Just a 'Storm in a Teacup'?

Last Friday, four of the senior-most Supreme Court judges staged a sort of minor revolt against the Chief Justice of India, raising questions on “selective” case allocation and certain judicial orders, thereby sending shock waves right across the judiciary and the polity. This was the first time that anything like this had happened in the history of independent India. The four judges—Justices J. Chelameswar, Ranjan Gogoi, Kurian Joseph and Madan B. Lokur—released a letter they had written to Chief Justice Dipak Misra two months ago conceding that he was the master of roster but that it was “not a recognition of any superior authority, legal or factual, of the Chief Justice over his colleagues.” When asked specifically if they were upset over reference of the matter seeking a probe into the suspicious death of Justice Loya, Justice Gogoi said, “Yes”. It may be recalled that Justice 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 med an accused (later discharged), died of cardiac arrest in 2014. His family has raised doubts over the circumstances in which he died and has sought an independent probe into it. Pleas seeking such a probe came up for hearing in the Supreme Court last Friday, when the apex court expressed concerns over it and said it was a “serious issue”. The Supreme Court 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 details of the cases only to avoid embarrassing the institution, because “such departures have already damaged the image of this institution to some extent”.

The clash among the judges of the Supreme Court also comes in the wake of a controversial order in November 2017 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 Chief Justice of India 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 me of settling cases pending before the Supreme Court judges. Remarking 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 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,” they wrote in the letter. This said that 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” that would create “chaos”. The four judges also touched upon another controversial issue, mely the Memorandum of Procedure (MoP) on appointment of judges over which the Supreme Court had locked horns with the government. The letter said that since the government had not responded to the communication, “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.”

Regardless of the familiar views on what the judiciary ought to do or where the judiciary ought to maintain total silence, we tend to the view that the judiciary of any country cannot be either outside or above the major institutions that give shape and significance to democracy. We are of the view that like all other institutions, the judiciary too must maintain a certain degree of transparency and accountability to both the Constitution and the people of India. As such, the so-called revolt of the four Supreme Court judges deserve to be hailed as an important step towards keeping the judiciary in constant touch with the aspirations of the people and its duties to every Indian. Justice Chelameswar told the media last Friday that the four judges 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.” Justice Gogoi said they were “discharging a debt to the tion that has got us here”. The general opinion in such situations is that the judiciary is a wing of the government that must uphold and sustain its reputation at all costs. This is certainly true to the extent that there has to be respect and a certain amount of fear for the judiciary that is responsible for keeping us aware of what is lawful and what is not. And the judiciary has to be able to sustain its reputation at all costs if it is to be made responsible for law-abiding society. When the judges of the Supreme Court met on Monday morning for tea and discussed the differences within the judiciary, there was a certain amount of anguish over what had happened last Friday. All judges including the four dissenting ones went back to work and there was an attempt all round to pretend that nothing serious had happened. Bar Council chairman Mann Kumar Misra claimed that the story was over, and the Attorney General  called it a storm in a teacup. However we all know that nothing has really been settled as the Attorney General would like to pretend. One cannot help wondering whether the judiciary in India is in for a very major shake up.