DEMOCRACY WILL NOT SURVIVE WITHOUT A FREE JUDICIARY

By | January 14, 2018
4 Supreme Court Judges - Judiciary

“It is an extraordinary event in the history of any nation. There is no pleasure in this, we were compelled to do this, the administration of the Supreme Court is not in order,”

 – Justice Chelameswar.


INTRODUCTION

In an unprecedented move, four Supreme Court judges today came out against the Chief Justice of India, saying that events in the Supreme Court left them with no choice but to address the nation. Hon’ble Justice J Chelameshwar said the administration of the nation’s top court was not in order. This is the first time in the history of the Supreme Court that something of this kind has happened. The press conference was held at the residence of Justice J. Chelameswar and also addressed by Justices Ranjan Gogoi, Madan B. Lokur, and Kurian Joseph. The press conference was held while the Supreme Court was in session and the day after two important appointments to the apex court was made.

“We met CJI this morning. We collectively tried to persuade CJI that certain things aren’t in order to take remedial measures but unfortunately, our efforts failed,” says Justice Chelameswar.

“The four of us gave a letter to the Chief Justice of India (CJI) some months ago,” the Justices revealed. “It is a discharge of debt to the nation which has brought us here, Justice Ranjan Gogoi told the media.

On being asked repeatedly, the Justice Gogoi told journalists that the press conference was prompted by issues surrounding the death of special CBI Judge B.H. Loya.

Post judges’ press conference, Prime Minister Narendra Modi calls law minister, law officer for a meeting.

WHAT WAS THE PRESS CONFERENCE FOR?

 The judges did not tell any specifics issue on what they are seeking on what issues they raised. However, they said they would make the letter they submitted to the CJI available to the press at the event and said everything they wanted to say had been presented in that. “There have been instances where case having far-reaching consequences for the Nation and the institution had been assigned by the Chief Justice of this Court selectively to the benches “of their preference” without any rationale for this assignment. This must be guarded against at all costs.”

“In that decision [on C.S. Karnan] (referred to in R.P. Luthra), two of us observed that there is a need to revisit the process of appointment of judges and to set up a mechanism for corrective measures other than impeachment. No observation was made by any of the seven learned judges with regard to the Memorandum of Procedure. Any issue with regard to the Memorandum of Procedure should be discussed in the Chief Justices’ Conference and by the Full Court. Such a matter of grave importance, if at all required to be taken on the judicial side, should be dealt with by none other than a Constitution Bench,” the letter continues.

FULL TEXT OF THE LETTER

Dear Chief Justice,

It is with great anguish and concern that we have thought it proper to address this letter to you so as to highlight certain judicial orders passed by this Court which has adversely affected the overall functioning of the justice delivery system and the independence of the High Courts besides impacting the administrative functioning of the Office of the Hon’ble the Chief Justice of India.

From the date of establishment of the three chartered High Courts of Calcutta, Bombay, and Madras, certain traditions and conventions in the judicial administration have been well established. The traditions were embraced by this Court which came into existence almost a century after the above mentioned chartered High Courts. These traditions have their roots in the Anglo-Saxon jurisprudence and practice.

One of the well-settled principles is that the Chief Justice is the master of the roster with a privilege to determine the roster, necessity in multi-numbered courts for an orderly transaction of business and appropriate arrangements with respect to matters with which member/bench of this Court (as the case may be) is required to deal with which case or class of cases is to be made. The convention of recognizing the privilege of the Chief Justice to form the roster and assign cases to different members/benches of the court is a convention designed for a disciplined and efficient transaction of business of the Court but not a recognition of any superior authority, legal or factual, of the Chief Justice over his colleagues.

It is too well settled in the jurisprudence of this country that the Chief Justice is only the first amongst equals — nothing more or nothing less. In the matter of the determination of the roster there are well-settled and time-honored conventions guiding the Chief Justice, be the conventions dealing with the strength of the bench which is required to deal with a particular case 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.

Any departure from the above two rules would not only lead to unpleasant and undesirable consequences of creating doubt in the body politic about the integrity of the institution. Not to talk about the chaos that would result from such departure.

We are sorry to say that off late the twin rules mentioned above have not been adhered to. There have been instances where a case has far-reaching consequences for the Nation and the institution had been assigned by the Chief Justices of the Court selectively to the benches “of their preference” without any rational basis for such assignment. This must be guarded against at all costs.

We are not mentioning details only to avoid embarrassing the institution but note that such departures have already damaged the image of this institution to some extent.

