An “unprecedented” has happened. On January 12 around 11 am, a tweet spread like wildfire in the corridors of the Supreme Court. It related to a possible Press conference to be held by four senior-most judges “after the Chief Justice of India” at 4, Tughlaq Road, the official residence of Justice J Chelameswar. This indicated something new was to happen. Never before in the apex court’s history, its judges had held a Press conference.
The court of Justice Chelameswar had risen for the day. Similar was the position regarding Justice Madan B Lokur’s court. The courts of Justices Ranjan Gogoi and Kurien Joseph were still functioning. It also transpired that these four judges were to do something isolating CJI Dipak Misra. The situation indicated serious differences of opinion amongst the senior-most judges.
The news conference was arranged at the official residence of Justice Chelameswar. As the Press conference progressed, it became apparent that the PIL relating to an independent probe into Judge BH Loya’s death probe was one of the points of contention between the CJI and the four judges.
The four judges had advised against the listing of the PIL in Loya’s matter before Court No.10 comprising of Justices Arun Mishra and MM Shantanagoudar. The four judges had reportedly requested the CJI to withdraw the particular case from that court.
When the request was not fulfilled, the judges decided to make their grievances public. They questioned the “undesirable” decision of the CJI to assign politically sensitive matters of important cases to a particular court in violation of the prevailing rule of roster system. They released a copy of the letter written about two months earlier jointly by them to the CJI. The four judges were unanimous in their view that the CJI had refused to act on their letter though the contents thereof deserved immediate attention.
The first question to be considered is the desirability of holding a Press conference appealing to the “people’s court” and that too by the four senior-most judges after the CJI. The letter inter alia says, “There have been instances where cases having far-reaching consequences for the nation and the institution had been assigned selectively to Benches without any rational basis for such assignment. This must be guarded against at all costs.”
The letter did not disclose or state specific cases and that “only to avoid embarrassing the institution, but such departures have already damaged the image of the institution to some extent.” The judges were aware that they were doing something out of the ordinary.
Before releasing the letter, Justice Chelameswar, on whose sunny lawns the media had thronged, went on to say, “This is an extraordinary event in judicial history. It is not a pleasure, but we are compelled as senior judges to inform the nation so that remedial measures can be taken.” He went on, “Democracy will not survive otherwise, the hallmark of which is the independence of judiciary.” The efforts to set things right through a meeting with the Chief Justice being not fruitful, Justice Chelameswar added, “All efforts even in the morning today failed, leaving us with no choice but to communicate to the nation.”
Reportedly, he added that the judges’ Collegium was functioning in such a way that it raised a lot of questions; and many more undesirable things were happening. Justice Lokur said they had to “break ranks” in their effort to bring into the open undesirable things happening in the highest level of the judiciary.
To a question whether the four judges had the support of other judges in the court, Justice Lokur said, “We are speaking for the four of us, not for anyone else.” Justice Joseph did not elaborate things to express his agreement with what his brother judges were disclosing. To a question of possible remedies, the judges said, “Let the nation decide.”
There is an almost-unanimous view is against the four judges rushing to the media. Justice N Santosh Hedge, a former judge, said, “As a retired judge of the Supreme Court, I feel devastated for some reason or the other. Their cause is justified, but relief they are seeking is wrong … going to the media? The judiciary was always considered as a family. Family disputes are never taken to the streets.”
The legal fraternity has more or less unanimously disapproved the rushing to the media by the four senior-most judges. Different associations and the Bar Council of India are trying to play their conciliatory roles. The four judges are likely to meet the CJI soon. A Full Bench meeting may also takes place.
But the damage has already been done. It will take quite some time to restore the faith of the common man in the highest judicial forum. Attorney General KK Venugopal has categorically said that the four judges could have avoided holding the Press conference; and now, they would have to act in “statesmanship” to ensure complete harmony.
The Press conference “could” not only be avoided, but “should” have been avoided. Maybe, the judges were finding no way out to ventilate their grievances. It is very difficult situation if a judge is convinced himself that “by holding a Press conference, we are discharging our debts to the nation.” Behind the scene in this turmoil is the frustration of the four judges in the functioning of the administrative side of the apex court.
There has also been a controversy regarding the Memorandum of Procedure (MoP) with regard to appointment of judges. The matter relating to the MoP emanated from a decision of the Constitution Bench in 2016. Four senior-most judges after the CJI said, “It is difficult to understand as to how any other Bench could have dealt with the matter ...”
The unusual situation has thrown up an unusual opportunity of remedying what has been irking the judges and the Bar with murmurs in the corridor. In so far as the CJI is concerned, he can cause changes in the system of functioning obviously for the better and more transparent. Collective dissent of the four senior-most judges may appear to be an aberration, but it indicates that there are maladies inherent in the system itself. It is a golden opportunity on the part of the CJI to flush the system and throw out the debris that is polluted. Rightly, the Attorney General says it requires a statesmanship-like approach.
Taken aback with the developments, the ordinary citizen should not stand bewildered. The youth power should also introspect and come up with suggestions that would ensure improvement of the system making it more meaningful, transparent and purposive.
Looked at from any angle, the episode is a matter of concern for all in our society. Boiling over is also a safety valve to rectify the situation and save it from peril. In that context, reforms of the method of working in the courts could be a matter to be streamlined in the coming weeks or months. The CJI has the onerous responsibility of carrying his brother judges with him and removing the obstacles in the path of a smooth functioning of a vital organ of the state.
Let it not be said that when lawyers refer to their colleagues as “learned friends”, they probably mean it whereas judges referring to their colleague judges as “learned brothers” they probably do not mean it. There were apprehensions of a “tsunami” in the highest level of the judiciary. But the weekend has turned events to a “storm in teacup”. The ramifications of the “storm” certainly concern us all!
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. e-mail: jayantdas@hotmail.com)