No matter which side you are on, January 12, 2018 will go down as a significant date in the history of the Indian Judiciary, and more specifically, the Supreme Court.
The decision of four of the senior most judges to come out publicly in their criticism of the functioning of the apex court only confirms the trouble that has been slowly brewing within the body responsible for making judicial appointments.
What makes these public revelations all the more surprising is the fact that historically, the working of the highest echelons of the judiciary has been shrouded in mystery. The Judges Press Conference held today has bucked that trend, perhaps at the cost of diminishing the image of the judiciary in the eyes of the common man.
Having said that, the way the apex court has functioned in the recent past has been far from perfect; today’s events has put it beyond doubt that all is not well at the very top of the judiciary. However, the reasons behind what is being termed as a “judicial crisis” can hardly be described as pellucid.
Precious little was revealed by Justices J Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph at the press conference held today in order to express their displeasure with the way the apex court has been functioning under the tenure of Chief Justice Dipak Misra. The letter addressed to CJI Misra, however, made things clearer, even if only slightly so.
In a nutshell, the letter cites Chief Justice Misra’s listing of matters of constitutional importance before benches excluding the senior most judges, as the main gripe of the four judges. Specifically, the case regarding the Memorandum of Procedure is given as an example.
However, it is becoming more and more clear that the tipping point was the listing of the petitions seeking an investigation into the death of Special CBI judge BH Loya. Justice Gogoi’s revelation of the same when asked by members of the press is perhaps the most important part of today’s presser.
In the meanwhile, despite fervent pleas made by Senior Advocates Dushyant Dave and Indira Jaising – who highlighted that a similar petition was being heard by the Bombay High Court – the Supreme Court decided that it would hear the case, as it “raises serious questions”. The fact that this matter has been listed before the relatively junior Justices Arun Mishra and Mohan M Shantanagoudar, has perhaps rubbed the quartet of senior most judges the wrong way.
This is not the first time that Chief Justice Misra has courted controversy in the recent past. The listing of the petitions filed by Kamini Jaiswal and Campaign for Judicial Accountability and Reforms (CJAR) in what we have come to know as the “medical college bribery case” before judges who were directly involved with the verdicts granting medical colleges permission to operate raised a few eyebrows, to say the least. That time around, Justice Chelameswar had issued notice in the matter consequent upon a mentioning by Dave, before CJI Misra interfered and stated in no uncertain terms that he is the master of the roster.
Though this aspect has been acknowledged by the judges in their dissenting letter, it is also pointed out that it has been a convention of the Court to list important matters before benches comprising senior judges. And it is the failure of the CJI to do so that has prompted the judges to respond in such a way.
With talk of impeachment and resignation doing the rounds, and political mileage being milked out of the situation, the question remains as to whether the manner in which the four judges chose to express their dissatisfaction stands the test of judicial propriety.
Questions have also been raised regarding the form of “dissent” employed by the four judges. The argument is that holding a press conference was a little over-the-top and unbecoming of Supreme Court judges of their stature.
A larger question to be asked is what needs to be done when attempts to address issues plaguing the judiciary via conventional methods bear no fruit? Justice Chelameswar & co may perhaps defend their actions in the light of the fact that CJI Misra did not pay heed to the problems raised.
While crying ourselves hoarse over the opaqueness with which the Collegium operates, can we, at the same time, criticize them for attempting to be transparent about how the institution is functioning? Would not an acknowledgment of the institution’s flaws and subsequent attempts to repair the same only raise its stock among the public?
Whatever be the answers, today’s chain of events marks a departure from the Supreme Court’s stance of keeping its internal workings to itself. A culture of Judicial Omerta, if you will, has been historically followed by the Court, and as argued here, the jury is out on whether such a practice actually achieves anything.
In the end, it all falls down to the image of the judiciary, an institution widely regarded as the last bastion of governance. The upcoming days will determine what kind of institution the Supreme Court wants to be, and how history will judge the four judges who chose to stand for what they believed in.
For now, questions are all that we have.