Growing distance between CJI, top judges down to 5 key issues
TALKING POINTS 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 i mmediate 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.
MEDICAL COLLEGE BRIBERY CASE, NOV 10, 2017
A five-judge constitution bench headed by CJI Dipak Misra in November ruled it is the prerogative of the Chief Justice to decide which bench should hear a particular case. The bench effectively overturned the order of a two-judge bench comprising justice Chelameswar and justice S 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.
MEMORANDUM OF PROCEDURE , OCT 2017
A petition questioning the delay in finalising the Memorandum of Procedure (MOP) for appointment of judges to the higher judiciary was dealt by a bench of justices AK Goel and UU Lalit. The bench had issued a notice to the 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 com- prising 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 Chan- drachud 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.
What has happened today could have been avoided. The judges will now have to act in statesmanship and ensure that the divisiveness is wholly neutralised and total harmony and mutual understanding will prevail in future. This was never expected. As judges we should have restraint. The public will lose confidence in the institution. People go to the judiciary for settling their disputes. Today’s development reflects that the judiciary cannot resolve its own differences.