CJI needs to reply to grave charges made by judges

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 the court…if it were a fair comment would, so far from being a contempt of court, be for the public benefit”.

The same holds good for judicial conduct, which raises questions. In his classic Judges, Lord Pannick said that the criticism of the judges will not damage the rule of law.

It may, by identifying defects in the legal system, promote the cause of justice.

In this instance, the confidence in the judiciary has been impaired by the differences between the CJI and senior judges.

That the court is hopelessly divided as is evident from the strong language used by Justices Aggarwal, Arun Mishra and AM Khanwilkar in their judgment on November 14, 2017 when they say understandably that the CJI is the “master of the roster”.

This is precisely the grievance of four judges, who say that the the CJI has been behaving in the assignment of cases in an arbitrary manner. He is due to retire shortly.

The full court cannot resolve the matter, only the CJI and the senior judges can.

“Ye are the salt of the earth; but if the salt hath lost his savour, were with shall it be salted?” (St Mathew 5:13)