Growing distance between CJI, top judges down to 5 key issues
From a PIL over judge Loya’s death to Asthana’s appointment as CBI director and the Aadhaar case
NEW DELHI: The unprecedented press conference by four judges on Friday exposing a rift within the Supreme Court collegium comes just a day after it recommended fresh appointments of judges to the Centre. Justices Jasti Chelameswar, Ranjan Gogoi, MB Lokur and Kurian Joseph criticised an alleged lack of transparency in the selection of judges to try cases, calling it a cause for “serious concern”.
The triggers for the unprecedented step lie in key cases in the recent past. Here is a recap of the flashpoints:
JUDGE LOYA PIL
The immediate flashpoint, according to one of the dissenting judges, was over who should hear pleas regarding the death of special CBI judge BH Loya. “This morning we went to the CJI with a specific request but unfortunately we were denied,” said justice Jasti Chelameswar, without specifying the request. “So we were left with no choice but to take it to the nation,” he said. Asked whether the issue raised with the chief justice was about BH Loya, justice Gogoi said, “Yes”, as per an ANI report. Abdul Naseer a day earlier, which had ordered the setting up of a bench of top five judges in a matter alleging bribing of judges by medical colleges to obtain favourable orders. attorney general on the issue. However, the matter was listed in front of a special bench of three judges headed by the CJI on November 8, 2017, which recalled the October 27 order of the twojudge bench. Such a matter, the four judges said in their letter written to the CJI two months ago, should have either been dealt by a constitution bench or taken up at the chief justices’ conference and the full court comprising all judges of the SC. The letter said the development must be viewed with “serious concern”.
In addition, legal experts say the four judges may have also had an issue with the Constitution Bench set up to hear the challenge to Aadhaar and the Rakesh Asthana case.
RAKESH ASTHANA’S APPOINTMENT, NOV 2017 In this case, the appointment of Rakesh Asthana as special director of CBI was challenged by activist group Common Cause before SC. After a few changes in the bench hearing it, the case was eventually heard by a bench comprising justice RK Agrawal and justice AM Sapre, and headed by the former (the eighth-most senior judge in the apex court). The bench dismissed the challenge.
AADHAAR CASE in the Aadhaar case, a five-judge constitution bench of SC led by CJI Misra will from January 17 begin hearing petitions challenging the legality of the 12 digit biometric unique identification number. Besides, the CJI, the bench comprises justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan. No senior judge is part of the bench. The second senior-most judge on the bench is justice Sikri, sixth in seniority. Besides, the ‘original’ bench on Aadhaar matters was headed by justice Chelameswar and it was this bench that referred the petitions for hearing before a five-judge bench, which wanted that Aadhaar be tested against right to privacy, a fundamental right. The four senior judges may have also had an issue with this, experts added.
In two ways, the crisis in the Supreme Court, which erupted publicly on January 13, was long in the making. One is the fact that over the last few decades, the Chief Justice of India (CJI) more than once relinquished office under a cloud. No enquires were held despite a public clamour. As far as this particular crisis is concerned, the judges said they had written to the CJI Dipak Misra two months ago. But he seemingly did not address their grievances. All four are judges of impeccable character.
Their disclosure marks the end of the collegium system. It is futile to say that the four judges should have gone to the President.
The split in the Supreme Court now is wide open. The CJI needs to respond to the grave charges that have been made.
First and foremost, the principle must be accepted. It was laid down by chief justice Griffiths of the Australian high court in R vs Nicholls that if any judge “…were to make a public utterance …of such character as to be likely to impair the confidence of the public…in the impartiality of