In the above context, we deem it proper to address you presently with regard to the Order dated 27th October 2017 in R.P. Luthra vs. Union of India to the effect that there should be no further delay in finalizing the Memorandum of Procedure in the larger public interest. When the Memorandum of Procedure was the subject matter of a decision of a Constitution Bench of this Court in Supreme Court Advocates-on-Record Association and Anr. vs. Union of India [ (2016) 5 SCC 1] it is difficult to understand as to how any other Bench could have dealt with the matter.

The above apart, subsequent to the decision of the Constitution Bench, detailed discussions were held by the Collegium of five judges (including yourself) and the Memorandum of Procedure was finalized and sent by the then Hon’ble the Chief Justice of India to the government of India in March 2017. The Government of India has not responded to the communication and in view of this silence, it must be taken that the Memorandum of Procedure as finalized by the Collegium has been accepted by the Government of India on the basis of the order of this Court in Supreme Court Advocates-on-Record-Association (Supra). There was, therefore, no occasion for the Bench to make an observation with regard to the finalization of the Memorandum of Procedure or that that issue cannot linger on for an indefinite period.

On 4th July 2017, a Bench of seven Judges of this Court decided In Re, Hon’ble Shri Justice C.S. Karnan (2017) 1SCC 1]. In that decision (refer to in R.P. Luthra), two of us observed that there is a need to revisit the process of appointment of judges and to set up a mechanism for corrective measures other than impeachment. No observation was made by any of the seven learned judges with regard to the Memorandum of Procedure.

Any issue with regard to the Memorandum of Procedure should be discussed in the Chief Justices’ Conference and by the Full Court. Such a matter of grave importance, if at all required to be taken on the judicial side, should be dealt with by none other than a Constitution Bench.

The above development must be viewed with serious concern. The Hon’ble Chief Justice of India is duty bound to rectify the situation and take appropriate remedial measures after a full discussion with the other members of the Collegium and at a later stage, if required, with other Hon’ble Judges of this Court.

Once the issue arising from the order dated 27th October 2017 in R.P. Luthra vs. Union of India, mentioned above, is adequately addressed by you and if it becomes so necessary, we will apprise you specifically of the other judicial orders passed by this Court which would require to be similarly dealt with.

With kind regards,

Chellameshwar

Ranjan Gogoi

Madan B. Lokur

Kurian Joseph

ABOUT HON`BLE JUSTICE J. CHELLAMESHWAR

If it was some other system, he would have been often referred to as the ‘Rebel’ or if it was an industry or company we can call ‘Whistle-Blower’. But we cannot use these term for our judge in India. Justice J Chelameswar, the second most senior judge in the Supreme Court, and was in the headlines recently when he differed with his fellow judges — be it the judges’ appointment case or judges’ bribery case. Since many of these cases involved his brethren, his dissents were distinguished. However, an assiduous look at Justice Chelameswar’s tenure would be a testimony of someone, who has always spoken his mind as a person, and as a judge delivered several landmark judgments which helped the jurisprudence evolve.

The Apex Court, by a 4:1 majority, struck down a 99th constitutional amendment and thus the government’s attempt to have a say in judges’ appointments through the National Judicial Appointments Commission. Justice Chelameswar was that lone dissenter when he said the Collegium system must go, for an exclusive authority to appoint judges was not the only means for an independent judiciary.
He asked the judiciary to introspect if the Collegium system has become “a euphemism for nepotism” where “mediocrity or even less” is promoted and a “constitutional disorder” does not look distant. His judgment was seen by many as a ventilation of his personal sentiments since he missed out to be Chief Justice of India because of his delayed elevation by the Supreme Court Collegium.

Can you blame a judge for his attempts to reform a system, which has been denounced by every senior lawyer and every judge? Most judges do it after they retire but Justice Chelameswar is in fact the one who came out while in office, discharging his judicial functions. Justice Chelameswar highlighted the need to maintain records, have some documentary notes of the deliberation process that would result in appointing the judges in this country. Supreme Court judges, who have always batted for transparency and proper record-keeping, cannot be and should not be seen as opposing this mandate when it comes to picking up judges in the country. And hence, what can exactly be wrong with one of their own asking to lead by example?

If what Justice Chelameswar had raised was not proper, why the Collegium, a year after his dissent, passed the resolution to put all decision of the Collegium on the website? The resolution maintained that it was in the interest of transparency that records are held, and they are made public.

