OH MY LORDS!

A re­volt by four Supreme Court judges po­larises the na­tion, rais­ing both alarm and hope. Will it open the doors to re­forms or tar­nish the apex court be­yond re­demp­tion?

India Today - - INSIDE - By Da­mayanti Datta

The re­volt by four se­nior judges of the Supreme Court raises many cru­cial ques­tions. Is a res­o­lu­tion on the cards?

TTHE JUDGES’ LOUNGE AT THE OF­FICES OF THE Supreme Court is a no-man’s land. No one can get close, ex­cept the 25 black-robed jus­tices. Ev­ery day, at 10.15 a.m., they con­vene, drink tea and dis­cuss mat­ters of the mo­ment for 10 pre­cious min­utes, be­fore the gavels get go­ing. A gra­cious court rit­ual that clears the cob­webs but also de­cides ju­di­cial con­tours of the na­tion, say court in­sid­ers. Lawyers would fan­ta­sise about be­ing a fly on the wall here. Now, after Jan­uary 12, the en­tire na­tion is strain­ing to catch their whis­pers.

Some­where within the colon­naded vaults of the Supreme Court, there’s a slim doc­u­ment, ‘Res­tate­ment of Values of Ju­di­cial Life’, pub­lished in 1999. It lists out 16 canons: a judge should not con­test elec­tions, be close to the Bar, hear fam­ily or friends, en­ter pub­lic de­bates, in­ter­act with the me­dia, ac­cept gifts or hos­pi­tal­ity, en­gage in trade, shares or stocks or seek fi­nan­cial ben­e­fits .... Rather, they should be aloof, be­cause ev­ery judge is con­stantly un­der the ‘pub­lic gaze’. The whole point of be­ing a judge is that ‘jus­tice must not merely be done but it must also be seen to be done’. That line is now res­onat­ing.

CRI­SIS WITH­OUT A NAME

On Jan­uary 12, when the four se­nior-most judges of the na­tion—Jus­tices Jasti Che­lameswar, Ran­jan Go­goi, Madan B. Lokur and Kurian Joseph—staged a press con­fer­ence charg­ing the Chief Jus­tice of India, Di­pak Misra, with abuse of power and court tra­di­tions, the na­tion stag­gered. The four judges re­vealed pre­cious lit­tle at the con­fer­ence, but sent out an ex­tra­or­di­nary warn­ing in a letter: that India’s high­est court was “not in or­der” and that this could en­dan­ger democ­racy. The judges dis­trib­uted a ‘date­less’ letter that made no con­crete charges of wrong­do­ing against the CJI, nor did it crit­i­cise any spe­cific judg­ment. In­stead, it lev­elled the charge that by break­ing from the tra­di­tional pro­ce­dures in al­lo­ca­tion of cases to var­i­ous benches—which heav­ily em­pha­sise se­nior­ity—he was al­low­ing what they called “ques­tions on the in­tegrity of the in­sti­tu­tion” to fes­ter.

A “wel­come” move to many and “un­ac­cept­able” to some, the re­sult­ing protests have po­larised the na­tion,

rais­ing both alarm and hope. Alarm at the rare pub­lic rev­e­la­tions of ju­di­cial in­fight­ing and the al­le­ga­tions. And hope, that it will fi­nally open the doors to new re­forms and more trans­parency in the ju­di­ciary. Fierce de­bates and blame games— ide­o­log­i­cal as well as par­ti­san—have bro­ken out across the na­tion: who’s right, who’s wrong? It has also plunged India into a full-blown cri­sis, be­cause the Con­sti­tu­tion doesn’t have laws or tra­di­tions to deal with a sit­u­a­tion like this. All eyes are on what hap­pens next at the Supreme Court: will there be an armistice and the be­gin­nings of peace? Will chaos and hard feel­ings reign? Will the broth­ers in black robes put their heads to­gether to make sure the Supreme Court’s le­git­i­macy is not tar­nished?

UN­COV­ERED AND EX­POSED

Shrouded in mys­tery and robed with power, the world of top judges rarely comes to light. They are not in­stantly recog­nis­able me­dia fig­ures, can­not be ap­proached eas­ily. TV cam­eras and cell­phones are not al­lowed in the court­rooms. Un­like politi­cians, they stay away from so­cial me­dia. Some of their ster­ling rep­u­ta­tion may be be­cause they are not seen as “politi­cians in robes”. “It was a sad ex­pe­ri­ence for me,” says for­mer CJI R.M. Lodha, “just find­ing them there on TV at a press con­fer­ence. All of them have sat with me on the bench at some point or the other.”

