Written by Kaunain Sheriff M, Ananthakrishnan G, Liz Mathew, Manoj CG and Ravish Tiwari
On January 12, as four of the five senior-most judges of the Supreme Court assembled on the lawns of Justice Jasti Chelameswar residence, there was visible discomfiture when journalists asked them about the matter over which they had met the Chief Justice of India (CJI) that morning. “Is this about judge Loya,” asked a reporter? Chelameswar gestured to indicate it was. A week later, on Saturday, as CJI Dipak Misra assigned the Loya case (two petitions seeking an independent probe into the death of CBI Special Judge B H Loya) to a three-judge bench led by himself, the mistrust between the CJI and the other four senior-most judges of the apex court remains unresolved, the fault lines still gaping.
At the heart of the dispute is the CJI’s role as master of roster, with a prerogative to constitute benches of the apex court and allocate cases. “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 preference’ without any rationale basis for such assignment. This must be guarded against at all costs,” said the letter to the CJI released to the media on January 12 by the four senior-most judges — Chelameswar, Ranjan Gogoi, M B Lokur and Kurian Joseph — who, along with the CJI, make up the collegium, the highest decision making body of the apex court.
Sources in the Supreme Court suggested that Justice Misra had no inkling of the four judges’ plans to address the media until minutes before noon, the scheduled time for their January 12 press conference. Several high-placed sources in the government confided that even the government did not have any prior information — or even a hint — of this move by the judges. Since that afternoon, however, the legal fraternity, the ruling establishment and the Opposition have been speculating, in hushed voices, about the potential reasons behind the revolt by the four judges.
The four judges had suggested they were left with no option but to take this route as a letter they had sent to the CJI two months ago, regarding their reservations over the roster, had got no response. Members of the legal fraternity acknowledge that the simmering tension among members of the collegium has been an open secret in the corridors of the Supreme Court. They talk of past instances of this tension — when, in August 2016, Justice Chelameswar refused to attend meetings of the collegium during Justice T S Thakur’s tenure. While he returned to participate in the deliberations during J S Khehar’s tenure as CJI, there were murmurs when he decided not to participate in the Constitution bench hearings scheduled to be held during last year’s summer vacation.
More recently, two members of the collegium — Justices Madan B Lokur and Kurian Joseph — had written to the CJI, expressing anguish at the decision to make public the details for rejection of those who had been considered for appointment as judges to various high courts. They were not against transparency, they said, but were concerned whether making the details public would not amount to trampling on the rights of those whose names had been rejected. The two judges were also said to have had the support of Justice Ranjan Gogoi, who going by seniority, is next in line for the CJI office.
While on the face of it, the latest revolt raises key constitutional questions that go beyond the individuals involved in this, a section of the legal fraternity suggested that the challenge is to tease out the personal from the institutional. “There has always been some degree of peer rivalry within the higher judiciary based on who gets elevated to the SC first and who gets delayed. That is why, even in the past, there has always been reluctance in accepting the leadership of CJIs,” confides a senior member of the legal fraternity, later adding that a mere delay in promotion by governments or supervisory judges has the potential of robbing judges of higher offices.
Some cite the case of Justice Chelameswar, who will retire without being CJI.
Chelameswar was appointed as a High Court judge in June 1997 whereas CJI Misra became a HC judge on January 1996 and Justice J S Khehar in February 1999. Justice Chelameswar became Gauhati Chief Justice in May 2007, before Justices Khehar and Misra were appointed as High Court justices in November 2009 and December 2009 respectively. However, his seniority was ignored by the then collegium, which elevated Justice Khehar to the SC in September 2011. Chelameswar’s appointment, along with Misra’s, came only a month later. There, too, Misra’s seniority ensured he became CJI.
What startled many was the presence of three other members of the collegium — Justices Ranjan Gogoi, Kurian Joseph and MB Lokur — at the press conference.
For a senior political leader of the ruling party, the “personal grudge” of one judge could have been a glue for the others as well. But that would also be simplifying matters, said a judicial source. Even the routine morning gathering of judges, which used to be a forum for informal discussions, has, over the last few months, become lacklustre, said the source. A former judge recollects how, earlier, these meetings were a forum to discuss everything — from the designation of senior advocates to criticism and even Bar gossip.
Even the Wednesday lunch, where judges usually took turns to bring home-cooked food for others judges, has become a tepid affair. In the absence of such opportunities or avenues for informal discussions or bonding among the judges, the distrust has only deepened, said a SC source.
This leaves the ‘full Court’ as the only forum to discuss issues. But its meetings are now more formal, said a judge, than relaxed or free-wheeling.
The CJI’s powers
“We are not mentioning details only to avoid embarrassing the institution but note that such departures have already damaged the image of this institution to some extent,” said the letter of the four judges made public on January 12.
Since then, members of the legal fraternity have been poring through past cases of bench allotments to identify potential “departures.” From last year’s medical bribery scam case to the issue of women’s entry into Kerala’s Sabarimala temple, eyebrows have been over several cases of bench allocation in the recent past (see box).
