“IN his capacity as a judge, the Chief Justice is primus inter pares: the first among equals. In the discharge of his other functions, the Chief Justice of India [CJI] occupies a position which is sui generis. Article 124(1) postulates that the Supreme Court of India shall consist of a Chief Justice of India and other judges. Article 146 reaffirms the position of the Chief Justice of India as the head of the institution. From an institutional perspective, the Chief Justice is placed at the helm of the Supreme Court. In the allocation of cases and the constitution of benches, the Chief Justice has an exclusive prerogative. As a repository of constitutional trust, the Chief Justice is an institution in himself. The authority which is conferred upon the Chief Justice, it must be remembered, is vested in a high constitutional functionary. The authority is entrusted to the Chief Justice because such an entrustment of functions is necessary for the efficient transaction of the administrative and judicial work of the court. The ultimate purpose behind the entrustment of authority to the Chief Justice is to ensure that the Supreme Court is able to fulfil and discharge the constitutional obligations which govern and provide the rationale for its existence. The entrustment of functions to the Chief Justice as the head of the institution is with the purpose of securing the position of the Supreme Court as an independent safeguard for the preservation of personal liberty. There cannot be a presumption of mistrust. The oath of office demands nothing less.”
—The Supreme Court’s three-judge bench, presided by the Chief Justice of India, Dipak Misra, and comprising Justices A.M. Khanwilkar and D.Y. Chandrachud, in Asok Pande vs Supreme Court of India Through Its Registrar and Others, April 11, 2018.
ON May 24, 1949, Dr B.R. Ambedkar, Chairman of the Drafting Committee of the Indian Constitution, while replying to the debate in the Constituent Assembly, stated:
“With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I, therefore, think that is also a dangerous proposition.”
The Supreme Court’s April 11 judgment in Asok Pande can be seen as being clearly at odds with what Dr Ambedkar had stated in the context of the relevance of the CJI’s concurrence for the appointment of judges. Behind the Supreme Court’s judgment in Asok Pande lies a story which only vindicates what Ambedkar stated in 1949.
Asok Pande, who claims to be a public-spirited lawyer, filed a public interest litigation (PIL) petition in the Supreme Court on January 15 and it was duly registered on February 20. His prayer was that the Supreme Court should be directed to evolve a procedure for constituting the benches and for the allotment of jurisdiction to different benches, with a specific rule that the three-judge bench in the Chief Justice court should consist of the Chief Justice and the two most senior judges and the Constitution bench should consist of the five most senior judges or three most senior judges and two most junior judges. He wanted a similar pattern of rules to be adopted by the Allahabad High Court. On April 9, his petition was listed before the bench presided by the CJI. As Pande did not choose to engage a lawyer, he was heard as “Petitioner-in-Person”, for less than five minutes, and the bench reserved its judgment, without issuing notices to the respondents, which included both the Supreme Court and the Allahabad High Court.
The issues raised by Pande, on the face of it, had no merits, and could have been dismissed in limine by the bench, without having to deliver a 16-page judgment, within two days. In its judgment, the bench did find Pande’s prayers totally devoid of any merit and admonished him for filing such a frivolous petition. But the bench used the opportunity to dilate on the role of the CJI as the master of the roster and to emphasise that once appointed, every judge of the court was entitled to and, in fact, was duty-bound to hear such cases as are assigned by the CJI.
The bench held: “Judges drawn from the High Courts are appointed to this court after long years of service. Members of the Bar who are elevated to this court similarly are possessed of wide and diverse experience gathered during the course of the years of practice at the bar. To suggest that any judge would be more capable of deciding particular cases or that certain categories of cases should be assigned only to the senior-most among the judges of the Supreme Court has no foundation in principle or precedent. To hold otherwise would be to cast a reflection on the competence and ability of other judges to deal with all cases assigned by the Chief Justice notwithstanding the fact that they have fulfilled the qualifications mandated by the Constitution for appointment to the office.”
In retrospect, one wonders whether these words were meant for Pande or for the four most senior judges of the Supreme Court who held an unprecedented press conference in New Delhi on January 12. In that press conference, the four judges were critical of the CJI’s role as master of the roster in assigning sensitive cases to preferred benches with the expectation of a particular result.
The four judges, Justices J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph, did not insist that as most senior judges after the CJI, they should hear the sensitive cases, and not other judges in the Supreme Court. On the contrary, they questioned the absence of any rational system for allocating cases across the benches by the CJI as master of the roster, thus shaking the confidence of the litigants in the administration of the court.