To him, the protest of the four judges shows that “if four judges feel this way, what would be the feel­ing of a com­mon lit­i­gant?” The Supreme Court is the pro­tec­tor of rights, he points out, the only in­sti­tu­tion that bal­ances other or­gans of state, the fi­nal ar­biter of the Con­sti­tu­tion, the pro­tec­tor of the rights of our most frag­ile cit­i­zens against the might of the state, where the high­est pro­file, most con­tro­ver­sial and most po­lit­i­cal cases are de­cided.

ALL EYES ON THE COURT

It’s back to busi­ness as usual at the Supreme Court or, at least, parts of it. From 9:30 in the morn­ing, lawyers and lit­i­gants, court-watch­ers and staff be­siege the 15 court­rooms, as usual— some 8,000-plus foot­falls a day. At 10.30, when the bailiffs an­nounce, “All rise,” the jus­tices start hear­ing the usual ar­ray of 60-plus cases a day, with po­lite court­room ci­vil­ity. At the end of the day, the courts wait while the judges walk away. They are the wise men of the na­tion, each with

nearly two decades of ex­pe­ri­ence. Even after Jan­uary 12, they have not let the mask slip. “Now ev­ery­thing has been set­tled,” said At­tor­ney Gen­eral K.K. Venu­gopal on Jan­uary 15. “The courts are func­tion­ing. It was a storm in a tea cup.” But the very next day, he ad­mit­ted rue­fully: “The mat­ter seems to be un­re­solved.”

CJI Misra has not made any state­ments. But last Novem­ber, when his four­month term as the 41st Chief Jus­tice of India wit­nessed un­prece­dented fire­works be­tween top judges and high­pro­file pub­lic in­ter­est lawyers over a med­i­cal col­lege bribery case, up­set­ting the tran­quil­ity of the apex court and keep­ing the na­tion on edge, he had asked in court: “The al­le­ga­tions were a de­lib­er­ate at­tempt to scan­dalise this great in­sti­tu­tion. It has den­i­grated the sys­tem. Every­body now doubts the Supreme Court, that too merely on the ba­sis of ru­mours. How do we re­pair this?”

One of the ways could be ad­min­is­tra­tive im­prove­ments. CJI Misra will need to ap­point 10 judges dur­ing his ten­ure. The Supreme Court, which has a sanc­tioned strength of 31 judges, is work­ing with just 25. With the Naren­dra Modi gov­ern­ment sit­ting on the fi­nal doc­u­ment for ap­point­ment of judges (Me­moran­dum of Pro­ce­dure), 24 high courts are presently func­tion­ing with 672 judges while there are still 407 va­can­cies. But as Supreme Court records show, pend­ing cases are com­ing down un­der CJI Misra’s ten­ure: a drop of 2,174 cases (Septem­ber­Oc­to­ber 2017). This is also the pe­riod that saw the CJI’s court­room han­dling more than 100 cases a day on sev­eral oc­ca­sions, and sit­ting be­yond 4 p.m., be­yond the time for the court to rise for the day.

LONG-SIM­MER­ING TEN­SIONS within the Supreme Court boiled over after the CJI was ac­cused of mis­han­dling the med­i­cal col­lege scam case. This had spe­cial sig­nif­i­cance as a for­mer high court judge was be­ing ac­cused of of­fer­ing bribes to mem­bers of the SC, in a case the CJI him­self was pre­sid­ing over. And although he was not ac­cused of tak­ing bribes, the CJI was fiercely crit­i­cised by se­nior lawyers for re­peat­edly in­ter­ven­ing to en­sure only judges of his choice could hear the mat­ter. In the letter to CJI Misra, the four judges said: “There have been in­stances where cases hav­ing far­reach­ing con­se­quences for the na­tion and the in­sti­tu­tion had been as­signed by the chief jus­tice of this court se­lec­tively to the benches ‘of their pref­er­ence’ with­out any ra­tio­nale for this as­sign­ment. This must be guarded against at all costs.”

The judges’ letter also men­tions the Me­moran­dum of Pro­ce­dure (MoP) that came in the wake of the Na­tional Ju­di­cial Appointmen­ts Com­mis­sion (NJAC) ver­dict in 2015, at the heart of which lay the ques­tion: who will judge the judges? On Oc­to­ber 16 that year, after a marathon 31­day hear­ing, five judges of the Supreme Court—Jus­tices J.S. Khe­har, J. Che­lameswar, Madan B. Lokur, Kurian Joseph and A.K. Goel—had de­clared un­con­sti­tu­tional and void The Con­sti­tu­tion (99th Amend­ment) Act, 2014 and the Na­tional Ju­di­cial Appointmen­ts Com­mis­sion Act, 2014.

