In January, in a dramatic and unprecedented press conference, four senior-most judges of the Supreme Court went public with their grave concerns about its functioning. They raised questions about the conduct of the Chief Justice of India, especially on the constitution of benches and allocation of cases. On Wednesday, an SC bench, led by the CJI, underlined that the CJI is “first among equals” with “exclusive prerogative” to allocate cases and constitute benches and that “there cannot be a presumption of mistrust” about the discharge of the CJI’s constitutional responsibilities. While questions have been raised in the legal fraternity over whether the CJI should have heard a matter involving the powers of his own office, Wednesday’s judgment is unequivocal about the “entrustment of authority” to his office — not just for “the efficient transaction of the administrative and judicial work of the court”, but also, significantly, for “the purpose of securing the position of the Supreme Court as an independent safeguard for the preservation of personal liberty.” Now, CJI Dipak Misra, the pre-eminence of his position as master of the roster underlined, needs to urgently turn his attention to a matter that concerns the position and independence of the Court in the matrix of institutions. He must address the critical issues flagged by a letter written to him by Justice Kurian Joseph, which have to do with the propriety and process of judicial appointments.
Justice Joseph, a member of the collegium, has pointed to the government’s unprecedented act of sitting on the collegium’s recommendation to elevate a judge and a senior advocate to the apex court. It is a matter, he suggests, that concerns — and threatens — the “very life and existence” of the Supreme Court. Reportedly, the central government is sitting on the name of one of the two candidates, Justice K M Joseph, who had ruled in April 2016 against the Centre in the case of imposition of President’s Rule in Uttarakhand. But it is not just the appointment of Justice K M Joseph that has invited allegations of undue executive interference. Last month, Justice Chelameswar, also a member of the collegium, had written to the CJI on the questionable propriety of the law ministry writing directly to the Karnataka High Court, despite the collegium reiterating a name for elevation to the high court. The stalled appointment of judicial officer P Krishna Bhat, accused of sexual harassment by a woman judicial officer and cleared by the court’s inquiry, has also provoked controversy and a busy exchange of letters between the Union Law Ministry, CJI Misra, Chief Justice of Karnataka HC Dinesh Maheshwari and Justice Chelameswar.
These matters — government withholding assent to the elevation of a judge who gave a politically inconvenient verdict, or government blocking an appointment cleared by the court — have gained gravity in the current political moment. Anxieties have gained ground that institutions appear more vulnerable in the face of a political executive armed with a decisive mandate. It is on CJI Misra to step up to the responsibility and challenge of upholding the independence of his institution, to assert its capacity to govern itself and self-regulate. The option of brushing the concerns expressed by Justices Chelameswar and Kurian under the carpet simply does not exist.