ACTION PERCEIVED BY THE LEGAL COMMUNITY

Prashant Bhushan, Senior SC Lawyer: I express my gratitude to the SC judges. CJI Dipak Misra has ‘blatantly’ misused his power as ‘master of roster’ to achieve particular outcomes in cases. The Chief Justice must resign if he has any sense of responsibility.

Indira Jaising, Senior SC lawyer: I agree with the purpose of the conference. The justices who came out aren’t anti-Chief Justice. People of India have the right to know what’s going on in the collegium. This is just the tip of the iceberg.

Retd. Justice R Sodhi: Issues don’t matter. It is their complaint on the administrative matter. They are only four, there are 23 others. Four of them get together and show the Chief Justice in a poor light. It is immature & childish behavior. I think all 4 judges should be impeached, they have no business to sit there and deliver verdicts anymore. This trade unionism is wrong. Democracy in danger is not for them to say, we have parliament, courts, police functioning

Subramanian Swamy, Senior lawyer & BJP leader: We can’t criticize them, they are men of great integrity & have sacrificed a lot of their legal career, where they could’ve made money as senior counsels. We must respect them. PM must ensure that the 4 judges & CJI, in fact, whole SC come to one opinion & proceed further.

Salman Khurshid, Congress Leader & Senior Lawyer: This matter will ultimately be decided by the court. The judges will have to sort out the issues among themselves.

Ujjwal Nikam, Senior Lawyer: I don’t want to advise SC judges. However, there are other means to sort out any problem. This speaks badly of our democracy and judiciary. This is a black day for Judiciary. Today’s press conference would cause a bad precedent. From now on every common man could look at all judicial order with suspicion. Every judgment will be questioned.

Retd. Justice Mukul Mudgal: I don’t think it’s a challenge to the CJI’s authority. The four judges should have had compelling reasons. They have a great reputation.

Yogendra Yadav, National President of Swaraj India: “So, it’s not just one case. Some of the most respected judges have raised larger questions about judiciary’s independence is being compromised. Time for every democracy loving citizen to stand for the judiciary, stand with independent judges.”

KK Venugopal, Attorney General of India:  today said the unprecedented move by the four senior Supreme Court judges in holding a press conference “could have been avoided” and the judges would now have to act in “statesmanship” to ensure complete harmony.”

Sambit Patra, BJP official Spoke Person: This is an internal matter of the Supreme Court, AG has given a statement. No politics should be played.

CONCLUSION

Writing for the Indian Express Dushyant Dave, senior advocate and former president of the Supreme Court Bar Association raised many of the same issues. He wrote: Even though empowered with the order of November 10, 2017, does the Chief Justice of India possess absolute and arbitrary powers to “constitute the Benches of the Court and allocate cases to the Benches so constituted”? Of course not. He is as much bound by the Rule of Law as anybody else. If there is one principle firmly rooted in our constitutionalism, it is: “Be you ever so high, law is above you.”

We need to understand that it is the people to whom the Supreme Court is serving and hiding such kind of gross discrepancies would be cheating with the people of the country. People deserve to know, and they must know. Just for sake of safeguarding the integrity of an institutional, we can’t jeopardize the interest of the masses. Let the democracy decide. Sooner or later this was bound to happen. And we all know that SC is not all pure and pious as they make it appear. There is indeed a great amount of influence of the executives in many matters and this needs to stop. Let there be a revolution if it is a good cause.


– Subham Saurabh

Content Writer @ Legal Bites


REFERENCES

  1. Ravish Kumar, Prime Time: Ravish Ki Report, NDTV India.
  2. Sumana Nandy, NDTV, Available At https://www.ndtv.com/india-news/4-senior-supreme-court-judges-address-media-for-the-first-time-live-updates-1799155
  3. Utkarsh Aanad, Justice Chelameswar: Meet The ‘Rebel’ in the Supreme Court, News 18, Available At http://www.news18.com/news/india/meet-justice-chelameswar-the-rebel-in-the-supreme-court-1630179.html
  4. The Wire Staff, Loya Case the Tipping Point, Four SC Judges Say Democracy Is in Danger, The Wire, Available At Https://Thewire.In/213062/Sc-Justices-Hold-Historic-Press-Conference-Triggered-Judge-Loya-Case/
  5. ET Online, The Economics Times, Available At https://economictimes.indiatimes.com/news/politics-and-nation
  6. BS Web Team, The Business Standard, Available At http://www.business-standard.com/article/current-affairs/pain-in-judges-eyes-could-be-seen-kts-tulsi-on-sc-judges-press-meet-118011200402_1.html .

 

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