In the most unprecedented events in the history of the Supreme Court (SC) of India, four senior most SC Judges, namely Justice Jasti Chelameswar, Justice Ranjan Gogoi, Justice Kurian Joseph and Justice Madan B Lokur have publicly aired, in a Press Conference dated 12.01.2018, their differences and grievances against the Chief Justice of India, Justice Dipak Misra (CJI) against the alleged allotment of important matters by the CJI to certain Benches of preference and the alleged formation of Constitution Benches by the CJI by including only certain Judges and ignoring Senior Judges of the Apex Court.
The 4 Judges, who are all members of the SC Collegium, have released a letter, which was earlier written to the CJI, to the media detailing their critique of the CJI which stated the following:
- Certain judicial orders passed by the SC have adversely affected the functioning of justice delivery system.
- It is a privilege of the Chief Justice to form a roster and assign cases to different judges/benches of a court. But it does not imply that it is recognition of any superior authority of the Chief Justice over his colleagues. Rather, the Chief Justice is only the first among equals.
- While determining a roster, there are well-settled and time honored conventions to guide a Chief Justice as to the strength of the Bench required to deal with a particular case or the composition thereof.
- Any departure from the aforesaid two rules is not desirable as it would create doubts about the integrity of the Institution.
- They have made allegations against the current CJI pertaining to his non-adherence to the twin Rules above-mentioned in preparing the roster and assigning important cases to benches of his preference without any rationale.
- They have referred to a two-Judge Bench SC matter of P. Luthra vs. Union of India, 2017, wherein a writ petition was filed before the SC challenging the recommendation of four names by the SC Collegium in May, 2016 for appointment as SC Judges, on certain grounds, one of which is that the Collegium should not have made the recommendation without finalizing the Memorandum of Procedure (MoP), which has to be complied with for appointment of judges to high courts and SC, as suggested by the Constitution Bench of the Supreme Court vide judgment dated 16.10.2015 in Supreme Court Advocates-on-Record Association & Anr. Vs. Union of India & Ors.
- The two-Judge Bench of SC in P. Luthra (supra) had rejected the Petition and held that the Memorandum of Procedure should be finalized soon, in view of larger public interest.
- But the four SC Judges objected to and stated that the issue about finalization of MoP was already dealt by the Constitution Bench of the SC in Supreme Court Advocates-on-Record Association & Anr. (supra). Later, the MoP was also finalized by the then CJI and the Collegium, and was sent by the then CJI to the Government, to which the latter never responded. So, the MoP should be deemed to be accepted by the Government. Therefore, there was no occasion for the two-Judge Bench in P. Luthra (supra) to make any observation about finalization of the MoP or that such issue should not linger on for an indefinite time. Thus, matter of such grave importance should be dealt with by none other than a Constitution Bench.
- The four SC Judges have asked the CJI to view this issue with serious concern and to rectify the situation and take remedial measures after discussing it with other members of the Collegium and if need be, with other Judges of the SC.
The four SC Judges further stated about the alleged preferential treatment by the CJI that unless this institution is preserved and it maintains its equanimity, democracy will not survive in this country or any country. For a survival of a democracy it is said that a hallmark of a good democracy is an independent and impartial judge. It has been speculated by some SC Advocates that the constitution of Benches and allocation of matters is being administratively done by the SC in a manner more palatable to the Government.
The 9-Judge Bench of the Apex Court in Supreme Court Advocates-on-Record Association & Anr vs. Union of India & Ors 1993 had held that independence of the Judiciary is a part of the basic structure of the Constitution of India. Further, the SC herein made the following observations and rulings:
- The Judiciary, under the Constitution, is designed to act as an intermediary body between the people on the one side and the Executive on the other.
- The role of the Judiciary, under the Constitution, is a pious trust reposed by the people.
- In the event that the Judiciary fails, the Constitution also fails and as a result, people might opt for some other alternative.
- Independence of Judiciary is a sine qua non of democracy, i.e. so long as the Judiciary remains truly distinct from both the Legislature and the Executive, the general power of the people can never be endangered from any quarters.
- That the judicial independence is inextricably linked and connected with the constitutional process of appointment of Judges of the higher courts. Therefore, there cannot be an independent Judiciary if the power of appointment of judges vests in the Executive. So, if the final say of the Executive in the process of appointment of judges is excluded; only then can the independence of Judiciary (i.e. independence of individual judges as well as of an institution as a whole) be maintained. That is because the Governments – Central or the State – are parties before the courts in a number of cases.
- Moreover, the SC stated that the view of the Chief Justice of India is to be expressed in the consultative process as truly reflective of the opinion of the Judiciary, which means that it must necessary have the element of plurality in its formation. It implies that in actual practice, the final opinion expressed by the Chief Justice is not merely his individual opinion, but an opinion formed collectively by a body of Judges at the apex level in the Judiciary.
There have been mixed reactions across the country to this unprecedented move of the four SC Judges. The SC Bar Council has decided to form a 7-member delegation of the Council who will meet the 4 SC Judges to resolve the matter at the earliest.