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Talk Point: Are the checks and balances in the Indian judiciary failing?

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In an unprecedented move, four judges — J. Chelameswar, Ranjan Gogoi, M.B. Lokur and Kurian Joseph — held a press conference and said the administration of the Supreme Court is “sometimes not in order”, and that many “less than desirable things” have taken place. Justice Chelameswar said “our efforts have failed in convincing the Chief Justice of India to take steps to protect the institution”.

ThePrint asks: Are the checks and balances in the Indian judiciary failing?

The battle for the soul of the Supreme Court has just begun

Alok Prasanna Kumar
Senior resident fellow, Vidhi Centre for Legal Policy

Today’s press conference by the four senior-most judges of the Supreme Court of India (bar the Chief Justice) is an act of defiance. The letter released by the judges relates to the growing dissatisfaction of the judges at the conduct of CJI Dipak Misra in the manner in which cases are being allocated, and appointments are being made.

Though the letter does not mention it, one can infer that reference is being made to the shambolic manner in which the MCI bribery case was handled, and the listing of the petition seeking an inquiry into judge Loya’s death before Justice Arun Kumar Mishra’s bench (the tenth senior-most judge). The latter was confirmed by Justice Gogoi during the press conference.

The insinuation is clear and hard to miss – the CJI is picking and choosing benches to hear sensitive cases with no obvious reason, raising doubts about his intentions in the matter.

The second part of the letter relates to the growing discontent over the manner in which the executive has been allowed to ride roughshod over the judiciary in the manner of appointments. Recall that the Supreme Court had, in December 2015, directed that the Union government prepare a memorandum of procedure to reform the system of appointments along the lines indicated in the order. No such memorandum of procedure has been prepared by the government, and even the draft prepared and approved by the collegium has languished since March 2017.

The grievances listed out in the letter are by no means personal or purely administrative – they go to the heart of what constitutes public confidence in the judiciary. Is the Supreme Court being run in a manner that is fair and transparent? Are the judges being allowed to work in an independent and unbiased manner? Are they being allowed to properly hold the government accountable? This is not just about the Supreme Court alone – the Chief Justice of India is not just the head of the Supreme Court but the highest ranked judge in the country as a whole. What he does and says has a bearing on the judiciary as a whole.

What the four senior judges have also done is to come out and put to a rest any allegation that this is a personal grudge over a particular case. The grievance is also not personal – even if it could be said that Justice Chelameswar has cause to be aggrieved, the same can hardly be said of the three others. Justice Ranjan Gogoi is next in line to be Chief Justice of India, and has taken as much of a lead as Justice Chelameswar in calling the CJI to account for this behaviour. It would have been quite easy for the four senior-most judges to leave things as they are, let whatever happen, and walk away into retirement. Yet, they have chosen to put their careers and reputations on the line with this move.

The closest parallel one can think of happened in August 1973, when the Indira Gandhi-led Congress government rejected the advice of then-CJI S.M. Sikri and appointed Justice A.N. Ray as CJI. The “superseded judges”, Justices A.N. Shelat, Justice K.S. Hegde and Justice A.N. Grover, the ones who would have become CJI if the rule of seniority was followed, resigned in protest. Their resignations meant that CJI Ray’s tenure is permanently clouded with the belief that he was the government’s puppet – a belief further strengthened by his opinion in ADM Jabalpur v Shiv Kant Shukla holding that Indian citizens had no civil rights whatsoever during the Emergency.

The parallels are not exact, of course, and this time, the primary cause for concern is not the external interference with the judiciary but the internal failings – the questionable manner in which the CJI has gone about running the final judicial institution and fulfilling the attendant responsibilities of the office of the CJI. Public confidence in the judiciary cannot rest on an illusion of unity or blind belief; it requires repeated reinforcement through the actions of judges. At a time when the Supreme Court and the judiciary are subject to the most intense public scrutiny, it would be foolhardy to imagine that a judicial omertà would preserve public confidence when the facts suggest otherwise.

Whatever you want to call the press conference and the public release of the letter – a revolt, a rebellion or a mutiny – it is undeniable that there is a conflict and it is now out in the open.

The battle for the soul of the Supreme Court has just begun.

The judges must have been driven to the wall to take such a step

Arvind Datar
Senior advocate

It is a sad day because normally, judges don’t speak to the press. It is unprecedented. If one judge came out, it would be a different thing. The judges must have been driven to the wall for the four of them to take such a step. They must have had no other alternative.

If not the media, where else will they go? It should be pointed out that they aren’t doing this out of a sense of happiness. It is a way of telling the people that whatever is happening is without their consent. They owe responsibility to the people. This was their last resort.

