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OPINION: The Supreme Tussle

The rift between the CJI Deepak Misra and the next four senior most Judges of the Supreme Court, viz., Justices Chelameshwar, Ranjan Gogoi, Madan Lokur and Kurian Joseph has reached new heights as the CJI has constituted a Constitutional bench comprising none of these four revolting judges. The press conference that these four judges called for last Friday and their letter to CJI that was released to the media, and widely shared in social media, brought to light the differences of opinion and inconsistency of thoughts between the senior most members of Indian judiciary.

While most news reports highlighted the ‘Save democracy’ and ‘save judiciary’ part of the judges’ conference, the source of the rift seems to be two important things: the role of the CJI as the master of the roster and being left out in the matter finalizing Memorandum of Procedure in the mode of appointment of Judges in the High Courts and the Supreme Court. Reference to this effect can be seen in the following words in the letter written by the Judges to the CJI:

‘…the Chief Justice is the master of the roster with a privilege to determine the roster…a convention devised for a disciplined and efficient transaction of business of the Court but not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues…there have been instances where case 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 rational basis for such assignment. This must be guarded against at all cost.’

Similarly, the letter also points out how the matter with respect to finalizing the ‘Memorandum of Procedure’ in appointment of Judges and corrective measures other than impeachment was heard by a bench other than the one which gave directions in this regard in R.P. Luthra Vs. Union of India. The judges move ahead and insist to the CJI that ‘Any issue with regard to the Memorandum of Procedure should be discussed …by the Full Court…the Hon’ble CJI is duty bound to rectify the situation and take appropriate remedial measures after a full discussion with the other members of the collegium..’

Image Courtesy: PTI

Though news reports might suggest that this was long a covert event which vented up suddenly, any prudent member of judiciary could have apprehended this development a few months back. This is based on a few important sequences of events that happen earlier: 1) the dismissal of petitions filed by Kamini Jaiswal and CJAR seeking constitution of an SIT to investigate certain allegations of corruption involving judicial pronouncements; and 2) rift within the collegium in the matter of appointment of Judges.

The background of the Kamini Jaiswal and CJAR petitions is as follows: A private medical college debarred by the Government from admitting students had approached the Supreme Court challenging such a bar. Subsequently, it is alleged that certain middlemen, including a retired Judge of Orissa High Court tried to persuade the medical college into bribing the Supreme Court judges to obtain a favourable judgment. The CBI recorded the FIR and arrested the alleged middlemen, including the retired High Court judge, and recovered huge sums of money from them. It is pertinent to state that the bench with which the petition filed by the medical college was pending comprised of the CJI himself. It is in this context that advocate Kamini Jaiswal and NGO Campaign for Judicial Accountability and Reforms (CJAR) came up with their petitions to constitute SIT to investigate the issue of corruption in the Judiciary. Both these petitions insisted that the CJI Misra should not be a part of any proceedings, both administrative and judicial, in the case. When the matter came up before the bench headed by Justice Chelameshwar, it was ordered that such matter of importance be heard by five senior most judges of the Supreme Court. Subsequently, a five-judge Constitution bench headed by the CJI asserted the dominance of CJI as the master of the roster in order ‘to protect the Supreme Court from anarchy’. The CJI also laid down guidelines for the purpose of ‘mentioning cases’ in Court halls and further asserted that Judges have to act within the parameters set down by rules and precedents of the Supreme Court to protect judicial integrity. This necessarily invalidated the order of Justice Chalameshwar’s bench in constituting a five-judge bench to hear the petitions. The petitions were also subsequently dismissed by a Constitution bench constituted by the CJI, of which he himself was a member. It also appears that the CJI asked the gathered lawyers if it was not contemptuous to say that the CJI should not hear a case and asserted that there was no procedure in law to name the CJI in an FIR.

It is my humble opinion, that the petitioner had every right to ask the CJI not to hear the matter because if the relief sought were to be allowed, the CJI himself could be subjected to investigation on the allegation since the medical college case was pending before his own bench. How then will the petition be heard impartially by the CJI? It is well settled principle of natural justice now that nobody shall be a judge for his own cause. The real test is not whether a Judge is biased, it is only whether there is likelihood of bias because ‘bias’ is a state of mind which nobody could identify with mathematical precision.

