Crisis of confidence

“An extraordinary event in the history of any nation, and of this institution, the judiciary,” was how Justice J. Chelameswar, the seniormost among the four judges—the others were Justices Ranjan Gogoi, Madan B. Lokur and Kurian Joseph—who had called at short notice a press conference at his residence in New Delhi on January 12 to alert the nation about the ongoing crisis of confidence in the Chief Justice of India (CJI) Dipak Misra, described the development.

Two weeks after the press conference, the issues that forced the judges to take the extraordinary decision to go public on their differences with the CJI were nowhere near resolution, despite the CJI getting enough opportunities to discuss them with his four colleagues face to face.

The Supreme Court has been functioning normally ever since January 12, with the CJI and 24 judges hearing the cases listed before them and delivering judgments. As they presided over the benches at court numbers 2,3,4 and 5 at the Supreme Court, the four judges themselves presented a veneer of normalcy and seemed to observe equanimity in the face of the grave challenges to the institution that forced them to take the extreme step of holding a press conference to air their differences with the CJI.

Although the conduct of the four judges in holding the press conference constitutes a serious breach of the professional code that binds them, what they said at the conference made one wonder whether their not doing so would have resulted in the breach of the oath they took as judges. The oath they took while being sworn in as judges requires them to perform the duties of their office without fear or favour or affection or ill-will, and uphold the Constitution and the laws.

At the press conference, Justice Chelameswar said they had no pleasure in their hearts in having to address the nation and yet they were doing so because the survival of democracy in the country depended on an independent and impartial judiciary, which, they implied, was under threat because of the CJI’s omissions and commissions.

“For some time, the administration of the Supreme Court is not in order. Many things which are less than desirable have happened in the last few months. We collectively tried to persuade the Chief Justice that he should take remedial steps. Unfortunately, our efforts failed. Even this morning, four of us met the Chief Justice. We could not convince him. We were left with no choice but to communicate to the nation, ‘Please take care of this institution’.”

This was how Justice Chelameswar summed up their collective angst. As one could make out, the judges were expressing their exasperation, as the in-house mechanism, if at all one exists, to address such concerns had failed, leaving them with no option but to induce public opinion to save the institution, which, they feared, could lose its hallmarks of independence from the executive, an essential ingredient of democracy in India.

Even while airing their differences with the CJI, the four judges were conscious of the discipline they had to observe and not to make unfounded allegations against the CJI, which could potentially damage the institution.

The judges’ sincerity in holding the press conference was too evident to miss: three of them, except Justice Gogoi, were to retire this year. Justice Gogoi is in the line of succession as the CJI, after CJI Dipak Misra retires on October 2, and will have more than a year’s tenure. As per convention, the outgoing CJI has to make a recommendation to appoint the judge next in line as the next CJI. Therefore, one can infer that Justice Gogoi must have been convinced that institutional interests mattered more than his personal ambitions. Likewise, the three other judges, who are to retire during this year, had a lot at stake: post-retirement benefits from the executive, disapproval of their action from their peers, and possible isolation within the judicial fraternity.

When journalists pressed for details of specific issues which they had raised with the CJI, they offered to share copies of the letter which they wrote to the CJI sometime in October-November last year.

The letter sought to highlight certain judicial orders passed by the Supreme Court which, the four judges claimed, had 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 CJI.

Does the press conference suggest the loss of confidence of the four judges in the CJI? Justice Chelameswar refused to share that perception, but when asked whether the CJI must face impeachment proceedings, he said that it was for the nation to decide. Did the four judges break ranks with the other 20 judges by going public on the issue? Justice Lokur denied it, while Justices Chelameswar and Gogoi claimed they had not discussed the issue with the other judges. Justice Gogoi added that they collectively discharged their obligation to the nation, while Justice Chelameswar claimed that they took the extraordinary step because they believed that their silence would have earned them the taint “that they sold their souls from some wise men after 20 years from now”.

The four judges admitted, without explaining in so many words, that the immediate trigger for their decision to go public was that morning’s meeting with the CJI over the allocation of a specific case to a particular bench. The case itself has become controversial, given the huge political stakes involved in it.

The immediate trigger There were two writ petitions, filed by different individuals in the Supreme Court, seeking an independent probe into the death of Judge B.H. Loya, who was presiding over the Central Bureau of Investigation (CBI) court in the Sohrabuddin Sheikh fake encounter case in which Bharatiya Janata Party president Amit Shah was an accused. (See story on page 11.)

