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The Supreme Court crisis is trial by fire, and it will emerge stronger from it

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What does the press conference held by the four judges of the Supreme Court mean for the judiciary and what impact will it have? Here’s the full transcript of a Facebook Live by Shekhar Gupta and Apurva Vishwanath on the crisis.

Shekhar Gupta: So a big turning point today in Indian politics, and I would say in the institutional history of the Indian judiciary. Something that Justice Jasti Chelameswar, the second most senior judge in the Supreme Court described it as “a defining moment in India’s history”. It happened all of a sudden, there was a press conference at Justice Chelamswar’s residence by four of the most senior judges, one of whom, Justice Gogoi, is next in line to be Chief Justice of India.

They raised some questions about the administrative management of the Supreme Court of India, particularly to do with the allocation of cases and constitution of benches handling some cases. They did not go into specifics, and they issued a letter which is very carefully worded. You have to search between the lines, but if you do, you can see that the differences are about how some sensitive cases are being handed to certain judges and not to others. Now, these are sensitive issues to discuss, we can hold forth and editorialise, but we also need people who understand law and who are knowledgeable. So, who better than my colleague Apurva Vishwanath. She is the lawyer in the pack and she covers the judiciary, so she and I are going to answer these questions. She will answer more questions and I will editorialise.

Chinmay Bhogle: For a non-legal type, what is the significance of this press conference and what are the implications? A quick summary and overview would be helpful.

Shekhar Gupta: So I will speak about the political implications, but Apurva, tell us the implications for judiciary.

Apurva Vishwanath: When we asked this question to the four judges at the press conference, they said “Its business as usual for us. After the weekend, we will go back to court and start listening to cases again”. But it’s obviously not that simple. So now it is in the speculative realm, but it is a test for the Chief Justice. How he will respond, what action he will take, will he get back with his four judges and try and get their consensus again, or is it for the executive to step in and do something about this issue.

Shekhar Gupta: Well, if the judges are coming back after the weekend, let me twist a familiar old metaphor, which used to be “a week is a long time in politics”, and let me say a weekend is a long time in the history of Indian judiciary. That’s because after this weekend, the Indian judiciary will not be the same.  A line has been crossed that has never been crossed.

We have had judges rebel in the past, but not in public. In fact, during and before the Emergency, judges also fought with each other. There were articles in some newspapers, mentioning some judges by different names. Also, sort of humour articles, ‘middle articles’ as those were called, but this never came out in the open.

Politically, this does cause a problem for the government, and it does have the tectonic effect of shifting political equations in the country. Officially, the government response so far, which I believe is a sound response, is that this is the judiciary’s internal affair. Let them handle it. We have nothing to do with it. What do we have to do with it? That is, I think, the prudent line to take because the judiciary over the years has given itself all the powers of deliberating or deciding, appointing, sacking, and everything else about itself. So, at one level, government can sit on the side and watch the fun, but, on the other, there are many sensitive cases in this court, which are coming up in the next six to eight months. The current Chief Justice still has almost ten months to go, and many of these cases will come up for resolution in this period. The government cannot stand by and see what’s going on. What this does politically, is that it strengthens the opposition. It will give an impetus to many little political rebellions which are going on, and it will also give fuel to the opposition. Because now the charge that the government is interfering with the judiciary or the government is in cahoots with the judiciary and vice versa, although nobody in politics has yet said so, will build up. So to that extent, this has the potential of transforming India’s politics.

Question: Is it a kind of whistleblowing situation or hullaballoo, in terms of money, power and authority?

Apurva Vishwanath: Well, even in the press conference, the judge who took the lead to speak was Justice Chelameswar, and if you have seen what he has done over the past few months, it’s is not whistleblowing. He has been as open in his dissent as possible. He has written to the Chief Justice repeatedly. In fact, for a brief period of time he had even stopped attending the collegium meetings. He said ‘you have to make the minutes of these meetings public. Until then, I will not participate in them’. So everything about what Justice Chelameswar has done, has been open defiance. So in that sense, this is expected from him. But, for the other judges to come and support him, especially Justice Ranjan Gogoi, who has so much at stake because he is next in line to become Chief Justice, that is the significance of what happened today.

Shekhar Gupta: In fact, if you want to know more about Justice Chelameswar, please read Apurva’s profile on him on our website.