It is also totally wrong to state that there is no procedure to name the CJI in an FIR. It should be noted that in the case of K. Veeraswami Vs Union of India, (1991) 3 SCC655, the Supreme Court has laid down that registration of FIR against a judge required consent of the CJI and if the FIR is to be registered against the CJI himself, the Government may consult any other judge or judges of the Supreme Court.

While dismissing CJAR’s petition, the Court also witnessed heated exchange of words between the CJI who himself was a member of the bench he had constituted to hear the matter, and the counsel for the petitioner, Prashant Bhushan. Though the latter was warned of contempt, no contempt was initiated as the CJI himself remarked that he was not even worth such contempt.

Similarly, in the matter of appointment of judges, finalizing Memorandum of Procedure with regard to the process and the procedure followed by the collegium, there has long been discontentment and disapproval within the collegium, particularly from Justice Chelameshwar. Justice Chelameshwar has for long been vocal about making the collegium more transparent. He even insisted on recording the minutes of the proceedings and also recording the reasons for recommending or disapproving a name for appointment to the higher judiciary.

Even back in September 2016, Justice Chelameshwar, as a member of the Collegium, come out openly against the Supreme Court’s collegium system of appointment of Judges. He had refused to attend the Collegium meeting citing lack of transparency as nothing discussed in the Collegium remains on record. It also created a big uproar as it came when the CJI Thakur had just lashed out at the PM for not whispering a word on the issue of appointment of Judges in his Independence Day speech that year.

As an embarrassing development, the CJI had also broken down in the joint conference of Chief Ministers and Chief Justices over the ‘inaction’ of the executive in filling up the vacancies.

In its landmark judgment, the Supreme Court had only then struck down the Constitutional amendment that established National Judicial Appointments Commission to make recommendations in the matter of appointment and transfer of Judges of the Supreme Court and the High Courts as it affected the ‘independence of Judiciary’. It is important to note that Justice Chelameshwar was the lone dissenting judge on the bench that struck down the amendment.

Justice Chelameshwar, in his dissenting judgment wrote: “Transparency is a vital factor in constitutional governance. Transparency is an aspect of rationality. The need for transparency is more in case of the appointment process. Proceedings of the Collegium were absolutely opaque and inaccessible both to the public and history, barring occasional leaks.”

Testimonially, Justice (retd) Markandey Katju also remarked that: “Some of the worst appointments in the Supreme Court and High Courts have been made by the Collegium system due to its lack of transparency and opaqueness… I call it the ‘ You scratch my back, and I will scratch your back ‘ system. Justice A tells Justice B ‘ You support my man, and I will support your man ‘. In other words, before the formal meeting of the Collegium bargains are done between the members of the Collegium to get their men selected.”

The proposed NJAC consisted of 6 members headed by the CJI, two of the members were senior most judges of the Supreme Court. The other three members included the Law Minister and two other members to be appointed by a committee consisting of the CJI, Prime Minister and the Law Minister. The Commission consisted of equal number of members of Judiciary and Executive, while the commission itself was headed by the CJI. The NJAC provided an opportunity to end the decades old confusion giving equal role to the executive and judiciary. It could have rendered the appointments transparent.

After the NJAC verdict, the Supreme Court directed the Government of India to come up with ‘Memorandum of Procedure’ in making judicial appointments. Since then the Court has rejected several MoPs suggested by the Government though the latter has compromised so much on its role on the matter.

Subsequently, in an interview with the news channel CNN-News 18, the Prime Minister stated that ‘There is no scope for any confrontation or tension with any constitutional institution. There must be warmth with Judiciary as needed for constitutional decorum. I try my best to maintain as much decorum as possible.”

Despite passage of more than a year the bench constituted by the CJI for this purpose and the Government of India have not finalized the Memorandum of procedure. This has angered Justice Chalameshwar and his colleagues who had decided the case Supreme Court Advocates on Record Association Vs. Union of India, in which the MoP was a subject matter.

Whatever is said and done, friction within the Supreme Court should not be allowed to continue as the ultimate sufferers are the people who are the important stake holders of the Judicial system. On one hand, the CJI should become more democratic and let other judges vent out their grievances to him; on the other, the four revolting judges should try to make out valid proposals without necessarily attacking the CJI personally. If a universally acceptable compromise is not arrived at, this may be the beginning of the end of judicial integrity.

Nirmalkumar Mohandoss is Advocate at High Court of Madras. Views expressed are personal of the author. The Indian Jurist does not take responsibility for the views expressed or facts stated.

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