The CJI allocated both the petitions to the Justice Arun Mishra-led bench. Given the history of similar sensitive cases being sought to be buried by selective allocation to preferred benches of the CJI’s choice, it was easy to predict the outcome of this case from the cause-list (which on each working day of the court gives details of the case, such as the case number, court number, the bench dealing with the case, petitioners, respondents and the advocates), and this alerted the four judges and led others to be equally concerned. The CJI’s refusal to heed the four judges on the morning of January 12 and make amends in the cause-list and allot the two petitions to an appropriate bench, according to the roster and convention, acted as the trigger for the unprecedented press conference.

That the CJI eventually conceded the point was another matter. The Arun Mishra-Mohan M. Shantanagoudar Bench, which heard the two petitions, adjourned the case subsequently and requested the registry to post it “before the appropriate bench”, a euphemism for recusal.

The CJI-led three-judge bench, which included justices A.M. Khanwilkar and D.Y. Chandrachud, heard the case on January 22 amidst acrimonious exchanges between the counsel for an intervener, Dushyant Dave, and counsel for the Maharashtra government, Harish Salve and Mukul Rohatgi. The bench has adjourned the case briefly to enable compilation of documents and has requested the counsel to let the hearing proceed in an objective manner.

Larger issues But the case relating to the plea for an independent and impartial probe into Judge Loya’s death is only one aspect of the ongoing crisis of confidence in the CJI. The four judges and their supporters among the remaining 20 judges of the Supreme Court apparently want a systemic reform which would make roster allocation a transparent and orderly exercise by the CJI, involving very little of his discretion. They want such a reform to outlast the current CJI, whose term ends on October 2. After all, observers point out that all High Courts follow a transparent and orderly roster system and wonder why the Supreme Court should be an exception to this general practice, which has ensured the smooth functioning of the High Courts all these years. There is a roster in place in the Supreme Court, which is not available in public. This enables the CJI to use his discretion as the master of the roster to allot some specific sensitive cases to “preferred benches” which may be expected to yield “preferred results”.

The administrative power of the CJI, who is only the first among equals, in the Supreme Court, requires some explanation. The Supreme Court, which has a sanctioned strength of 31 judges (with six vacancies at present), sits in benches of two or three judges, and five or more when it hears constitutional cases, specifically referred by benches of smaller strength. Which bench hears a matter depends on the roster of judges, prepared by the CJI, in consultation with other judges, and is available with the registry. Unlike the High Courts, the Supreme Court has not made this roster public yet. It requires periodical revision, with the appointment of new judges and the retirement of existing ones.

The CJI, who is the master of the roster, has the discretion to tweak the roster and decide if a case, because of its sensitivity or for other reasons, could be heard by a larger bench. The case relating to contempt of court by Justice C.S. Karnan, for instance, was heard by a seven-judge bench, comprising the first seven judges of the Supreme Court, thanks to the decision of the then CJI, Justice J.S. Khehar.

The CJI is the master of the roster, but this power cannot be exercised without due regard to conventions and fairness. It was observed that in a few instances, CJI Dipak Misra had allotted fresh cases to benches without due regard to the principles governing the roster. Sometimes, cases part-heard by a particular bench were deleted from its cause-list and shifted to other benches without the judges or the litigants knowing the reasons for the sudden change. When the counsel questioned this practice during the proceedings before the Constitution Bench on November 10 last year, the CJI asserted his power as the master of the roster.

Therefore, the first point that the four judges made in their letter to the CJI was that the Chief Justice was only the first among equals—nothing more or nothing less. They reminded the CJI that the convention of recognising the privilege of the Chief Justice to form the roster—to determine which class of matters can be dealt with which members/benches of a court—and to assign cases to different members/benches of the court was devised for disciplined and efficient transaction of business of the court. They added that this convention of the CJI being the master of the roster should not be construed as recognition of any superior authority, legal or factual, of the Chief Justice over his colleagues.

Secondly, the four judges told the CJI that in the matter of determination of the roster, there were well-settled and time-honoured conventions guiding the Chief Justice, be it the strength of the bench, which is required to deal with the particular case, or the composition thereof. Then they underlined what they called a necessary corollary to the principle—the members of any multi-numbered judicial body, including the Supreme 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,” they alerted the Chief Justice.