Vikram Katyal: Do you see an angle of political interference by the present regime?

Shekhar Gupta: Well, not just yet. You have to be careful to say things about the judiciary. No matter what happens. No matter how irritated sometimes we may be with the judiciary, even I have been very critical of them, especially with their interference in cricket which I think they ruined. And, also many other things, they pick up the odd case with a temple or an odd case of something or the other. The tendency of what I call ‘headline hunting’.

But, despite of that, when we have a real problem with authority, the government, a challenge to our freedom, we go running to the judiciary. So the judiciary is very valuable. We have to be very careful while making any insinuations. I would say that unless there is evidence, we cannot presume any interference by the government. I would say that what is happening right now is an institutional issue within the judiciary. Apurva, do you disagree?

Apurva Vishwanath: This is simply an issue with a crack in the house itself. Not to do with the executive, at least, as of now.

B.L. Khatri: Are we staring at an institutional crisis, what corrective measures should be undertaken to rectify the situation? Also, does the origin of today’s crisis date back to NJAC judgment struck down by Supreme Court Bench as unconstitutional and void?

Shekhar Gupta: In fact, you remind us that Justice Chelameswar dissented with that judgment.

Apurva Vishwanath: The crisis I think; one comes from the NJAC ruling. All the judges, apart from Chelameswar, the other four, agreed that even if the collegium system is flawed, we need to revive and keep at it. The revival hasn’t happened yet. A lot of suggestions came to the court about appointments, but none of them were implemented. In fact, the government and the Supreme Court are yet to agree on deciding the memorandum of procedure. It’s more than two years since the verdict, and they haven’t still figured out what to do. So the postscript of NJAC has had no effect on the court. So yes, in a sense, this comes from NJAC, but this also comes from the recent development in court, from the medical college issue when judges openly, again, spoke to the Chief Justice,and said this is not how you should be handling the case.

Shekhar Gupta: Well there was an insinuation that the Chief Justice of India might need to face an investigation for granting clearance to a medical college.

Apurva Vishwanath: That attempts were made to perhaps influence the outcome of a case which the Chief Justice was hearing.

Anurag Katiar: If the CJI does not allocate work, who should?

Apurva Vishwanath: Unfortunately, there is no one else who can allocate the work. The Chief Justice is the master of roster. Even in the seven-page letter that the judges wrote to the Chief Justice, they say this, that the law is that you are the master of the roster, but you cannot assign cases selectively to whatever benches you deem fit. So that is the question, if not the Chief Justice, no one else can assign these cases to anyone.

Sharad Gupta: On a lighter note, can the four judges be held under contempt of court?

Apurva Vishwanath: Well, there is no written rule of law that they cannot speak to the media or public, which in protocol, the judges follow. But yes there is nothing to do so.

Question: Shekhar, is it a Congress engineered judicial crisis to spread anarchy on the street? Just like caste violence, so the government faces the heat which can eventually bring Rahul and the Congress back to power?

Shekhar Gupta: All I will say is that this is Lutyens Delhi. This is the capital of conspiracy theories. So if you spread it far enough, you will find some people believing in it. But, there will be a million other conspiracy theories by the evening, so please don’t jump that far. BJP and its allies for now have a vast majority and the Congress only has 45 seats in Parliament. To come back to power, the Congress Party and Rahul Gandhi will need to work much harder and for very long, and do a lot more than just have a judicial crisis. So yes, a judicial crisis does help the Opposition, but to think that this will bring them back to power, I think, is exaggerated. I wont say optimistic, because I suspect that’s not what you want, but its exaggerated.

Deepak Joshi: Why should CJI not impeach these four judges?

Shekhar Gupta: Technically, CJI does not impeach, it’s Parliament that impeaches.

Deepak Joshi:  Why did they call a press conference? Why did they not approach the President? Washing their dirty linen in public is death of the system.

Apurva Vishwanath: The judges have held discussions amongst themselves for a very long time, and the answer again, is that approaching the President is also not protocol. The protocol is still to resolve it amongst themselves. The standards for impeachment are quite high. It requires a much larger threshold and these judges should have proven misbehavior, or they should have gone senile, to be impeached. So the four judges, while they can’t be impeached, the only thing they can do is request this Chief Justice. Which they say they have done repeatedly, but it has fallen on deaf ears. Again, as the judges said, they had no option but to go out and speak about it.

