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 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 of late the twin rules mentioned above have not been strictly adhered to. There have been instances where cases having far-reaching consequences for the nation and the institution had been assigned by the Chief Justice of this Court selectively to the benches “of their preference” without any rational 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 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 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 the 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) 1 SCC 1]. In that decision (referred to in R.P. Luthra), two 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 of the Collegium and at a later stage, 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 being similarly dealt with.
With Kind regards,
J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurain Joseph (IANS)