The judges then moved to the crux of their allegation. “We are sorry to say that of late, the twin rules mentioned above have not been strictly adhered to. There have been instances where cases having far-reaching consequences for the nation and the institution had been assigned by the Chief Justices of this Court selectively to the benches ‘of their preferences’ without any rational basis for such assignment. This must be guarded at all costs,” they wrote in their letter to the CJI.

“We are not mentioning details early to avoid embarrassing the institution, but note that such departures have already damaged the image of this institution to some extent,” they further cautioned the CJI.

A few cases For the observers of the contemporary Supreme Court, such cases, referred to in passing by the four judges, were, however, apparent.

The public interest litigation (PIL) petition filed by the advocate and activist Prashant Bhushan seeking directions to probe the allegations of payoff in the case of Sahara-Birla diaries was assigned by the then CJI, J.S. Khehar, to a bench presided over by Justice Arun Mishra, who ranks No.10 in the hierarchy. After a brief hearing, Justice Mishra held that the PIL had no merit and dismissed it.

The second PIL, which met with a similar fate, was the plea to probe the suicide note written by the former Arunachal Pradesh Chief Minister, Kalikho Pul, who committed suicide in 2016 after the Supreme Court restored the ousted Chief Minister, Nabam Tuki, to office. Both Pul and Tuki belonged to the Congress, whose Arunachal Pradesh unit had split, reducing Tuki’s government to a minority. Pul became the Chief Minister after the Centre restored the State Assembly, which had been placed under suspended animation after the ouster of Tuki.

The Supreme Court’s Constitution Bench which heard Tuki’s challenge against the dismissal of his government quashed the State Governor’s summoning of the State Assembly for the purpose of a trial of strength without the aid and advice of the Council of Ministers. The Governor’s action led to a series of political developments leading to the ouster of Tuki and the installation of Pul as the Chief Minister. The Supreme Court restored Tuki as the Chief Minister, but he resigned, paving the way for the unification of rival factions in the party and the election of Pema Khandu as the new leader of the legislature party.

In his suicide note, Pul alleged that he lost the Supreme Court case because he could not pay the demand for a huge bribe, allegedly made by some middlemen, claiming to be related to the then CJI, J.S. Khehar, and Justice Dipak Misra, both of whom were members of the five-judge Constitution Bench which heard and decided the case.

Pul’s suicide note remained uninvestigated despite the grave allegations it carried against the Supreme Court judges. Therefore, Pul’s first wife, Danwimsai Pul, wrote a letter to the then CJI, Khehar, seeking an inquiry by the court’s in-house mechanism into the allegations made by her husband.

CJI Khehar, as the master of the roster, decided that Danwimsai Pul’s letter be listed as a writ petition before the bench of justices Adarsh Kumar Goel and U.U. Lalit. Being a sensitive case, it ought to have been listed before a bench comprising the seniormost judges of the court. Therefore, Danwimsai Pul withdrew her petition before the bench could decide the case because she wanted a decision on the court’s administrative side by judges other than the CJI and Justice Dipak Misra. She was dissatisfied with CJI Khehar’s decision to convert her plea on the administrative side into a writ petition to be judicially decided by a bench preferred by the CJI, which her counsel believed was not the appropriate bench to hear it.

R.P. Luthra case In their letter to the CJI, the four judges drew his attention to the hearing of the case , R.P.Luthra vs Union of India , by the Goel-Lalit Bench on October 27 last year and asked how the bench could have expanded the ambit of the matter before it and considered the question of finalisation of Memorandum of Procedure (MoP) for appointment of judges of the superior courts.

In the National Judicial Appointments Commission (NJAC) case, the Constitution Bench had, in December 2015, directed the Centre to revise the existing MoP to incorporate the principles of transparency, eligibility criteria for the judges to widen the zone of consideration, establishment of a secretariat under the CJI, and a complaint mechanism to deal with allegations against the candidates recommended for appointment as judges. In his petition before the Delhi High Court, Luthra contended that appointments made after the Constitution Bench’s December 2015 judgment had to be declared null and void as they did not comply with these principles. The High Court dismissed his petition. The petitioner appealed against the Delhi High Court’s rejection of his plea. According to Luthra, the revised MoP, as directed by the Constitution Bench in December 2015 in the NJAC case, had not yet been finalised. Therefore, he argued that the recommendations of the collegium, made in the absence of the revised MoP, had to be declared illegal and unconstitutional.

