By Poonam I Kaushish
An unprecedented judicial holocaust hit India last week, the likes unseen or unheard in Independent India. All hell broke loose when four senior-most Supreme Court judges mounted a virtual revolt and scathingly criticised Chief Justice Misra, saying that events in the Supreme Court had “compelled them” but to put their concerns before the nation. Leaving the judiciary, lawmakers and public stunned, uncertain how this open dissension in the hallowed institution would be resolved.
Describing their press conference as an extraordinary event in the Apex Court’s history, the judicial quartet — Justice Chelameswar, Justice Ranjan Gogoi, Justice Madan Lokur and Justice Kurien Joseph— said “the administration of the top court was not in order and many less than desirable things have taken place. Several times we collectively tried to persuade CJI to take remedial measures, but our efforts failed. Leaving us no choice but to discharge our debt to the nation and communicate that please take care of the institution.”
The sordid drama has its genesis in a letter the judges wrote to the CJI two months ago. But the issues raised therein were not acted upon. Primarily, the functioning of the justice delivery system, CJI’s conducted vis-à-vis his role as “master of the roster” and independence of the High Courts. Underscoring, the hallmark of a democracy is an impartial, free and strong judiciary, the judges added, “Democracy will not survive unless this institution is preserved. We do not want future generations to say that the four of us sold our souls.”
Undoubtedly things are amiss behind the Supreme Court closed doors. It is obvious there are no mechanisms to address them. At the heart of this open war are three contentious issues: How judges are appointed? How sensitive and big-ticket cases having far-reaching consequences for the nation, are assigned by the CJI “selectively to Benches of ‘their preference’ without any rational basis” and over-all administration of the Apex Court being dictated by “whims”. Also there is a clear allusion to judicial corruption.
The story goes back to November 2017 and the allegation by a hawala operator that an Orissa High Court retired judge IM Quddusi took a bribe in return for a favourable verdict from the Supreme Court in a case related to medical admissions. The Lucknow Medical College scam led to the first public clash between the CJI and Justice Chelameswar.
Admitting a PIL seeking a SIT probe by a retired CJI into the allegations of judicial corruption Justice Chelameswar ordered setting up a five senior most judges Constitution Bench for hearing the petition. The very next day CJI declared that no Bench could allocate any case and direct the CJI who was master of the roster to form a Constitution Bench.
Justice Misra posted the case before a seven-member Constitutional Bench led by him (two judges recused themselves) thereby nullifing Justice Chelameswar’s order. Now, the dissenting judges have sought to remind the CJI that he is only a “first among equals, nothing more and nothing less.”
Unconfirmed reports also hint at the mystery behind transfer of special CBI Judge Loya mysterious death case (he was hearing the sensitive Sohrabuddin Sheikh encounter where BJP President Amit Shah is a prime accused) from senior judges to junior judges Bench by the CJI. Recall Judge Loya had gone to Nagpur to attend a colleague’s daughter wedding on 30 November 2014 when he apparently fell ill suddenly and died of a heart attack. His family members then had made accusations of his demise “being unnatural” and wanted a probe into the circumstances his death.
Importantly, this judicial bomb comes amid a tug-of-war between the Government and the judiciary over how to appoint judges to the High Courts and Supreme Court. The Supreme Court last year had rejected a Government move to have representatives in the group handling appointments and transfers of judges to the highest courts. There are currently 25 judges on India’s Supreme Court, with six vacancies.
Certainly, it has divided public opinion across the board and is deeply troubling that an institution that plays the guardian and watchdog of freedoms and routinely sets the agenda for institutional propriety and probity should be seen to be so ill-equipped when it comes to listening to its own. While supporters say the judges have shown courage, critics aver this sort of public “unionism” is mutinous and inappropriate while netas derisively assert the judges were behaving like “judge politicians”.
Pertinently, given the judiciary’s vital role in the Constitutional montage this is a moment of reckoning whereby the crisis within and issues raised cannot be brushed away, ignored or consigned to a one-day news cycle. They need to be confronted, discussed, addressed and resolved statesmanlike. Hope prudence will prevail over all and the judicial fraternity would reach a consensus that may lead to establish and firm up better practices and procedures so the nation would benefit.
Either way the Supreme Court which has been our moral conscience should settle the issue at the earliest as it can have far-reaching consequences for the country as the faith of the people in the judiciary is at stake. However, the Government has wisely left the issues raised by the four judges as “an internal” matter of the judiciary, thereby making clear it is unlikely to interfere.
Undeniably, a divided house in India’s top court raises broader questions about the quality of our legal system as it regularly rules on significant business and economic matters. Despite jumping 30 spots on the World Bank ease of doing business ranking, India remains 164th in the world for “enforcing contracts,” in part because of the subjective allotment of judges to cases.
Clearly, it is time we take a good second look at the selection process of Supreme Court judges and make sure choices are transparent, deserving and above board. Oft one has heard accusations of a certain lawyer being appointed only because he was close to the power dispensation and the Government of the day selecting their chosen few.
Quis custodiet ipsos custodes? Who will guard the guards? If safeguarding justice of ordinary citizens is in the hands of judges, who will guard them from the judges? How to ensure judges are honest enough to safeguard individual rights and upholding the Constitution – in letter and in spirit?
It is the written procedures, unwritten traditions and a passion for justice that ensures our judiciary is qualified to do its job. Does quality of judgment depend on the number of judges on the Bench? To quote Ayn Rand’s Howard Roark “A Committee’s decision is always a compromise between the best and worst opinions formed by its members”.
Clearly, this is a watershed moment for the judiciary. One hopes this churn will lead to a purging of what ails the higher judiciary in matters of transparency and fraternity. The time has come for ‘glasnost and perestroika’ so that the ‘Collegium System may be improved’ and lead to emergence of a more independent judiciary, and more good governance within.
An independent judiciary is one of the fundamentals of democracy and its four pillars on which the nation State rests. All in all, the questions raised need to be addressed post haste before any further damage is done to our judicial institution. Our Judge must discharge their duties honestly and honourably. They must like Caesar’s wife always be above suspicion. What gives? —– INFA