Nanda Ritu: If these judges cannot clean their own mess, how can a common citizen trust them for justice? Should we too hold press conferences rather than file a complaint?

Shekhar Gupta: I think you speak from anguish, and I think its justified anguish. But you know, sunshine is the best disinfectant. So if there is a problem in the judiciary, it’s a good thing that it’s now coming out in public and the janta is also watching. Until now, the judiciary, all their debates and differences, have all been remained confined to a very hallowed chamber. This is out now. I think it’s better for transparency.

Apurva Vishwanath: In a sense it is also what we wanted. We wanted the minutes of the collegium meeting out in public. This is what the government and the judges also wanted, but it has never happened before, and now it is happening. The last collegium meeting was over the weekend -on Sunday- and we didn’t know what happened in the meeting. And now, because these four judges are speaking, we know that there is a disagreement, there is dissent and that’s how it has come into the public.

Arun George: Will this showdown irreparably damage the institution of the Supreme Court. How does it repair its reputation after this? Does this make the position of the current CGI untenable?

Apurva Vishwanath: Well, it is really anyone’s guess as to how the Chief Justice will respond to all of this. Initially, he said he will come out and speak to the media. He is now waiting and he is now watching the developments very closely. We will only know how he reacts, once he does. But has the integrity of the Supreme Court irreparable? Well, as we have all been talking, we say this is the second H.R. Khanna moment. I think the Supreme Court and the Indian judiciary has had a moment like this before, if I can say, far worse than this and they have come out of it.

Shekhar Gupta: Yes, because somebody took a stand on a constitutional issue and was punished for it. Because those days the executive could decide who will be the Chief Justice of India.

Apurva Vishwanath: So, if they have come out of it, and they have come out of it in a good way, this is also a test like that.

Shekhar Gupta: I think it’s a trial by fire and if you come out of a trial by fire, you always come out stronger, and I do believe that the Indian judiciary will do so.

Anshul Kumar Pandey: How justified is the executive in labeling this as an internal issue of the judiciary, when the Memorandum of Procedure for the appointment of judges has been in limbo for the last two years?

Shekhar Gupta: I gave you my answer to this. The only correct thing that the executive can, and should, do now is say that this is a matter of the judiciary and we should stay out of it. The second issue, as to why the MoP has been pending, and its consequence, maybe Apurva has an answer.

Apurva Vishwanath: On most of the issues the government and Supreme Court have agreed on the MoP. They’ve been saying for about a year now that it’s just the fine print and finer details they have to go through. But there are issues with it, it hasn’t come through. In spite of the MoP not being in place, several appointments have been made. Last week, we had more than 10 appointments to the Allahabad High Court. It’s not as if the MoP has been the only reason for all this confrontation between the executive and the judiciary, there are issues beyond that as well. So, keeping aside the MoP, there is still a lot the executive and the judiciary have to talk about.

Ananya Bhardwaj: What can be a possible immediate implication of this press conference? What next?

Shekhar Gupta:  I will tell you politically what next. I think everybody will go into a huddle now. There will be an effort to do some damage control. The CJI, internally, may try to call everybody and I notice Soli Sorabjee has already spoken. Some of these eminences will speak now. There’ll be an effort to bring about a truce, some kind of restoration of a working relationship. Generally, yes, I think this is not a commotion that will die out soon.

Apurva Vishwanath: And it is also the Parliament. For impeachment, you still need only 50 MPs. So even if nothing comes out of it, an impeachment motion could be on the cards, if the Opposition plays it well.

Anurag Katiar: CJI Misra has been at the helm for only 5 months. All troubles started now? There is more than what meets the eye.

Apurva Vishwanath: There have been a string of issues since Dipak Misra took over as Chief Justice. More important was how he dealt with the allegations, that in a way connected him to the medical college cases. So, Justice Chelameswar has spoken about it. Not just Justice Chelameswar, other judges said the manner in which the court dealt with the issue was wrong.  After that, in a sense, Justice Chelameswar and the Chief Justice haven’t patched up. The animosity continued. Cases were constantly taken away from particular judges and assigned to somebody else. In fact, some key cases, like one case linked to the 2G scam, was taken away from Chelameswar. So, the issue was that they couldn’t get the house in order after what happened.