The ‘col­legium sys­tem’ of ap­point­ment of judges to the Supreme Court, chief jus­tices and judges to the high courts was de­clared to be op­er­a­tive. In the two­part de­ci­sion, the apex court said that an MoP would be fi­nalised by the Union of India in con­sul­ta­tion with the CJI and other mem­bers of the col­legium. That was the op­er­a­tive por­tion, deal­ing with trans­parency and whether the gov­ern­ment could re­ject some names pro­posed by the SC on grounds of na­tional se­cu­rity. It was only after lengthy ne­go­ti­a­tions that it was fi­nalised by the col­legium un­der Jus­tice Khe­har. The gov­ern­ment was only to pub­lish it, but did not do so, stalling all ju­di­cial appointmen­ts and adding to pen­dency and dis­tress of the courts, as the letter of the four judges sug­gested.

In­ter­pret­ing the two al­le­ga­tions, le­gal scholar Upen­dra Baxi says Che­lameswar and the three other broth­ers had taken the view of a con­sti­tu­tional con­ven­tion, that the CJI can­not ar­bi­trar­ily over­look se­nior­ity. “Would the CJI con­test this con­ven­tion?” he asks. Again, the MoP was fi­nalised by the CJI and the col­legium in March 2017 and sent up to the Cen­tre. The four judges have said that you can’t keep such an im­por­tant mat­ter in sus­pen­sion—you must de­cide. Ei­ther call the col­legium and let it de­cide. Plenty of time has passed. They had sent in re­minders too. “So that is the next step,” says Baxi. “It has been sug­gested that if the MoP is not fi­nalised, they should take the gov­ern­ment’s si­lence as con­sent. The gov­ern­ment has been in­formed, the SC should put the MoP in place now.” Will the CJI do it?

CLASH OF TOP JUDGES

Is it more of an ego clash? The SC has a his­tory of dis­con­tent and clashes be­tween the CJI and the se­nior­most judge. The clash of ide­olo­gies be­tween for­mer CJI Y.V. Chan­drachud and the next in line, P.N. Bhag­wati, of­ten spilled out into the open in the early 1980s. SC lawyers also re­mem­ber the clashes be­tween Jus­tices Sam Piroj Bharucha and A.S. Anand, the man he would suc­ceed as CJI in 2002, among many oth­ers.

Court ob­servers say the con­flicts over trans­parency started dur­ing CJI T.S. Thakur’s time. As the lone dis­sent­ing judge in the NJAC Act, J. Che­lameswar wanted cer­tain trans­paren­cies in the col­legium. In Au­gust 2016, when

The SC has a his­tory of dis­con­tent and clashes be­tween the CJI and the se­nior­most judge

the col­legium de­cided to de­fer a de­ci­sion on the re­quest of Ker­ala High Court judge, Jus­tice Dama Se­shadri Naidu, for a trans­fer to his home state of Andhra Pradesh, (be­cause of his pro­fes­sional as­so­ci­a­tion with Jus­tice Che­lameswar’s lawyer son and his re­la­tion­ship with Chief Min­is­ter N. Chan­drababu Naidu), Che­lameswar, ap­pro­pri­ately, re­cused him­self from the col­legium meet­ing but did not leave the room, upon which a de­ci­sion on the is­sue was kept pend­ing.

In Septem­ber 2016, he wrote a three­page letter to CJI Thakur, protest­ing the lack of trans­parency in judges’ appointmen­ts, that some­how be­came pub­lic. From Oc­to­ber 2016, Che­lameswar re­fused to sit with the four se­nior­most judges of the SC, in­clud­ing the CJI, to con­sider names for ap­point­ment as judges. SC sources say the CJI had writ­ten to Che­lameswar seek­ing his par­tic­i­pa­tion in the col­legium meet­ing, but he re­fused. In fact, skip­ping the col­legium meets be­came a pat­tern. Che­lameswar would com­mu­ni­cate in­stead through notes on the min­utes cir­cu­lated. The same con­tin­ued un­der CJI Khe­har. In Fe­bru­ary 2017, he had protested the non­el­e­va­tion of Jus­tice K.M. Joseph, chief jus­tice of the Ut­tarak­hand High Court, to the Supreme Court. Jus­tice Joseph was the judge who had struck down the im­po­si­tion of Pres­i­dent’s rule in Ut­tarak­hand in 2016. In Oc­to­ber 2017, when Che­lameswar be­came the sec­ond top judge in the col­legium, a de­ci­sion was taken to make all col­legium rec­om­men­da­tions for

el­e­va­tions and other busi­ness on a new ‘res­o­lu­tions of the col­legium’ sec­tion of the SC web­site.

