Rebellion in India’s Supreme Court

By Vidyadharan MP

Last Friday, four senior most judges of India’s Supreme Court stunned the nation. And may be the judicial world. Ignoring judicial protocol, which barred the judges other than the Chief Justice of India from communicating with the media directly on institutional issues, these judges called the media to the official accommodation of the senior-most, Justice Jesti Chelameswar and spoke to them, warning against the style of functioning of the Chief Justice of India Dipak Misra.

All these judges, being the senior most after the CJI, are part of the collegium which decides on the appointment and transfer of judges of the highest court as well as all the higher courts in the country. Besides Chelameswar, they included Justice Kurien Joseph, Justice Ranjan Gogoi and Justice MB Lokur.

These judges said the democracy itself would be in danger if the way the CJI is functioned is not changed and corrective measures taken. They said they were forced to speak in public, breaking the settled practice of judicial restraint, because the CJI did not take steps to redress their grievances, which were first raised two months ago through a letter.

To the credit of the four judges, they did not say much at the press conference except this is an “extraordinary” event in the judicial history and that circumstances compelled them to reach out in order to discharge their “debt to nation” as the credibility of the highest judiciary was at stake. They repeatedly asserted that they did not want to “politicise the issue” and were not seeking any action against the CJI. They only made public a seven-page letter jointly written to the CJI recently.

They did say that all is not well with the administration of the court for the last two months and they did make sincere efforts in sharing their concerns with the CJI and did everything within their powers to persuade him to take necessary remedial measures. But their efforts were in vain and therefore, reluctantly, they were sharing their pain and disappointment with the people. They also said that they are convinced that unless the SC’s independence and integrity is preserved, democracy would not survive as an independent judiciary is the hallmark of a successful democracy.

Making a strong statement, Justice Chelameswar said “We do not want people to say 20 years later that all four senior most judges sold their souls.”

The basic issue is the way CJI Misra, who is conceived to be pro-the-present-government,  is behaving as the master of roster, picking up select, junior judges in the benches which decide important cases which has bearing on political future and ruling political leaders.

Even before Justice Misra was appointed as the CJI, there were question marks on his allegedly corrupt actions.  But the government went ahead and appointed him as the CJI when Justice J.S. Khehar retired in August last year. Misra was the senior most judge and his name was suggested by the retiring CJI, as per the norm.

Justice Misra was the judge who made singing of the national anthem compulsory in all the cinema houses to help “develop the spirit of nationalism”. This decision was widely criticised as people felt it unnecessary and difficult for the disabled and the old. Recently, a larger bench, also consisting of Justice Misra, again made it optional.

Justice Misra’s observations during the case involving a Kerala Hindu girl, who converted Islam and married a Muslim, had also raised questions on his impartiality. This girl, Dr. Akhila, a medical student, was put on house detention on the orders of the Kerala High Court, after declaring the marriage null and void. After months of detention at the house of her parents, her husband approached the Supreme Court. Justice Misra’s bench first ordered that the case should be probed by the National Investigation Agency (NIA) as part of ‘Love Jehad’. The RSS and its friends have been arguing that the Muslims are carrying a campaign to marry Hindu girls, after befriending and converting them. It gave the name ‘Love Jehad’.

However, in this case, the question was whether a court can declare a marriage, done by a couple of majors, just because protests from parents. But his bench skirted this issue and tried to put pressure on the girl, ordering an NIA investigation. But the girl remained firm, even offering Islamic prayers at her parents detention house.

Finally, following widespread criticism and outcry, the court allowed the couple to continue the marriage, but again put restrictions on her when it asked the medical college where she was studying to make her parents as the guardian, and not her husband.

The senior judges, who have raised their voice publicly now, are also worried about the way benches were created to deal with cases like Ayodhya temple case, the death of a CBI judge BH Loya who was deciding on the Sheikh Sohrabuddin encounter case against Amit Shah, now the BJP president, and some others.

In the Ayodhya case, BJP MP Subramanian Swamy, who has no legal rights, approached the court with a PIL to hear the long-pending case on a day-to-day basis and finish it off as soon as possible. This case was between the Waqf board and the saints, while Swamy was  not a party to the case. How can a third party request the court to hear the case on a daily basis? But Justice Misra agreed to set up a bench to hear this case daily, despite strong opposition from the counsels of the Waqf board, which wanted the case to be heard in 2019, after the next general elections.