Shekhar Gupta: At the same time, it’s also true that the entire Medical Council issue also arose from the Supreme Court intervening in an issue of the executive. If you ask me, this was an odd sort of judgment, odd order, where one judge on one bench decided that court was going to get into the Medical Council issue and issues of medical education.

A Supreme Court-empowered committee was set up, headed by whom else but Justice RM Lodha, who also heads the cricket committee and many others. That committee also had Vinod Rai, who also is on the BCCI committee empowered by the court. That committee took it upon itself to give clearances to medical colleges. It was unfortunate that this led to so many questions, that earlier this year, the government cancelled the clearances given by that committee to 31 medical colleges, and that committee was disbanded.

Some of the controversies that have now hit this court and the CJI pertain to some of the medical colleges which have been cleared under judicial orders. So once again, my own view is that the judiciary, particularly the higher judiciary, should focus on issues that are germane to it, which are issues of larger public interest, instead of trying to either micromanage problems which are executive in nature or just trying to be the God of Small Things.

Apurva Vishwanath: To be fair, a lot of these cases were dealt with by other judges before Dipak Misra. When we talk about the court, we talk about the Supreme Court as a whole and not one judge, not just the CJI.

Shekhar Gupta: When you find the Supreme Court of India getting into dahi handi, you find the Bombay High Court saying IPL matches can’t be held because it hasn’t rained enough—I’m sorry to say this—but the judges are trivializing their own institution. When people are waiting for years and years in murder cases, they have no business to do this. They are trying to run the management of some temple, I’m sorry to use it in this context, but this is playing God of Small Things. With due apologies to Arundhati Roy. This is where the judiciary has gone wrong and in some way they are paying for it, because every institution has limited capital. Politicians have limited political capital; we journalists have limited professional capital. Similarly, judges have limited judicial and institutional capital and they’ve been frittering it away.

Chitleen Sethi: What if CJI does not react at all and everything goes back to being what it is? Can bar associations or public spirited persons take forward the issues raised in the judges’ letter? If yes, how?

Apurva Vishwanath: Absolutely. The law was challenged by the Supreme Court Bar Association. After the medical college issue, the Supreme Court Bar Association intervened and said they want to have a stake in what’s happening in court, so you will probably see a flurry of PILs and intervening applications saying we want this to be resolved. Again, till the Chief Justice reacts to the entire controversy, we don’t know what is going to happen.

Shekhar Gupta: Do you think it’ll be more prudent for him to not react at all, and carry on?

Apurva Vishwanath: After the medical college case, Justice Dipak Misra did talk about it. He talked about it in court, while he was hearing other cases, so it is not in his nature to not react at all. It’s just a matter of time, and we should expect his response anytime.

Anil Vij: There was talk of an All India Judicial Service on the lines of civil services. Do you think that the NDA government will pass this kind of bill as it has a majority in Lok Sabha?

Apurva Vishwanath: This was really to do with the lower judiciary, and even the courts and High Courts have formed a sort of consensus on this issue. So, the crisis we’re really talking about is also the higher judiciary, which of course inspires confidence in the lower judiciary. But for the High Courts and the Supreme Court, the All-India Judicial Service will not change things drastically.

Shekhar Gupta: At the same time, the quality of many of the orders, you’ve found that High Court judge in Jaipur, the peacock tears wala, Justice Karnan, there was an order of Himachal Pradesh High Court which the Supreme Court sent back, saying they can’t understand what the order means. So, it also tells you that the catchment area of talent for the appointment of judges in higher courts has to be expanded, and better judges have to come into the lower judiciary as well, because trials in the Indian system take place only in the lower judiciary level. Fresh evidence, particularly in criminal cases, is not put forward at the appeal stage, so it is a trial court which is vital.  That’s where big improvements are needed, and frankly, I am a supporter of the idea of an All India Judicial Services examination along the lines of All India Civil Services.

Sanjay Mukim: If I am following one God only, and that God is proved unreliable, where should I go? Please replace ‘God’ with Supreme Court.

Shekhar Gupta: I’d say don’t lose faith so quickly. The Supreme Court has given us stellar judgments and is continuing to give us stellar judgments. It does many things we disagree with, but the fact is, when we disagree, it lets us argue with them. This is a Supreme Court with a very big heart and very broad shoulders, so don’t lose faith in it so quickly. Human beings can also disagree with each other, sometimes they can have fights. It’s the nature of today’s public discourse that things don’t remain indoors, they do come out. Welcome the fact that it has come out in public, instead of simmering inside.

