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?

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.