Though many, including the four judges, concede that it is a “well-settled principle that the Chief Justice is the master of roster,” opinion is divided on the discretionary powers enjoyed by the CJI while allocating cases to different benches.
The power of the President/Governor to invite the leader to form the government in the case of a fractured mandate, the power of the Prime Minister to appoint his council of ministers, the power of the Speaker to admit a motion in the legislature are some discretionary powers in the executive and legislative arms. Likewise, the CJI as the head of the Judiciary commands executive powers.
Former Law Minister Veerappa Moily sees the “well settled principle that Chief Justice is the master of the roster” differently. “He is only the captain of the team. It is only judicial wisdom which ultimately brings everyone together. There are certain conventions and precedents governing the functioning of the collegium, judiciary and allocation of duties. Even the CJI cannot transgress that,” he says.
Former CJI K G Balakrishnan feels that it is the CJI’s “moral and ethical duty” to ensure that his allocation of cases is not questioned even by the litigants who come seeking justice. “These decisions (by the CJI) should not be motivated and should be made with a clear mind. Till we don’t know the exact reasons for the suspicion raised by these judges, we should not come to any conclusion,” he says.
Former Law Minister Kapil Sibal says that there is “no such thing as absolute power and absolute discretion… if you function under the Constitution. Even if there is some element of discretion, there must be some norms on how it is to be exercised”.
However, former Supreme Court Judge, Justice K T Thomas maintains the CJI “has to be master of roster” to avoid chaos. Citing a precedent of such “chaos”, he says, “Before P D Desai was made Chief Justice of Calcutta HC, the practice there was that advocates would prepare a brief and file it before a judge whom they were close to. Then the judge would order the registry the number and send it back. Soon, allegations emerged against allocation of certain cases. When Justice P D Desai went there, he stopped all that.”
The roster principle cannot be applied to all cases, says former Delhi HC Chief Justice A P Shah. “It is not a matter of coincidence,” he says, that none of the four senior-most judges has been named to hear constitutional matters. “I find it strange that all seven constitutional benches are headed by the CJI and not even one bench has anyone from Judge 2 to Judge 5. In other words, they have been ousted from constitutional matters. I have never heard of a situation like this. Something is really amiss,” he says.
“Aadhaar is the most important matter of this decade… At least one of the senior four judges should have been there. Why are Justices Chelameswar and Bobde, who have extensively heard the matter, not part of the Aadhaar matter? The complaint is not about whether senior or junior judges are being allocated matters; the complaint is about (alleged) manipulation of benches,” he says. The judges’ letter also mentioned their unease over the judiciary’s stand-off with the government over the Memorandum of Procedure (MoP), a set of guidelines for appointments to the higher judiciary.
In October 2015, a Constitution Bench struck down the government’s National Judicial Appointment Commission, which was aimed at replacing the current collegium system, after which the collegium (which included the present CJI) finalised the MoP and sent it to the Centre in March 2017. While the stalemate over MoP continues, the tension in the collegium has raised fears among some that it would provide an opportunity to the government to “push through” its demands to revise the MoP.
“The executive is fishing in troubled waters. That is what that is accelerating the division,” says Congress’s Moily.
Government sources, however, reject such suggestions and maintain that this is an “internal issue” that the judiciary needs to fix.
The way forward
The recent crisis has given impetus to suggestions that the CJI’s discretionary powers needed to be codified. Here too, opinion appears divided.Though he says discretionary constitutional power “can never be exercised arbitrarily,” former Law Minister Ashwani Kumar appears lukewarm to the idea of codification. “Given the unanticipatable and complex situation in which constitutional powers becomes necessary to be exercised… the purpose of codifying conventions will be counter productive,” Kumar says.
But given that the meetings to resolve the issue have so far yielded no solution, there are demands that it’s time for the CJI, as former CJI R M Lodha puts it, to show “statemanship”. “By statesmanship, I mean that the issues that have been raised by his brother judges should be resolved collectively. These issues have been unresolved and unaddressed, which compelled the four judges to take an unprecedented step. Since the institution is bigger than the individuals, they should collectively ensure that no further damage is done,” Justice Lodha says.
Former CJI Balakrishnan, however, says the solution does not lie in the judges taking the matter to the public. “The judges should sit together and sort things out… There is no authority above the SC. And if differences arise in SC, they should sort it out themselves,” he says.
A member of the ruling establishment too suggested that the political class expects the judiciary to resolve the issue themselves. “When relationships sour, people approach courts. Now when relationships sour in the apex court, I guess they should go back to their (judicial) family to fix it,” he said.
In the week since the press conference, there have been attempts in the ‘family’ — a morning tea here, an afternoon tea there. But the chill has remained. The four judges have come up with what they think is a proposal to make preparing the roster a more “transparent and orderly” process. The CJI is yet to respond. While the government says it will wait for the institution to sort it out, some voices in the ruling establishment have called it an act of “indiscipline.” The Opposition has been wary, unsure of what it can or should do. In this silence, however, one thing is clear: it will take more than time to repair the disquiet and the divide in the nation’s highest court.
With inputs with