The unprecedented turmoil in the Supreme Court in the wake of the four senior most judges taking exception to CJI Dipak Misra’s style of functioning nine days back on January 12 has underlined the need for urgent judicial reforms.
Backed by certain brother judges, the CJI initiated efforts last Tuesday and Wednesday to end the imbroglio. The endeavour was to resolve issues within the four walls of the Supreme Court steering clear of any outside intervention.
The dissenting judges have been attending court since Monday so as not to precipitate matters. Justices J Chalameswar, Rajan Gogoi, Madan Lokur and Kurian Joseph — maintained they had gone public on the ground that some damage had already been done to the highest judiciary and they were trying to contain it.
When the apex court reassembled on Monday week after the weekend, CJI Misra as the “Master of the Roster” listed seven cases to be heard by a Constitution bench leaving out the four senior most judges. The five judge bench comprises the Chief Justice himself, Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan.
It has before it a range of crucial matters like the challenge to the constitutional validity of the Aadhar Act and its 2013 judgement decriminalising gay sex between consenting adults among others. The same combination of judges had heard various Constitution Bench matters in October last year including the power tussle between the Centre and the Delhi government over the administrative jurisdiction and a matter pertaining to passive euthanasia.
While it was widely believed that the issues raised by the four judges remained an internal matter of the Supreme Court, various Bar councils, retired judges and civil society were emphatic that the matter should be resolved quickly.
Differences among judges was more than procedural revolving around Bench formation. At the same time there are other organised centres of power including alleged murmurs of political interference. At the end of it all citizens need to be convinced about the Supreme Court’s key institutional role of providing unhindered justice.
This aspect has taken a beating recently. If the four judges believe ulterior motives have been at play in the constitution of Benches, the people have the right to know the basis on which it is done. Several eminent jurists and respected public figures have been highly critical of the four judges for going public against the CJI.
A case in point is that of the bench headed by Justice Arun Misra ordering Tuesday last that the PIL seeking an independent probe into the death of special CBI judge B H Loya be put up before an “appropriate bench”. The judge took this stand as he believed that the four senior judges “had ruined his reputation” by projecting his bench as being preferred by the CJI in sensitive cases.
Amid the standoff CJI Dipak Misra decided to hear tomorrow (Monday, January 22) two petitions demanding an independent probe into the death of Judge Loya.
With internal matters being made public, there is inherent danger of the people losing faith in the courts causing irreparable damage to the the institution. Keeping such matters under wraps comes in the way of people taking a view on the basis of facts.
The process of the constitution of Benches to adjudicate matters has to be transparent and based on norms even as the Chief Justices have to control that process. Constitution of Benches is an administrative act and the people have the right to know the criteria of its constitution. This will add to their trust in the courts.
Impartial observers believe the rationale on which the CJI constitutes a Bench may be made known to avoid ulterior motives being at play. There should be no room for any doubt in this regard.
The issue of allocation of cases to different Benches has been simmering for several months. The problem pertains to the CJI reportedly ignoring senior judges in allocating important and high profile cases. The possibility of this administrative tussle might have prevailed during the tenure of many CJIs in different governments at the Centre.
The problem stems from allocating important cases to junior judges. This has invariably led to the CJI’s integrity being questioned. Has the much talked about judicial independence led to self preservation of judges and judicial activism.
On his part, Prime Minister Narendra Modi has time and again drawn attention of the three arms of the democratic system — the Executive, Legislature and Judiciary — impressing upon them to exercise utmost caution in steering clear of stepping on each other’s toes to avoid working at cross purposes.
What cannot be lost sight of is that the complaint this time is different compared to the past as four senior most judges of the Supreme Court are involved and not a single judge. The importance of four of the five-member Collegium headed by the CJI have aired their differences cannot be undermined.
The Collegium is responsible for judicial appointments. The resolution of the current imbroglio must involve discussions among all the judges of the five-member Collegium of the Apex court for reaching a settlement on what the rules of the game must be. In the circumstances ‘Rostering’ cannot be seen as excluding the seniors.
Meanwhile, advocate Prashant Bhushan told the Supreme Court last Tuesday to invoke its in-house procedure to deal with his demand for a probe against CJI Dipak Misra for “several acts of serious misconduct” that includes anti-dating of a memo asserting the CJI’s administrative powers.
Rendering impartial justice cannot be compromised. Tradition and jurisprudence deny power to a Chief Justice to send cases to the courts of his own preference thereby avoiding being a gate keeper for justice as an interested party in favour or against anyone. That is why a system is in place seeking to minimise the risk of injustice.
If there is an anomaly whereby the system fails to deliver justice, then it must be remedied expeditiously. What cannot be lost sight of amid all this is the massive backlog of cases in the Supreme Court. As a delicate situation has arisen, it is also a moment of reckoning for other institutions in the democratic system encompassing the Executive and the Legislature.
There is urgent need for revamping the judicial administration along with the system of appointment of judges. The present crisis has underlined the imperative need for bringing about direly needed judicial reforms. The question is will the Supreme Court be able to evolve a consensus on this issue which brooks no delay.