Judges Versus Chief Justice Of India: What Was Said And Left Unsaid

The first, and hopefully the last, such press conference called by the four honourable judges (referred to as ‘the learned four’) of the Supreme Court (SC) of India has left many shell-shocked. An institution that is expected to interpret the law and resolve disputes was fighting in full media glare. Notwithstanding delays in administering justice and the accusation of over-reach, the apex court has always been admired widely both within and outside our country. When a friend messaged about this press conference, a hypothetical case in which six General Officer Commanding-In-Chief (GOC-in-C) disagree with the Army chief and call a similar press conference, came to mind. How would the people, government and media react then?

At the outset, I must state that this author is neither a lawyer by education nor a constitutional expert. This article, without casting aspersions on any individual or institution, seeks to analyse recent events and their impact.

The seven-page letter by the learned four judges to the Chief Justice of India (CJI) raises many key points.

First, “in the matter of the determination of the roster there are well-settled and time honoured conventions guiding the Chief Justice”. Further, the letter states that there have been cases with far-reaching consequences for the nation and institution that have been assigned by the CJI selectively to the ‘benches of preferences’.

The nation would have benefited if ‘the learned four’ had in writing stated what the well-settled and time-honoured conventions were that determine the roster and leave it to the country to decide if there was any breach. Further, are these conventions subject to change? Did every preceding CJI consistently follow them? Has technology been used to ensure transparency?

What was left unsaid but reported by the media nevertheless was the alleged unhappiness over the CJI’s allocation of the petition to Justice Arun Mishra for an independent probe into the allegedly mysterious death of Central Bureau of Investigation judge Brijgopal Loya.

By way of background, Judge Loya died of a heart attack in Nagpur on 1 December 2014. The Caravan magazine published a story, dated 20 November 2017, titled ‘A Family Breaks Its Silence: Shocking Details Emerge in Death of Judge Presiding Over Sohrabuddin Trial’. It was criticised and refuted by an article in the Indian Express.

Over a month later, on 4 January 2018, the Bombay Lawyers’ Association moved the Bombay High Court seeking an independent probe into the circumstances that led to Judge Loya’s death.

Last week, the CJI allocated the case to Justice Arun Mishra. At the 12 January hearing, senior advocates Dushyant Dave and Indira Jaising pleaded with the SC bench headed by Justice Mishra not to hear the case on Loya’s mysterious death as the matter was pending before the Bombay High Court. However, the bench said it will examine the case.

Questions - I

One, Judge Loya’s death became a public issue in November 2017, a good 34 months after he died.

Two, if the matter was before the Bombay High Court, why did journalist B R Lone and social activist and self-confessed Congress supporter Tehseen Poonawalla petition the SC?

Three, was the matter so urgent that it was to be heard within days of filing the petition?

Four, after filing the petition, why did advocates Jaising and Dave tell Justice Mishra that since the case was being heard by the Bombay High Court, there was no need for him to hear the case?

Now, would advocates Jaising and Dave have changed their stance if a judge other than Mishra was hearing the case?

One of the arguments being made is that a case of such importance should be heard by senior judges. Can the votaries of this argument make public a listing of similar cases, heard by senior judges from 2012-2017, where seniority was given preference by the then CJI?

A Times of India report on 15 January 2018 gives details of super-sensitive cases being given to junior SC judges for the last 20 years.

According to a Hindustan Times report of 14 January, the Supreme Court Bar Association (SCBA), an apex body of lawyers practising in the top court, agreed with ’the learned four’ to reassign the petition seeking further probe into the death of Judge Loya to another bench.

Does the Constitution give the SCBA the power to suggest such changes?

More interesting is the SCBA resolution of 13 January 2018. It says “all PIL matters including pending Public Interest Litigation should be either taken up by the Hon CJI, or if he to assign it to any other bench, it should be assigned to the judges in the collegiums”.

Questions - II

One, does SCBA consider only the collegiums to be competent enough to hear PILs? It is akin to saying that because women judges are incompetent there have been only six since 1950.

Two, why are PILs so important for the respected SCBA to resolve as it did? Did the instrument of PIL even exist when the founding fathers wrote the Constitution?

What is left unsaid is that PILs have unintentionally made the judiciary an alternate power centre. After all, the SC has devoted time to ban liquor on highways, dance bars, disclosure of names of big-loan defaulters, use of pellet guns in Jammu and Kashmir, model rules for states to implement food security, explosion of non-governmental organisations (NGOs), dahi handi, Board of Control for Cricket in India (BCCI), adulteration at fuel pumps, increasing frequency of Delhi Metro trains, framing of a cogent and clear national security policy, deportation of illegal immigrants from Myanmar and so on.

The most interesting part is that judge Loya’s family has not petitioned the courts. A 14 January Indian Express report quotes Judge Loya’s son Anuj, “With tears in his eyes, he also urged NGOs and politicians to stop ‘harassing’ his family. ‘We faced some pressure from politicians and NGOs. We don’t want to name anyone, but please excuse my family from continuously asking about my father’s death’.”

As I write this, Justice Loya’s son has again addressed a presser, requesting people to let the family remain in peace and that there was no foul play as alleged.

Second, the letter has raised many points on the Memorandum of Procedure (MOP). It is a complicated subject, hence draws limited attention.

‘The learned four’ state that the draft MOP was sent to the government in March 2017. In view of the silence it must be taken that the MOP finalised by the collegium is accepted by the Government of India based on the order of this court in ‘Supreme Court Advocates-on-record association’ Supra.

