Judges’ presser sharpened double-edged swords wielded by activist lawyers
It was Friday, January 12, 2018. Fridays in Supreme Court are busy days. But four seniormost judges wound up judicial work in 45 minutes. The SC corridor was agog with rumours about an impending unprecedented press conference by them. Journalists rushed to Justice Jasti Chelameswar’s official residence. History was made. The rumours came true. The judges cornered then CJI Dipak Misra.
But Justice Chelameswar donned a worried look, his gaze fixed at the entrance of his residential bungalow. Explaining the worry lines on his forehead, he had said, “If the three johnnies don’t come, I will be in a soup as I had put my neck out.” The three — Justices Ranjan Gogoi, Madan B Lokur and Kurian Joseph — trooped in a little later. Justice Chelameswar sported a smile of relief.
We all know what happened later — how an activist lawyer attended the presser, was stopped from asking questions by journalists and was closeted with Justice Chelameswar immediately after the press conference. How a Left leader went to meet Justice Chelameswar, how the presser was used to exert pressure on the then CJI by politician-lawyers to defer adjudication of Ayodhya case and how it became aground for moving an unprecedented removal motion by Congress against the then CJI in Parliament.
The presser further unnerved CJI Misra, who was on the back foot since November 2017 when Justice Chelameswar attempted to snatch the CJI’s power as ‘master of roster’ by setting up a fivejudge bench to hear a petition by ‘forum hunting’ activist-lawyers seeking a probe into the CJI’s alleged role in the medical college admission scam.
CJI Misra had to hurriedly set up a five-judge bench to annul Justice Chelameswar’s order and reiterate the CJI’s sole prerogative in assigning a case to a particular bench and determining the number of judges on the bench. The CJI was damned by both the rebel judges and the activist-lawyers for allocating cases of national importance arbitrarily to select benches of “junior” judges perceived to have political leanings.
Less than a year later, CJI Ranjan Gogoi notified a five-judge constitution bench to adjudicate the Ayodhya land dispute case. It surprised many as a three-judge bench on September 27 had rejected a demand for its reference to a five-judge bench and ruled that a three-judge bench would decide it.
CJI Gogoi explained that he used his plenary powers under Order VI Rule 1 of Supreme Court Rules, 2013, to set up the five-judge bench. On wonders why the same rule was not the saviour for CJI Misra when he set up a five-judge bench for reiteration of the CJI’s prerogative in allocating cases to a bench and its numerical strength. While CJI Mishra was damned, the Muslim parties hailed CJI Gogoi saying “this is how a CJI must act”. If a CJI’s orders are favourable, activist-lawyers waste no time in crowning him as the most independent judge on earth.
Allocation of petitions seeking probe into alleged suspicious death of judicial officer B H Loya to a bench headed by Justice Arun Mishra had triggered the January 12 presser. Justice Mishra recused. A that he was worse than CJI Misra. These lawyers have already started digging into the past to find some link to brand CJI Gogoi as close to the government. Such is the danger for a CJI.
After his retirement, Justice Chelameswar had boasted that he had strived for transparency and objectivity in the collegium process for selection of judges to the SC and HCs. When he was part of the collegium, Justice Chelameswar had taken advantage of the then CJI’s proposal to abruptly change an earlier recommendation — a Karnataka HC judge’s transfer to Bombay HC was to be annulled and he was to be sent to Allahabad HC.
Justice Chelameswar agreed, but with a quid pro quo — transfer a Kerala HC judge to Andhra Pradesh HC even though he knew that the HC judge, prior to his appointment, had given an affidavit to the SC to never press for his transfer back to AP HC. The CJI had to agree. But the Union government refused to act on this recommendation.
The CJI Gogoi-headed collegium has now recommended transfer of that Kerala HC judge to Bombay HC, superseding its earlier recommendation. What is the status of transparency and objectivity, both then and now, which the judges’ press conference had pressed for?
In SP Gupta case [1981 (sup) 1 SCC 87], described as the first judges’ case, the SC had said, “Unfortunately, it is the easiest thing to make false, reckless and irresponsible allegations against judges in regard to their honesty and integrity and in recent times, the tendency has grown to make such allegations against judges because they have decided the case in a particular manner, either against a dissatisfied litigant or contrary to the view held by a group or, section of politicians or lawyers or members of public.”
How true today after nearly 40 years! When Justice Gogoi took umbrage to the Loya case allocation during the presser, activist-politician lawyers hailed him as the epitome of honesty, integrity, independence and fearlessness. In less than a year, the same lawyers have turned against him merely because he refuses to be cowed down by their tactics and continues to decide cases on merit, with or without meeting their expectations. Such is the life of a CJI, very lonely and unnerving.