Who Shall Watch the Watchmen: Trouble in the Supreme Paradise
“Be you ever so high, the law is above you.” ~ Thomas Fuller, a 17th Century English churchman, and historian
No one could have predicted what 12th January 2018 would unfold. A seemingly quiet Friday, right before a long Pongal/Sankranti vacation for most of South India, was the day four senior Supreme Court Judges – Justice Chelameswar, Justice Ranjan Gogoi (the next Chief Justice of India in accordance with seniority), Justice Madan B Lokur and Justice Kurian Joseph chose to drop a bomb in the form of a historic press conference.
Why historic? Because sitting Judges of the Supreme Court never interact with members of the judiciary, let alone publicly state complaints against the sitting Chief Justice of India.
Justice Chelameswar, who led the group stated, “We have no pleasure doing it but we were compelled. For some time the administration of justice is not in order. Many things less than desirable has happened in the last three months. We have a responsibility to the nation to the institution that is why we thought fit to call this Press Conference.”
The event which seemed to trigger this press conference was related to the listing of the petition filed calling for an investigation into the death of Special CBI judge BH Loya, who was hearing the Sohrabuddin case. The matter was allegedly supposed to be listed before a bench compromising of the senior most Judges, which would have included the four Hon’ble judges named above, but was instead allocated to another Bench by the Chief Justice of India.
Verbatim of Press Conference (Credits Bar & Bench):
We went and made a request to the CJI (4 top judges) – “this particular thing is not in order”.
Press – Is this regarding Justice Loya case?
Justice Chelameswar – Consults with Gogoi. We are making a copy of the letter availble to the press
— Bar & Bench (@barandbench) January 12, 2018
Justice Gogoi – This is regarding assignment of a case
Press – Is this regarding Judge Loyas case
Justice Gogoi – Yes
— Bar & Bench (@barandbench) January 12, 2018
Though the Judges mentioned Justice BH Loya’s case as the trigger point, the Letter, which addressed to the Chief Justice of India, was actually drafted and sent to the CJI “couple of months ago” as per Justice Chelameswar, and was made available to the Press today, referred to another long-running problem.
The Letter begins with stating two principles:
The first Principle, drawn from Anglo-Saxon jurisprudence, is that the Chief Justice is the master of the roster and is privileged to determine which Bench/Judge is to deal with which case. But such a convention is devised only for disciplined and efficient running of everyday court affairs and does not create a superior authority, legal or factual, of the Chief Justice over the other Judges. As per the Letter, there are well established guiding principles which state what kind of matters require what kind of bench strength and seniority.
The Chief Justice is referred as the “first among equals”; he is not legally or factually greater than any of the other Judges (it is important to note here that a Chief Justice is appointed based on his seniority and age, not merit and skill among the other Judges).
The second related Principle, as pointed out by the Letter, is that being the “Master of the Roster”, the Chief Justice was not expected to keep for himself cases which should have been allotted to a larger Bench, or allot to junior judges matters which should have been allocated to the senior-most judges.
The Letter stated that a case of far-reaching consequence to the Nation (indicating perhaps to the case with respect to the death of Justice BH Loya) had been assigned by the CJI to a Bench of his preference without any rational basis of such assignment.
Following this, the Letter discusses Order dated 27th October 2017, in R.P Luthra vs the Union of India.
Mr. R P Luthra, a lawyer, had challenged the appointments made to the higher judiciary in the absence of the revised Memorandum of Procedure (MoP) [which is a Procedure which should be followed while appointing Judges to the higher Judiciary]. While hearing the petition, on 27th October 2017, the bench of Justices Adarsh Kumar Goel and Uday Umesh Lalit had issued a notice to the Centre and directed the presence of Attorney-General KK Venugopal. However, the case was transferred to the Bench headed by Justice Misra and Justices AK Sikri and Justice Amitava Roy, which on 8th October 2017 recalled the order passed by the previous Bench and stated that the Memorandum of Procedure should be only discussed on the Administrative side of the Court and not on its Judicial side.
As per the Letter, when the Memorandum of Procedure was already discussed and dealt with by a Constitutional Bench in the case of Supreme Court Advocates-on-Record Association and Another versus Union of India [(2016) 5 SCC 1] and did not require further observations to be made by either the Division Bench or the three-Judge Bench headed by Justice Mishra.
The Letter further went on to state that appointment of Judges was a serious business and should have been taken up in the Judicial side always, that too by a Constitutional Bench and that there were no grounds as to why a three-judge Bench decided to state that the matter could only be taken up only on the Administrative side.
The Letter deemed this incident of the three-Judge Bench taking up the power to decide that the matter related to MoP should be dealt on the Administrative side instead of letting a Constitutional Bench decide the same as a serious concern. The Letter also hinted at several other unmentioned instances of irregularity allegedly committed by the sitting Chief Justice of India but did not mention the same.
The Chief Justice of India, assisted by the Advocate General, was supposed to call a Press conference at 2 pm today to reply to the Press conference of the 4 senior judges. But for some unknown reasons, it was called off leaving the entire country confused and in the dark.
It is important to note that the Campaign for Judicial Accountability and Reforms (CJAR), has issued a Press Release appreciating the act of the four judges and highlighting multiple instances where the Chief Justice may have abused the power as the Master of the Roster.
It goes without saying that there is no precedent for something like this happening before. Whatever has happened today, and whatever happens as a result of the same, will be written about in history and discussed and debated for generations to come. But at the end of the day, it is important to note that legally speaking, the Chief Justice is not the master of the other Judges nor are his powers superior to that of the other four Judges. If not tackled immediately and properly, this incident will have consequences beyond anything we can imagine, including destroying the independence of the Judiciary forever.
The Chairman of the Bar Council of India has claimed the 7 member delegation of the BCI along with members of the SCBA have met all the Judges, including the CJI and amicabily, resolved the matter.
— ANI (@ANI) January 15, 2018
What was the final resolution? Will the Chief Justice change the pattern of allotment of cases? Will this incident act as a weapon in the hands of the Government to target the collegium system? That only time will tell.