Supreme Court 4:1 – A Showdown At The Cost Of An Institution

While I waited for my matter to be taken up in court, glancing through my Twitter feed on 12 January was appalling. A tweet about a press conference at Justice J Chelameswar’s residence on a working day at 12 noon would naturally take you aback. What followed was unprecedented. The top four judges of the Supreme Court, next to the Chief Justice of India (CJI), came before the media and expressed their displeasure about the manner in which the administrative functions of the CJI were being handled and the judicial impact it could possibly have. They also shared a copy of a seven-page letter addressed to the CJI.

This was the second attempt to bring down the CJI. The first try involved the medical college scam, wherein the matter was mentioned surprisingly before Chelameswar and the same day hearing was granted in the matter. The petition pertained to allegations of judicial corruption in the medical college scam, which sought to indict the CJI. On hearing the news of such abrupt and out-of-turn hearing being granted to the matter by Chelameswar, the CJI passed an administrative order to the effect that it is within the exclusive domain of the CJI to determine the roster of matters and such hearings cannot be given to the matter by any other judge.

What would have been the outcome had the hearing taken place before Chelameswar? Would the CJI have been taken as an accused and an inquiry set up against him? Would it lead to his impeachment and Justice Chelameswar’s elevation as the CJI? We can only guess, as Chelameswar did not hear the matter in view of the administrative order passed by the CJI and was placed before another bench. The CJI has been accused of being a ‘judge in his own cause’ by determining the bench, which would hear the matter where the CJI was himself accused of wrongdoing. If that were the case, would it not have been expedient for Chelameswar to recuse himself from the matter, since he would be a direct beneficiary of possible impeachment/resignation of CJI Dipak Misra?

The war that broke out was far uglier. A lot of meanings are being ascribed to the press conference by the senior-most judges of the Supreme Court. Circles have it that this could be the last bet for Chelameswar to be the CJI since he retires on 22 June this year i.e., before CJI Misra’s retirement on 2 October this year. The meeting between Communist Party of India (Marxist) leader D Raja and Chelameswar shortly after the press conference has also attached political meanings to it. But, was the political context not a constant undertone? On being questioned about the issue by the press, Justice Gogoi said it pertained to the death of Judge Loya.

An explosive article in a magazine calling the death of Judge Loya, who died of heart attack, mysterious and linking it to the Sohrabuddin case being heard by him, created a lot of buzz. Naturally so, since the present Bharatiya Janata Party chief was one of the accused in the case. Without any further inquiry, or without consulting the family of Judge Loya, allegations were hurled at various judges over the death of Judge Loya. This was done at the expense of the high repute of the said judge, who cannot come out in the open and defend himself.

The judges of the Supreme Court are concerned about the ‘mysterious’ death of Judge Loya, which occurred in December 2014, i.e., at least three years ago, and for which no complaint has been lodged by his family. On the contrary, his son made it a point that the family had no doubts about Judge Loya dying of a cardiac arrest and there was nothing clandestine about it. More importantly, why would the Supreme Court even entertain a plea of ordering an enquiry in Judge Loya’s death? Would alternative remedy not go for a toss then, which would be the most natural reason for not entertaining such a plea except that the man sought to be dragged to trial is a top functionary of the party in power? How does this remain apolitical then? Does the camouflage of the ‘rule of law’ not get exposed?

The tone of the letter made public by the senior-most Judges is also somewhat peculiar. The letter shockingly alleges that matters of grave importance are being handed over to benches of ‘preferences’ by the CJI. This not only casts aspersions on the CJI but also on the other honourable judges of the Supreme Court who are allotted these matters. When the letter highlights that all judges of the Supreme Court are equal, is it not inherent that the matters of whatsoever magnitude can be listed before any judge?

The letter demands that the CJI shall rectify the situation by taking appropriate steps “in consultation with other members of the Collegium”. The collegium, which is neither a part of the Constitution nor has any transparency or accountability in the words of Justice Chelameswar himself (NJAC judgment), is being granted a status of consultant for the CJI. Did the four senior-most judges consult the judges, who were allotted these cases, before writing or making the letter public, where aspersions are cast on them? Are they not required to be consulted? Does it not become a mockery of the Supreme Court?

The most saddening part of the event is the low the judiciary would now face in daily course. If the four top judges of the Supreme Court believe that placing matters before a certain judge has led to a particular outcome, it would be perfectly all right for a litigant to ask about the approach of a judge before the hearing. The ‘holier than thou’ image of the judiciary is tarnished and, perhaps, forever. There can possibly be no cover up for this.

The top four judges, if at all, felt that they had a ‘duty towards the nation’, they could have sorted it out by many means available to them. They chose the way possibly right for themselves, but certainly not for the institution. I say so as part of the system and that it does not take away anything from these judges. I would have wished it didn’t happen this way. If there is a wrongdoing by anyone, it must be noted, highlighted, rectified and the wrongdoer be punished, but not at the cost of the institution. This would require a few of Justice H R Khannas for the faith of the citizens to be restored in the institution of the judiciary.