Seniority of Supreme Court judges negated

The Chief Justice of India (CJI) with two judges has declared his office to be the repository of Constitutional trust even while facing the ignominy of an impeachment. The bench has also negated the concept of “senior” and “junior” judges of the apex court without explaining how the next CJI will be selected if there are no “senior” or “junior” judges. Simultaneously, the fourth “senior” judge, Kurian Joseph, has allegedly claimed the “life and existence of the Supreme Court was under threat.”

“Constitutional trust” can be subjectively interpreted by conformist judges. This was evident when a three-judge bench comprising CJI Misra, Justices A M Khanwilkar and D Y Chandrachud declared the CJI as a “repository of Constitutional trust” and an “institution in himself ” as earlier declared by a five-judge bench, imbuing the CJI with a divine halo because he has a monopoly in making the roster and assigning work to judges. No questions can be asked.

This interpretation is sinister because the CJI is only the first among equals. The Supreme Court collegium has gone by impressions and not a rigorous evaluation of those elevated to the apex court— if Justice Jasti Chelameswar is correct. This is a revelation which is non pareil in Indian judicial history, dividing the judges into either rebels or complacent judges. Justice Kurian Joseph has joined Chelameswar by writing to all 22 judges claiming the (Modi) government was sitting on the collegium recommending Justice K M Joseph and Indu Malhotra as apex court judges.

Chelameswar has cleverly said the CJI’s impeachment was “not a solution to this problem.” But, perhaps, it is because this “rebel” judge knew he was setting the cat among the pigeons when he called a press conference on January 12. Even after that, the so-called four “senior” judges were bypassed in all “sensitive” matters so that the most sensitive PILs remain with the CJI-headed bench.

The judiciary is always shy of legislating even when justice is replaced by injustice, but the executive is not shy to encroach on judicial independence. This was shown when law minister Ravi Shankar Prasad slammed Chelameswar for twisting facts to allege that Karnataka district judge Krishna Bhat was not elevated despite two recommendations of the collegium.

The woman judge, who cried sexual harassment against Judge Bhat, was never given a hearing, according to the government. But the fact remains that she complained of sexual harassment only after Bhat found her guilty of professional misconduct. The law minister’s letter to the CJI was never given to Chelameswar who cautioned there should never be bon-homie between the executive on one side and the judiciary or the media on the other.

Chelameswar, in effect, indirectly accused CJI Dipak Misra of this precise bon homie with the Modi government by assigning sensitive disputes to benches of his choice with predictable outcomes. The only bench which slammed the government recently was one headed by two of the four “rebel” judges, Madan Lokur and Deepak Gupta which moaned that the executive was “befooling” (sic) the top court by diverting lakhs of crores of rupees from environment-related matters to other causes.

The two rebels, Chelameswar and Kurian Joseph, have publicly declared they will never accept government posts like heading commissions after they demit office this year. CJI Dipak Misra, who will demit office in October, has made no such declaration although he is the sole repository of Constitutional trust. Former CJI P Sathasivam became Kerala governor after he attended BJP chief Amit Shah’s son’s wedding in Delhi after demitting office.

Another CJI, K Balakrishnan, never responded to corruption charges. Indira Gandhi superceded two “senior” judges to make her hand-picked judge A N Ray the CJI in 1973. This made Justice Hidyatullah remark there were some “forward-looking judges” and other judges “looking forward to their careers” as CJIs, while today, we must believe that the CJI is the sole institution in whom Constitutional trust reposes.

The Modi government has tried to emulate Indira Gandhi by perhaps indirectly transferring two “inconvenient” judges. But, there is no evidence of this wrongdoing in the CJI’s office. Justice Jayant Patel of the Gujarat high court resigned after he was transferred to Allahabad to prevent him from taking oath as the chief justice of the Gujarat high court.

Patel embarrassed the Modi government by ordering a CBI probe into the Ishrat Jahan fake encounter case. Another example is of Justice Rajiv Shakdher, who was transferred to Madras from Delhi after he quashed a lookout notice against Greenpeace activist Priya Pillai. Justice K M Joseph again embarrassed the Modi government by quashing President’s rule in Uttarkhand.

The Modi government has opposed Joseph’s elevation to the apex court by claiming seniority has been bypassed although he is clearly the seniormost among all high court chief justices. This reasoning of the Modi government contradicts the three-judge bench assertion that there are no “senior” or “junior” judges. So, why is Joseph not elevated?

Clearly, the Constitution is silent on this negation of seniority in the Supreme Court because if the CJI is the sole repository of Constitutional trust, what about the other judges who all take an oath to uphold the Constitution? Finally, whether Justice Ranjan Gogoi will become the 46th CJI will be watched with bated breath. If he does not, the Indian judiciary has lost its independence as Justice Chelameswar has hinted at. And, if he is sworn in as a CJI, this will mean the Indian judiciary can hold its head high.

The writer holds a PhD in media law and is a journalistcum-lawyer of the Bombay high court.