Apurva Vishwanath: In fact, this is probably one of the good things to happen to the judiciary in a long, long time, that the top judges are coming out and talking about these issues in the open. So, we would hear whispers about it, we would see some stories written about it, but we would never know what the real issue is. And now, the next disagreement that happens will also be forced into the public, given today’s press conference. I would say it’s something that is positive and something that will lead to good things in the judiciary.

Shekhar Gupta: I don’t particularly want to see judges having Twitter handles, or Facebook pages explaining their orders. If you see an article that our Editor Pranab Dhal Samanta wrote earlier this week, there is a need for the Supreme Court also to bat for transparency within judicial processes. In fact, he suggested—and I fully endorse this idea—that Supreme Court proceedings should be broadcast like Parliament proceedings. The Supreme Court can have its own channel, like the Lok Sabha does. I don’t know what movies they will show when the court is not in session, but unlike the two Houses of Parliament, these people will not have adjournments because somebody makes noise. I think the time has come for the higher judiciary to look at some transparency within itself.

Sushil Jalan: Crores of cases pending across the country. SC judges fighting amongst themselves. Degradation of judiciary. What judicial reforms do you propose in the short term?

Shekhar Gupta: I have a small wish list. One is to extend the retirement age for Supreme Court and High Court judges to 70, so everybody says in service for longer. In the American system, you serve for life. We don’t have to do that, but at least till 70. Sixty for High Courts is too soon to retire and people get worried about whether they will make the cut to the Supreme Court or not. Similarly, 65 for SC judges is too early to retire.

Remember, this is the post-statin age, people live longer and people can keep their arteries nice and clean for much longer. People should be allowed to work full-time in the judiciary for a bit longer, but then Supreme Court judges should commit to not taking any post-retirement jobs from any company. If you see a study by Vidhi Legal, it tells you that 70 per cent of all retiring judges of the Supreme Court of India in the past 30 years have found some government job on some tribunal or something. That has to stop.

A low point in the history of the Indian judiciary came fairly recently, when Justice Sathasivam, one of our recent Supreme Court judges, took the job of Governor of Kerala. It sets a bad precedent. It also tells many others, if you could do it, why can’t I?. I think that’s where the health of the judiciary needs attention. Unlike any other profession, for the judiciary, it’s a case where the physician really has to heal himself because others are not allowed to even feel his pulse.

Apurva Vishwanath: I have more immediate concerns the Supreme Court can handle. One, make all minutes of the collegiums meetings public. Talk about why you have appointed someone in particular, transferred, or rejected their candidature when appointing judges to the higher judiciary.

Two, the Chief Justice of course has the prerogative to assign cases to whomever he wishes to, but that discretion cannot be dealt with in an arbitrary manner. So, if you are doing something out of turn, give reasons.

The last thing is, when judges are recused from cases, give reasons. When you do all these things that bring in some sense of transparency in the court, that will inspire confidence.

Shekhar Gupta: To that extent, today’s press conference also is a blow for transparency. I don’t think the world will come to an end on Monday. I think it’s a little shock for the better.

Transcribed by Nishtha Jaiswal and Chahat Rana

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  1. This Vedic astrology writer’s related predictions in article – “ Astrologically speaking , some highlights for India in coming year 2018” – published last year at on 19 October , 2017. Just reproducing : -“ The year 2018 looks to be bringing to focus themes of political , religious or spiritual nature for a heightened or sharp analysis or discussion. Such analysis or discussion could also pave way for new enactments or judicial pronouncements having far reaching significance or value covering issues related to ……….political class”. Here , the words political and spiritual also include judiciary because they exercise sovereign power of State and are required to be ‘spiritual’ in that exercise, which means absolute honesty , integrity and devotion to the Constitution. So intent of the prediction can be read to cover themes of judiciary also for a heightened or sharp analysis and discussion. At another place in the article it has been predicted : -“Mid-March to 31 May 2018…………..Those involved in decision making , or governance of big enterprises , or big organizations or think-tanks in the Govt could be prone to errors or fault-lines or controversies giving rise to need for revision or amendment”. So while prediction does cover about precise scenario in judiciary to surface , it calls for reading between the lines.

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