In this case, the intentions seemed to be clear – finish the case of right to the property and build constructing the temple, before the general elections.

Also, the CJI picked up his select judges who entertain his confidence, while ignoring senior judges.

CBI judge Loya had died in 2014, reportedly following a massive heart attack while he had gone to Maharashtra to attend some family function. Later on, many questions were raised on how he was treated as Loya was alive when he was taken to the government hospital. Following allegations that it was a unnatural death, a PIL was filed in the Supreme Court. Here too, these judges were not happy with the bench which the CJI wanted the PIL to be heard.

The other issue is the Memorandum of Understanding through which the judges are appointed. The court had struck down 4-1, on grounds of compromising the “primacy of Chief Justice’s opinion”,  the first major legislative initiative of the Modi government, soon after it came to power, to set up a National Judicial Appointments Commission to select judges for the SC as well as the high courts. The only dissenting judge then was Chelameswar. After this judgement, there was a stalemate between the government and the Supreme Court over the issue. Later, this issue was listed before a two-judge bench. But the issue is now also taken up by a bench led by the CJI.

These are only some of the issues these judges have serious differences of opinion with the CJI. There are many other issues as well which these judges are not talking of openly now because of the restraint they want to observe.

Once, an eminent retired judge of Supreme Court, Justice V D Tulzapurkar, had observed that “sycophantic Chief Justices” were a threat to the independence of the judiciary because they could easily pack the court or withdraw cases from one bench to another.

Now, with four senior judges questioning the authority of the CJI even in administering the court, things have come full circle. It is indeed the worst crisis of our judicial history and the entire legal fraternity is in shock with such divisions within the collegium. Decisions on appointment and transfer of judges may now come to a standstill.

Earlier it was government versus supreme court. But the current crisis is of different magnitude as the four judges have raised some very pertinent issues about the administrative functions of the CJI. So it is now judges versus CJI. It is a fight The integrity of the apex court is now at its lowest ebb and it will take years to regain people’s confidence.

Also, it was not the first time that there were allegations against a CJI. There were few CJIs, besides judges, whose records were said to be not so clean. But this was the first time that senior judges themselves have raised the issue. It is really worrying and damaging. Because Supreme Court was one of the few institutions on which people still have hopes.

Taking a cautious stand, the government has for the time being refused to interfere in the internal crisis of the top court. Former CJIs are also of the view that the CJI should try to solve the issues raised by the senior judges.

CJI Misra, who will be retiring in October this year, has a great responsibility now. He has to repair the unprecedented damage done to the country’s one of the important institutions. Can he once gain regain the confidence of these senior judges – one of them, Ranjan Gogoi, is on normal course supposed to succeed him. Or will it lead to flying of more dirt in the open? The top court has to function fairly and judiciously if democracy is to be sustained. For that, the role of each CJI and judges is important.

As the case may be from many other countries, power hungry politicians and the government would try to increase their influence over this important organ. And here too, the government may at a later stage try to have greater say in judicial appointments and transfers. It may come up with another version of NJAC.

Though government has nothing directly to do with this unprecedented voice of conscience by the judges, it may indirectly impact the Modi government, which has just more than a year to face people. This would also affect some of the plans of the government.

 

(The author is a senior journalist based in New Delhi and Additional Director (Communications) of Observer Research Foundation, Delhi)     

2 Comments for “Rebellion in India’s Supreme Court”

  1. judicial service is full of politician, indian prime minister interfere in other countries not accepted to the constitution, he was killed by indian government ,his meeting he was worn by the public why he has a meeting, the case report is very woring they did because of prime minister,

  2. indian prime minister mr INDRA GANTHI was world fames politician, but see is far away from the judicial. death was down fall of india law and order of the country,unfortunely ms Sonia came to india by married ganthi son ,india became a worst country in the east, he requested mr Wajpayee prime minister to wipe out LTTE, he said it not possible international law ,india should not inter fear in other democratic country, mrMammoha sigfh stooges of ms Sonia agreed to killed LTTE and tamils were LTTE. the indian army and killed and Rape the tamils front of parents ,he was father of two daughters ,france USA,UK countries were not happy india towards tamil in srilankan,UN peace committee wanted came srilankan want bring peace,but mr singh killed tamils as LTTE, srilankan suffering country many has sick children due to the Carmichael use by mr SINGH prime minister,

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