All is not well in Supreme Court

Clearing lingering doubts among the public is as important as restoring order in the highest court of the land

By Author   |   Published: 21st Jan 2018   12:01 am Updated: 20th Jan 2018   11:51 pm

In a first-of-its-kind in independent India, four senior-most judges of the Supreme Court decided to go the people’s court by addressing a press conference on January 12.

The press meet came after all the four judges, at a meeting the same morning, “failed to persuade the Chief Justice of India (CJI) that certain things are not in order and, therefore, he should take remedial measures.” “Unfortunately, the efforts failed. We are convinced that unless corrective steps are taken immediately, the judiciary will lose its strong and independent tag, an essential hallmark of a vibrant democracy,” they said.

Justice Jasti Chelameswar, who called it an “extraordinary event in the history of any nation”, along with Justices Ranjan Gogoi, MB Lokur and Kurian Joseph, said “sometimes administration of the Supreme Court is not in order and many things which are less than desirable have happened in the last few months. Unless this institution is preserved, democracy will not survive in this country. All four of us are convinced that democracy is at stake.”

Justice Gogoi, who is scheduled to take over as the next Chief Justice of India, added “it’s a discharge of debt to the nation which we have done” before Justice Chelameswar closed the press conference by saying: “We don’t want wise men saying 20 years from now that Justice Chelameswar, Gogoi, Lokur and Kurian Joseph sold their souls and didn’t do the right thing by our Constitution.”

They also released the letter they had written to Chief Justice Dipak Misra, two months ago, in which the four judges said: “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 rationale for this assignment. This must be guarded against at all costs.”

Trust in judiciary and its ability to act with integrity is a key pillar of India’s democracy. With the four judges speaking out, India’s sanctum sanctorum suddenly came under serious scrutiny.

What Broke the Ceiling

Responding to the media, Justice Gogoi confirmed that the immediate trigger was the allotment of the case relating to the death of Justice BH Loya to a “junior” bench that very morning.

Judge Loya (48) who was hearing the case relating to the alleged fake encounter killing of Sohrabuddin Sheikh, in which BJP president Amit Shah was an accused, died of cardiac arrest on December 1, 2014, in Nagpur.

Judge Loya had taken over the case after Judge Utpat was transferred overnight. Judge MV Gosavi who took over the case from Loya acquitted Amit Shah in two weeks. Many questions have been raised over the circumstances of Judge Loya’s sudden death.

Appointing Judges

The judges’ letter also highlighted the orders of the two-judge bench in the RP Luthra versus Union of India case on delay in finalising Memorandum of Procedure (MoP) about appointment of judges, delivered on October 27. Though the two-judge bench rejected cancelling the appointment of judges without the MoP, it said that “there should be no further delay in finalisation of MoP in larger public interest”.

But the matter was transferred to a three-judge bench comprising CJI Misra and Justices AK Sikri and Amitava Roy. The three-judge bench on November 8, 2017, recalled the judgement of October 27 stating that “these are not matters to be taken up on the judicial side like this”.

The judges objected to the CJI setting up a new “preferred” bench to hear issues on the MoP. “When the MoP was the subject matter of a decision of a Constitution Bench of this court it is difficult to understand as to how any other bench could have dealt with the matter,” they said and added that “any issue with regard to the MoP 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.”

MCI Bribery Case

Another key case, which ruptured relations and fuelled this revolt is the case of Medical Council of India (MCI) vs Prasad Education Trust (PET).

A CJI Misra-led three-judge bench was hearing the case of the MCI denying permission to PET to start a medical college and wanting to encash the Rs 2-crore bank guarantee (BG). The bench, first in August 2017 and then on September 18 stopped the MCI from encashing the BG. On the second occasion, the bench asked the MCI to conduct another inspection to see if the PET can admit students in 2018-19.

On November 8, lawyer Prashant Bhushan moved a petition seeking urgent hearing in the MCI matter. Since CJI Misra was at a Constitution bench that day, the petition came up for oral mention before Justice Chelameswar, who posted it for hearing on November 10 before his own bench, though the matter was being heard by a bench headed by the CJI.

This happened 12 days after the Luthra case was allotted to a new bench by the CJI even though it was being handled by a Constitution bench. Later that day, the CJI reassigned the case to another bench of Justices AK Sikri and Ashok Bhushan.

On the next day, lawyer Kamini Jaiswal filed a new petition in the matter. Since the Chief Justice was again busy with a Constitution bench, the oral mention took place before Justices Chelameswar and Abdul Nazeer who decided to hear the petition at 12:45 pm the same day.

When they took up Jaiswal’s petition for hearing, they received a note from the CJI suggesting that since he had already assigned a similar case to another bench, this bench should not pass any orders in the matter. Ignoring this advice, the bench not only referred the matter to a Constitution bench but also dictated its composition (first five judges in the order of seniority).

Within hours, the CJI constituted a seven-member bench headed by himself and excluding Justice Chelameswar to take up the matter.

Critical Circular

The Supreme Court registry on November 10 issued a key circular which read, “It is hereby notified for the information of the Members of the Bar and the Parties appearing in person that henceforth oral mentioning, in respect of matters which have not already been assigned/listed before any other bench, will be allowed only before the Court presided over by Hon’ble Chief Justice of India at 10.30 am”.

As a rule, oral mentions are heard by the CJI, so there was no need to specifically say so. But it was explicitly said so because as per time-honoured convention, the senior most judge of the court hears oral mentions when the CJI is busy. This circular simply cut out Justice Chelameswar, the second senior-most judge, from hearing oral mentions.

Coming immediately after Justice Chelameswar heard oral mentions on November 8 and 9, it spoke for itself. It also pointed to the complete breakdown of trust between the top two judges of India.

Little Healing Touch

On January 16, the Supreme Court released a list of seven important cases to be heard by a Chief Justice-headed constitution bench, conspicuously leaving out all four judges who spoke out.

The cases include Aadhaar, challenge to Section 377; women’s entry into the Sabarimala shrine; the right of Parsi women to enter a fire temple if they marry outside the community; challenge to the IPC provision that says only men can be tried for adultery; and if politicians facing criminal charges should be disqualified from elections.

But the Chief Justice had already met the four judges twice after they went public on January 16 and 18 and assured the nation that the crisis would be sorted out soon. While that will be good, steps should also be taken to clear the doubts lingering in the minds of the public.