THE ROAD AHEAD

So­lu­tions, though still in the for­ma­tion stage, are pour­ing in. Here are a few from the ex­perts we spoke to. The sooner they can be im­ple­mented the bet­ter.

“It could have been sorted out if the CJI and brother judges had sat to­gether,” says R.M. Lodha. “I have been a CJI and I can tell you, your brother judges be­come like mem­bers of your fam­ily. If is­sues are raised, they have to be dis­cussed and sorted out.” If the judges of the apex court can dis­cuss con­sti­tu­tional judg­ments with one mind and one judge­ment, can’t these be dis­cussed?

The press con­fer­ence is the cul­mi­na­tion of a process, feels Arghya Sen­gupta, founder and re­search di­rec­tor, Vidhi Cen­tre for Le­gal Pol­icy. It’s like a mar­riage, he ex­plains. “At some point, there are things that go wrong with a mar­riage. You can’t keep hush­ing it up, you have to have a frank con­ver­sa­tion with your part­ner to re­solve it.” What­ever the sit­u­a­tion with the four judges, it would be a shame if it got con­verted into a four ver­sus one sit­u­a­tion, he adds. The root is­sue is the cul­ture of opac­ity. The CJI ap­pears to have as­signed benches that ap­pear to the other four judges as odd. Al­le­ga­tions of this na­ture have been an “open se­cret”, heard on and off for a very long time, but be­cause the ju­di­ciary works in a cul­ture of opac­ity any pub­lic dis­af­fec­tion is quickly brushed un­der the car­pet. “This is a time for well-mean­ing ju­di­cial re­form—whether ad­min­is­tra­tive, pro­ce­dure or power. That would be the happy con­clu­sion to all of this,” says Sen­gupta.

Ac­cord­ing to pub­lic in­ter­est ad­vo­cate and Cam­paign for Ju­di­cial Ac­count­abil­ity & Ju­di­cial Re­forms (CJAR) mem­ber Prashant Bhushan, the is­sue raised by the four judges are straight­for­ward enough: “They say, though the CJI is the mas­ter of the ros­ter, he does not have ar­bi­trary power to list cases wher­ever he wants on an in­di­vid­ual ba­sis, es­pe­cially on sen­si­tive mat­ters.” Bhushan sug­gests that the SC pass an or­der on the ju­di­cial side, fram­ing fair and ra­tio­nal rules. Will that work? “It has not hap­pened be­fore, but there are many things that are hap­pen­ing for the first time,” he adds. On Septem­ber 16, the CJAR called for an in-house in­quiry against the CJI in the med­i­cal scam case by five se­nior-most judges of the SC.

On Jan­uary 14, four for­mer jus­tices—P.B. Sawant (Supreme Court), A.P. Shah (Chief Jus­tice, Delhi High Court), K. Chan­dru (Madras High Court) and H. Suresh (Bom­bay High Court)—wrote an open letter to the CJI, urg­ing him to set up a Con­sti­tu­tion bench to deal with sen­si­tive, pend­ing cases: “This

is­sue needs to be re­solved and clear rules and norms must be laid down for al­lo­ca­tion of benches and dis­tri­bu­tion of cases… to re­store pub­lic con­fi­dence in the ju­di­ciary and in the Supreme Court.” Un­til then, they rec­om­mended that “all sen­si­tive and im­por­tant cases, in­clud­ing pend­ing ones, be dealt with by a Con­sti­tu­tion bench of the five se­nior­most judges of the court”.

All re­form must be­gin with that sin­gu­lar ques­tion: is there enough ev­i­dence to sup­port the al­le­ga­tions of cor­rup­tion that are be­ing lev­elled at the CJI? Be­hind the al­le­ga­tions of ar­bi­trari­ness in al­lo­cat­ing cases there is the sus­pi­cion that this de­par­ture from con­ven­tion is an at­tempt to fix cases or ma­nip­u­late the out­come, at the be­hest of po­lit­i­cal par­ties. But the is­sue is not just be­tween four and one. There is the in­sin­u­a­tion that the CJI is us­ing col­leagues who are amenable to cor­rup­tion and pres­sure. Baxi says, “Such sus­pi­cion may have place in pol­i­tics, whether it has any place in the court­room, I don’t know. It is un­wor­thy of us to get into this con­tro­versy be­cause we don’t know enough of the facts.”

What if a judge turns around and says, “It’s con­tempt of court to at­tribute mo­tives to me. I have signed an oath un­der the third sched­ule of the Con­sti­tu­tion. How can any­one from out­side say I am po­lit­i­cally mo­ti­vated and bi­ased?” The pol­i­tics of jus­tice has kicked in. The Supreme Court will never be the same again.

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