The Goel-Lalit Bench upheld the Delhi High Court’s rejection of the petitioner’s contention, but asked the Centre to explain why there had been an inordinate delay in finalising the MoP.

The four judges were correct that the Goel-Lalit Bench could not have dealt with a matter that was already decided by a five-judge Constitution Bench. A bench of similar strength alone could have judicially considered the question of delay in finalising the MoP. The four judges told the CJI that the MoP was finalised by the collegium and sent by CJI Khehar to the Centre in March 2017. The Centre, however, did not respond to the communication from the collegium. Therefore, they suggested that its silence must be construed as acceptance.

The observations of the Goel-Lalit Bench, however, suggested that the MoP was not final, and this created confusion. Justices Goel and Lalit are not members of the collegium, which comprises the first four seniormost judges of the Supreme Court, apart from the CJI. The four judges, therefore, asked the CJI to take remedial measures after a full discussion with other members of the collegium and at a later stage, if required, with other judges of the court.

The CJI did take remedial steps following the receipt of the four judges’ letter by recalling the order passed by the Goel-Lalit Bench in this case, on November 8, and disposing it of. But as the judges mentioned at the press conference, the CJI’s remedial action in this regard raised further questions about the “integrity” of the institution and “many more things happened after that”.

What the judges alluded to here was the decision of the CJI to recall the order of the Goel-Lalit Bench and dispose it of as part of the three-judge bench. Justices A.K. Sikri and Amitava Roy were the other judges of this bench, presided over by the CJI. The CJI orally observed, while disposing it of, that the MoP was an administrative decision and he would take care of it as the head of the administration and that there was no need to deal with it judicially. This was inconsistent with the letter of the four judges insisting that only a Constitution Bench of five judges could deal with the matter on the judicial side, and that on the administrative side it should be discussed in the Chief Justices conference and by the Full Court.

The judges’ reference to the MoP issue exposes the hollowness of the Centre’s claim that it has nothing to do with the ongoing dissensions within the Supreme Court. The Centre has been delaying the finalisation of the MoP by insisting that the collegium’s recommendations could be vetted by it on grounds of national security and returned for reconsideration. This has apparently led to a stalemate over the final draft of the MoP.

What happened subsequently after November 8 is now history and was referred to in passing by the four judges during their press conference. On November 10, the CJI hurriedly constituted a five-judge bench to overrule an order passed by a two-judge bench the previous day (comprising Justices Chelameswar and S. Abdul Nazeer) to refer the petition filed by Kamini Jaiswal, seeking a probe into allegations of bribery in the medical college admission case, to a Constitution Bench comprising the first five judges of the court. The order passed by the Constitution Bench on November 10 reaffirmed the position of the CJI as the master of the roster and declared that any order, passed by any other bench, assigning cases would be null and void.

The CJI’s decision to hear the case himself, although his recusal was sought on the grounds that the CBI’s first information report (FIR) filed in the case pertained to a case heard by him earlier, became controversial as it smacked of serious conflict of interest. The petitioners urged that the CJI should also recuse himself as the master of the roster for assigning this case to a particular bench, which was rejected.

The three-judge bench to which the CJI assigned the two petitions—one filed by Kamini Jaiswal and another by the Campaign for Judicial Reforms (CJAR), both seeking an independent probe into the allegations—subsequently dismissed them, after imposing huge costs of Rs.25 lakh on the CJAR, calling it frivolous and contemptuous litigation. The bench comprised of justices R.K. Agrawal, Arun Mishra and A.M. Khanwilkar.

The CJAR has made several other allegations against the CJI following these developments and urged a detailed probe into them on the administrative side of the Supreme Court by judges other than the CJI. (See story on page 9.)

Meanwhile, the Communist Party of India (Marxist) has indicated that it would consider the question of initiating a motion in Parliament for the removal from office of the CJI, following the issues raised by the four judges and their non-resolution by the CJI even two weeks after their press conference. Whether such a motion is able to secure the requisite support of other opposition parties, to be admitted by either the Lok Sabha or the Rajya Sabha, is not clear at present. If it happens, the continuance of the CJI in office will raise serious issues of propriety, whatever be the final result.