It was only after they brought this to light did the CJI publish the roster on the Supreme Court’s website, although many advocates are of the opinion that the allocation of subject categories, which number 41 at present, among the 11 presiding judges leaves a lot to be desired. It is thus asked why the CJI alone should hear the most important matters, such as letter petitions and PILs, habeas corpus , appointment of constitutional functionaries, statutory appointments, appointment of other law officers and commissions of enquiry. The hearing of Pande’s petition, and the speed with which the judgment was delivered in his case, raised eyebrows, especially because a similar petition was filed by the senior advocate and former Law Minister Shanti Bhushan on April 2, raising far more serious issues with regard to the allocation of cases by the CJI as master of the roster.
The petition was eventually registered on April 12 and heard the next day by a bench comprising Justices A.K. Sikri and Ashok Bhushan. The judgment in Pande’s case cast a shadow on the hearing of Shanti Bhushan’s petition, although the counsel for Shanti Bhushan, Dushyant Dave and Kapil Sibal, convinced the bench that it merited a detailed hearing. The bench has sought the assistance of Attorney General K.K. Venugopal and Additional Solicitor General Tushar Mehta in the next hearing of the case.
In his petition, Shanti Bhushan sought directions to regulate the system of allocation of cases by the CJI as master of the roster, giving as many as 14 instances of arbitrary allocation of cases by him. He contended that as allotment of sensitive cases has a bearing on democracy, the CJI’s responsibility as master of the roster must be performed by a collegium of four senior judges of the Supreme Court, besides the CJI. Justices Sikri and Ashok Bhushan expressed their disagreement that a collegium of senior judges could substitute for the CJI as master of the roster but agreed to hear the petitioner if any other method could be proposed to regulate the system so that the scope for bias could be minimised.
The point to be noted is that while Pande’s petition was heard and decided by a bench presided by the CJI, although the judgment was authored by Justice Chandrachud, Shanti Bhushan’s petition was allowed to be heard by another bench because Prashant Bhushan, who filed the petition on behalf of Shanti Bhushan, made a specific plea that the CJI should neither hear it judicially nor take an administrative decision as to which bench should hear it.
As the CJI had been named as a respondent in Shanti Bhushan’s petition, it was important that he should keep away from hearing the petition. In Pande’s case, however, the CJI had no compunctions to hear the matter, although his responsibility as master of the roster was an issue. The principle, “no one should be a judge in his own cause” was apparently not considered relevant by the CJI.
Prashant Bhushan’s effort to mention the matter before Justice Chelameswar and seek his directions in this regard, however, did not fructify, as the latter declined to do so, saying that he would not like his orders to be reversed within a day. His reference was to the November 10, 2017, decision of the Constitution bench, set up by the CJI at short notice, to annul the decision of Justice Chelameswar earlier to constitute a five-judge bench comprising the first five senior judges of the Supreme Court to hear the matter involving a medical college admission scam in which a High Court judge was sought to be bribed.
Justice Chelameswar had then agreed to hear the petition, as it was pointed out that the CJI was incapacitated to take an administrative decision to hear the matter, because he had judicially heard the case earlier and passed orders, which were the subject matter of the Central Bureau of Investigation’s (CBI) inquiry in that case. The hearing of Shanti Bhushan’s petition comes at a time when the Centre’s tug of war with the Supreme Court’s collegium over the appointment of judges continues. The Centre has been sitting on the collegium’s recommendation to appoint the Chief Justice of Uttarakhand High Court, Justice K.M Joseph, and the senior advocate Indu Malhotra as judges of the Supreme Court, for nearly three months. Justice Joseph had earned the displeasure of the Centre by quashing the imposition of President’s Rule in Uttarakhand when the Congress was in power.
While the collegium found Justice Joseph more outstanding than all other senior judges in the consideration zone for appointment as judges of the Supreme Court, the Centre appears to hold the view that appointing him would mean superseding judges senior to him and therefore not advisable. If the Centre returns the recommendation for reconsideration by the collegium, and if the Collegium reiterates it, it is binding on the Centre, in terms of the Supreme Court’s judgment in the Second Judges case (1993). To avoid this eventuality, the Centre is sitting on the recommendation; although it has nothing against appointing Indu Malhotra as a judge, it is not permissible to split the recommendation and appoint one of them.
Meanwhile, the number of vacancies in the Supreme Court is rising. Justice Amitava Roy retired on March 1 while Justice R.K. Agrawal is slated to retire on May 4. Justice Chelameswar, who is to retire on June 22, will have the last working day on May 18, when the court rises for vacation. Justice Adarsh Kumar Goel retires on July 6, soon after the reopening of the court. These vacancies will reduce the effective strength of the court to 21 from its sanctioned strength of 31 judges. CJI Dipak Misra, Justice Kurian Joseph and Justice Lokur will retire in October, November and December respectively.