The letter mentions only the R.P. Luthra vs Union of India case. On a macro level, perhaps, it is a step in the right direction. Hereafter, people will be careful about posting cases without any basis. Such a situation probably arose because junior judges were repeatedly allocated sensitive cases.

It is not a positive thing, but it is not appalling either. One must consider the background of the situation. Four judges from different high courts have come together; there must be a context in which they are operating. They have no personal axe to grind. They are opposing things they believe are not correct. It is completely wrong to call it “trade unionism”.

Instead of focussing on how they have raised the issue, we should focus on the future. We must ensure that the judiciary is above suspicion or allegation.

This is not a question of checks and balances. It is not a collegium system where there is a majority. The Chief Justice does not have prerogative to allocate cases as he likes. The four judges have brought to light the repeated allocation of cases in an arbitrary manner.

Except what has happened today, there is no other form of redress. If they have come to the media, they must be totally helpless. They must have no other choice.

It will help make the working of the Supreme Court more transparent. This has nothing to do with the executive. It’s an internal matter. They will sort it out themselves.

If the issues are addressed properly, it will improve the credibility of the judiciary in the long run. It will help usher in a better standard operating procedure.

This is the last nail in the coffin of the judiciary

R.S. Sodhi
Retired high court judge

As far as the judicial system is concerned, there is an administrative side and there is a judicial side. On the administrative side, the Chief Justice is the master of the rolls. You cannot argue about matters of administration. If anyone has a grievance, they may reach out to the Chief Justice and he will address it as and when he wants to.

Four people getting together cannot force the Chief Justice to answer. They can’t usurp his powers. They are equals amongst all judges. There is no such thing as a senior judge. That is a misnomer.

Yes, the four of them are part of the collegium by virtue of a precedent. They are supposed to perform their functions as members of the collegium. By going to the press in this manner, they have breached judicial precedents and judicial discipline. It goes to show how unfit they are to receive orders.

They have disentitled themselves from the remaining judges of the Supreme Court. They should resign if they feel so badly about it. You can’t challenge the Chief Justice’s authority to allocate cases. They are not in a position to dictate which case should be handled by whom.

Even if one wants a fairer system, there is something called a full court that procedurally addresses issues. But by attempting to strong-arm the Chief Justice, they have denigrated the judiciary in the eyes of the Indian public and international judicial forum. I am appalled that judges cannot stick to judicial discipline.

How are they interested in the Loya case? What personal axe do they have to grind? It doesn’t matter who handles a particular case, all judges are capable. In a Supreme Court judgment, it was ruled that the Chief Justice can even withdraw pending cases. If you don’t like the judgment, refer it to a larger bench.

In the medical college case, one judge, by a judicial order, said that it should be referred to senior-most judges. So the CJI had to pass a judicial order to overturn that. What’s wrong with that?

This is the last nail in the coffin of the judiciary. The government tried to do that for years, except the judiciary never crumbled. These four judges have reduced the judiciary in the eyes of the nation. They should be thrown out.

Compiled by Deeksha Bhardwaj.

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  1. When it was earlier decided by the judges are equal including the Chief Justice,but the chief justice has the prerogative to assign cases to the judges.Then why the four judjes are bikkering if it is alloted to the 10 th senior most judge.Fuurther what was Shekhar Gupta doing there.Why did Raja meet Justice Chemeleshwar.What is the connection?Is there a conspiracy?Madan Manjusha your glass also seems to be tainted.Democracy in India is well secured,you need not worry about that.It was the congress party which historically derailed democracy.Have you forgotten?

  2. Its a shame. SC struck down the NJAC to maintain the judicial supremacy. Now this. I agree with Justice Sodhi. This was not expected of the sipreme court judges.
    I see that there are several zttempts to politicize for or against the govt. I don’t think thete is any data to suggest that. Such people are eithrt foolish or crooks.

  3. Its not right to criticize the government in this particular case. As of now, none of the judges have put any allegation on the government. The issue the has been raised by them is the personal conduct of the CJI. His allocation of judges in different benches. What basically points out in this dissent are the loopholes that are present in our judiciary from appointment of judges to their allocation in different bench cases. I’m not sure whether its right to move this issue in public or not, but this would surely further bring down the already languishing faith of people in Indian judiciary. One thing that needs to noticed and thoroughly scrutinized is what the next CJI from these lot does in amending and helping the judicial system. Also, what they does in their limited tenure to restore the tarnished image of the Supreme Court.

  4. It’s an important event not just for the Indian judiciary but for the democracy itself. Thankful to the judges for having taken the call and for taking this bold step. The ruling class is hell bent upon destroying the democratic institutions. Judges’ revolt is a tight slap in their face. Some biased people (like jd Lodhi) maybe wearing tainted glasses; that will only blur their vision. Rest of us can clearly see what’s happening. Now onwards it’s for We the People to take this torch forward.

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