UPENDRA BAXI

Professor of Law, University of Warwick, UK

There are obviously different views on the movement of the four senior-most justices who held a press meet and released a letter written by them to the Chief Justice of India sometime in November. The court needs to soon take a collective view on the matters raised, although the crisis now seems to be over.

Some hail the event as an heroic act of courage, some condemn it as ‘trade union tactics’, while others say it was

unfortunate but necessary and hope that a united Supreme Court will be back with us soon. This seems to have now happened. But we do not know whether and how the underlying issues are settled; the second issue, raised by the letter, was that of the collegium while the first issue was the prerogative of the CJI to constitute the benches.

The second issue is little discussed. The Union of India (UoI) has not responded to the Memorandum of Procedure (MoP) finalised by the Collegium in March 2017. At least two justices had opined that the UoI must be deemed to have consented to what was proposed. The first issue relates to certain conventions binding all chief justices as masters of the roster. They have large, but not absolute discretion and should not violate constitutional conventions while forming benches. All justices are co-equal, except for the processes of the collegium or CJI-ship, which are matters governed by seniority. Outside this, no justice of the Supreme Court or the high court is junior or senior; all speak for the court and there is equality in jurisdiction.