Can constitutional experts enlighten, with reasons, whether the government’s silence on this matter can be construed as acceptance of the implications of judiciary-executive relations?

Third, can judges be penalised other than by impeachment?

‘The leaned four’ wrote that on 4 July 2017 a bench of seven judges of this Court decided In Re, Hon Justice Shri C S Karnan (2017 1 SCC 1) two of us observed there is a need to revisit the process of appointment of judges and set up a mechanism for corrective measures other than impeachment.

Currently, “The procedure relating to the removal of a judge of the Supreme Court is regulated by the Judges Inquiry Act, 1968, by the process of impeachment. There are two grounds for removal - proved misbehaviour or incapacity. A judge of the Supreme Court can be removed from his office by an order of the President. The President can issue the removal order after an address by the Parliament, supported by a special majority of each House of Parliament (that is, a majority of the total membership of that House and a majority of not less than two thirds of the members of that house present and voting.” Read more.

“So far, no judge of the Supreme Court has been impeached. The only case where an impeachment motion was initiated and the Inquiry Committee found the judge guilty was of Justice V Ramaswami of the Supreme Court (1991-1993).”

This motion was defeated in the Lok Sabha due to absenteeism of Congress Members of Parliament. The lawyer who argued his case in the Lok Sabha was Kapil Sibal. Read the story here.

Can the two judges spell out the mechanism for corrective measures? Who is going to implement these measures? What are the checks and balances? Also, can such measures be construed to be an infringement on the right of Parliament to remove a judge as discussed above?

Does the Constitution empower a collegium to amend the process of appointment of judges and set up corrective measures?

These matters require a broader debate and should not be left to collegiums or judges alone.

When the SC recently declared invalid all orders passed by Justice C S Karnan, senior advocate Indira Jaising had said that the SC’s order was constitutionally invalid.

“Removal of judicial function is like removing someone as a judge and the Supreme Court does not have the power to do that. It’s only Parliament that can remove a judge. This order is not Constitutionally valid,” she told The News Minute.

Can the SC publicly justify the constitutional proprietary of its action in jailing Justice Karnan?

Those who dislike the Bharatiya Janata Party want to ensure it does not return to power in 2019. How can Team (Narendra) Modi be stopped?

One, by ensuring that the Supreme Court does not take up hearing of the Ayodhya case.

Two, by weakening Modi's team.

Three, divide Hindus by caste and prevent consolidation of the Hindu vote.

Nearly seven years after the Allahabad High Court verdict of 2010, which was stayed by the apex court in May 2011, the current CJI decided that daily hearings of the Ayodhya case would be held from 5 December 2017.

A specially constituted bench of Chief Justice Dipak Misra and Justices Ashok Bhushan and Abdul Nazeer have begun hearing the case.

Appearing before the Sunni Waqf Board, Kapil Sibal made a plea, rejected by the court, to postpone the hearing to July 2019, i.e., after the Lok Sabha elections. He argued that the court’s judgement in the present case is bound to have political and social ramifications. The next hearing has been fixed for 8 February.

Since it is under the current CJI that the SC has decided daily hearings, the current play-out is being perceived to be a backdoor attempt to derail the case. Prakash Karat strengthened this perception by saying, “There is substance in these charges. If you look back at the important cases in SC like Ayodhya, Aadhar - none of these 4 senior judges are on the bench.”

If SC continued with daily hearings, the matter would be resolved sooner than later. If the SC order went in favour of the Hindus and temple construction starts, there would be a consolidation of Hindu votes as was seen in 2014 and the 1990s. Thus, the BJP would stand a high change of re-election notwithstanding low growth and alleged agricultural distress.

The timing of the petition on Judge Loya’s death seems to indicate an attempt to tie Amit Shah down in legal battles. An arrest or travel restrictions could weaken the BJP considerably. Simply put, the strategy is to delay the Ayodhya verdict and keep Amit Shah busy in courts.

Having tasted some success in Gujarat, the Congress is back to its old formula of dividing the Hindu society by caste. It was a time-tested route to power.

The Times of India quotes ‘the learned four’, “Unless this institution is preserved, democracy will not survive in this country.”

The executive, judiciary and legislature must realise that democracy has taken firm roots because that is what the people want. When Indira Gandhi declared the Emergency and institutions capitulated, it was the people of India who voted her out of office.

The people of India believe in democracy because of the country’s dharmic traditions and not because of a Westminster form of government and “traditions that have their roots in Anglo Saxon jurisprudence and practice”.

I’m glad that ‘the learned four’ went public. Since the SC has begun to impact our day-to-day lives, it is important for the public to be involved and subject its working to closer scrutiny.

Having said that, the country’s concerns are well-articulated in this Mint editorial, “This crisis is an opportunity for deep and long-lasting reforms. With its unique system of appointments, the Supreme Court stands apart among major democracies in its lack of accountability — something that runs counter to the fundamental norm of a system of interlocking checks and balances among the arms of the state. But will the judges who can’t unite on matters of everyday administration arrive at a consensus on difficult institutional reforms?”

As a long admirer of India’s judiciary, the author reiterates intent to promote healthy debate, transparency and not make accusations against any individual or institution.

This conversation might help reduce judicial delays and time taken for enforcement of contracts, such that it benefits the common man and improves the World Bank's rankings on ease of doing business.