Justice Chelameswar’s anguish These concerns made Justice Chelameswar and Justice Kurian Joseph speak out and urge immediate action on the part of the CJI to save the institution from further decline. Justice Chelameswar expressed his anguish in his letter to the CJI, with copies to all the sitting judges of the Supreme Court, on how attempts were made to treat the Chief Justices of high courts like departmental heads in the Secretariat. He shared his concern that the Chief Justice of the Karnataka High Court, Dinesh Maheswari, chose to act on a confidential report sent by the Centre, to reassess a recommendation of the collegium to elevate a district judge to the high court without informing the CJI.
In 2016, Krishna Bhat, a district and sessions judge, was recommended by the collegium for appointment as a judge of the Karnataka High Court. An inquiry by the then Chief Justice of the high court had cleared Bhat of sexual harassment charges by a judicial magistrate, who was herself facing a vigilance case. The Centre withheld Bhat’s elevation and elevated five others who were junior to Bhat.
Instead of sending back the collegium’s recommendation, the Centre sat tight on the file, Justice Chelameswar said in his letter, even though it “still retained its validity and legitimacy”.
“For some time, our unhappy experience has been that the government’s accepting our recommendations is an exception and sitting on them is the norm,” he wrote, adding that “inconvenient” but able judges or judges-to-be were being bypassed through this route.
“Asking the high court to re-evaluate our recommendation in this matter has to be deemed improper and contumacious,” Justice Chelameswar said while describing the conduct of the Centre in this regard. “The Chief Justice, establishing himself to be more loyal than the king, acts on it [the recommendation], convenes a meeting of the administrative committee, and decides to reinvestigate the issue, thus burying the previous Chief Justice’s findings on the same issue, given at our asking,” Justice Chelameswar added.
“I am of the opinion that this matter is now ripe for the consideration of the full court on the judicial side, if this institution really is to be any more relevant in the scheme of the Constitution,” Justice Chelameswar concluded.
Justice Chelameswar followed his letter with a public expression of his anguish during a conversation with the well-known journalist, Karan Thapar, in New Delhi. During the interview, Justice Chelameswar alleged that even Karnataka’s appeal against former Tamil Nadu Chief Minister Jayalalithaa was assigned to a preferred bench by the then Chief Justice, H.L. Dattu.
He also disclosed that CJI Dipak Misra did not share a confidential communication from the Centre, carrying its feedback on the draft Memorandum of Procedure (MoP) submitted by the collegium. The stalemate over the MoP continues because of the Centre’s insistence that it should have the right to reject a candidate recommended by the collegium on the grounds of national security. Justice Kurian Joseph took strong exception to the Centre sitting on the collegium’s recommendation to elevate Chief Justice K.M. Joseph and Indu Malhotra to the Supreme Court, despite the passage of three months after its submission. “Failure to discharge their duty by sitting on the recommendations of the collegium doing nothing, in administrative law, is abuse of power. More than anything else, it sends a wrong message which is loud and clear to all judges down the line not to cause any displeasure to the executive lest they should suffer. Is this not a threat to the independence of the judiciary?” he asked.
Seeing an analogy to the swift action by the Supreme Court in the case of Justice C.S. Karnan, who was sentenced to six months’ imprisonment for contempt of court, Justice Kurian Joseph said the present action of contempt by the Centre of the collegium’s recommendation was a threat to the very life and existence of the institution. He urged the CJI to constitute a bench of the first seven or more judges to take up the matter on the judicial side.
“If there is no normal delivery on completion of the gestation period, what is urgently done is a Caesarean section. Unless such a surgical intervention is made at an appropriate time, the child in the womb dies,” Justice Kurian Joseph wrote, warning that, otherwise, “history will not pardon us”.
CJI’s non-impeachment As if the challenges from his senior colleagues were not enough, CJI Dipak Misra also had to suffer the ignominy of being the first CJI to face the initiation of impeachment proceedings in Parliament. The Congress almost prepared a draft impeachment motion, and was about to submit it to the Rajya Sabha Chairman and Vice President, M. Venkaiah Naidu, with the requisite signatures of 50 members of the House, when the party developed cold feet and decided against it.
While it is not mandatory for the Rajya Sabha Chairman to act on such a motion by constituting an inquiry committee to probe the charges against the CJI, the Congress, it appears, was concerned about the fallout of the exercise on the integrity of the Supreme Court. The party appears to have used the motion and its dropping at present to send a message to the CJI that he better take corrective measures to restore the confidence of his colleagues over his functioning.
Although the numbers are not with the opposition to carry the motion to achieve removal of the CJI from office, the process itself could sully the image of the CJI during the remainder of his term, and this, many observers feel, will force the CJI to build bridges with his senior colleagues and address their concerns. The Congress leader and senior advocate Kapil Sibal has said that the party may revive the efforts to impeach the CJI if the circumstances warrant it and if the CJI does not address the legitimate concerns over his functioning. With the threat of impeachment hanging like a sword of Damocles, there appears to be no end to the crisis facing the Supreme Court and the office of the CJI.
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