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Tussle creates history: 4 SC judges raises question mark on credibility on judicial system

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(G.N.S) Dt. 12
New Delhi
Democracy in India is at stake, said four senior Supreme Court judges today as they went public with complaints against the Chief Justice of India, Dipak Misra. The rebel judges – the four most-senior at the top court after the Chief Justice – said that “things are not in order” with what they described as “the administration of the Supreme Court”. The four judges today released to the press their seven-page letter to the Chief Justice written nearly two months ago, which listed their concerns surrounding the state of the judiciary and the role of the Chief Justice of India.
Some legal luminaries also said the turn of events had raised a question mark about the credibility of the judicial system. The decision of four senior-most judges of the Supreme Court to hold a press conference was on Friday termed as “unprecedented” by the legal fraternity, with some experts terming it as “shocking” while some others saying there could have been some compelling reasons for such a move.
Some legal luminaries also said the turn of events had raised a question mark about the credibility of the judicial system.
Senior advocates K.T.S. Tulsi, former union law ministers Salman Khurshid and Ashwini Kumar, former judges Justice R.S. Sodhi and Justice Mukul Mudgal expressed concern over the unprecedented press conference, while senior advocate Indira Jaising welcomed the move and congratulated the four judges.
The BJP leader and Rajya Sabha MP Subramanian Swamy said when such judges come out to do a press conference, it is necessary to take them seriously rather than finding fault.
Mr. Swamy said the Prime Minister should take an initiative and contact the Chief Justice and the four judges to resolve the whole situation through the process of consultation.
However, Justice Sodhi questioned the move of the top judges approaching the media and asked how they can administer the Supreme Court through press conferences.
“I am so pained at the outcome of the things… It is appalling. How can you administer Supreme Court by press conference. Are you going to hold a referendum and ask people what is right and wrong,” Justice Sodhi said.
Justice Mudgal said the four senior-most judges were bringing the issues to light which according to them was necessary to be brought to the public notice.
He said they must have had compelling reasons to go public and “they are not publicity hungry judges and do not crave for unnecessary publicity”.
Terming the presser as “a welcome step”, senior lawyer Indira Jaising congratulated the four judges for the “bold move” and said: “As they said they are discharging a debt to history, namely to let the nation know that something is going wrong and needs to be corrected.”
She said the intention of the press meet was “to build a consensus to owe a debt of duty to the institution as a whole and ensure that this institution survives for you and me.”
Advocate Prashant Bhushan also termed the event as unprecedented and said the judges took extreme decision to hold press conference under compelling circumstances.
“These four judges are very responsible. If they are doing this, the situation would have definitely gone out of control. They said the CJI was misusing his administrative powers to allot all cases,” Advocate Bhushan said.
Senior lawyer K.T.S. Tulsi said the step was quite shocking and one had never thought that “things would come such far compelling the four senior-most judges to adopt this course of action.”
“I am sure they (four judges) have exhausted all other remedies. One could see pain on their faces while they were speaking. The whole matter is with respect to judicial propriety. The question is of natural justice. Whatever is the law for common man, it is applied much more rigorously as far as judges are concerned because they must always be above suspicion,” Lawyer Tulsi said.
Similarly, former union minister and senior advocate Khurshid said there were some deep differences among the judges about how the apex court should function, terming it as a matter of anguish.
“I can only hope that conversation among the judges will not snap and will continue and that with accommodation and logic it will be settled. It has come too far,” Mr. Khurshid said.
Former Law Minister Ashwini Kumar said it was “a sad day for Indian democracy.”
“This press conference is a strike at the root of the institutional integrity of the higher judiciary. It has raised question marks about the credibility of the system as such and has directly cast aspersions at the head of the Indian judiciary.
“I think the people of this country who have had highest regard to the highest judiciary will now be forced to think aloud as to whether we have gone gravely wrong somewhere,” he said.
Accompanied by three senior judges Justices Ranjan Gogoi, M.B. Lokur and Kurian Joseph, Justice J Chelameswar himself said “this is an extraordinary event in the history of any nation, more particularly this nation and an extraordinary event in the institution of judiciary … It is with no pleasure that we are compelled to call this press conference.
“But sometimes administration of the Supreme Court is not in order and many things which are less than desirable have happened in the last few months.”
Brief introductions of four justices
In a move unprecedented in the history of Indian judiciary, four sitting members of the Supreme Court Collegium met mediapersons in New Delhi to signal their “anguish and concern” over certain procedural matters as decided by Chief Justice of India Dipak Mishra.
Justice J. Chelameswar, flanked by Justices Ranjan Gogoi, Madan Lokur and Kurian Joseph, addressed the media at Justice Chelameswar’s residence a little after 12.00 pm on Friday. Here are short profiles of these four senior Justices.
Justice Chelameshwar
Justice Jasti Chelameswar, who was elevated to the Supreme Court in 2011, has been involved in some high-profile judgements including the one which said that Section 66A of the Information Technology Act was unconstitutional. He was also a member of the three-judge Bench which confirmed that the Aadhaar card is not compulsory and that officials who insist on them will be taken to task.
In October 2016, he was in the spotlight when he became the lone dissenting judge on the five-judge Constitution Bench led by Justice J.S. Khehar, which scrapped the National Judicial Appointments Commission (NJAC) law passed by Parliament. In the following month, he chose to opt out of the Supreme Court collegium meetings till the highest judiciary ushers in transparency.
Hailing from Krishna District of Andhra Pradesh, Justice Chelameshwar graduated in Law from Andhra University, Visakhapatnam in 1976, according to his official Supreme Court profile. He served as the Chief Justice of Gauhati High Court and Chief Justice of Kerala before he was elevated as Judge, Supreme Court of India on October 10, 2011.
Justice Ranjan Gogoi
Justice Ranjan Gogoi, who hails from Assam, had been at the Gauhati High Court before being transferred to the Punjab and Haryana High Court on September 9, 2010. He was appointed as Chief Justice of the Punjab and Haryana High Court in 2011. He was elevated as a Supreme Court Judge in April 2012. Justice Gogoi recused himself from hearing the plea filed by a lawyers’ group against the proposed elevation of Justice J.S. Khehar as Chief Justice of India in December 2016. Justice Gogoi also led the Bench which heard the sworn statement of former CBI officer in the Rajiv Gandhi assassination case.
Justice Kurian Joseph
Born on November 30, 1953, Justice Joseph began his legal practice in 1979 in the High Court of Kerala. He was elevated as a Kerala High Court Judge on July 12, 2000, according to the Supreme Court website. Having served twice as the Acting Chief Justice of the High Court of Kerala, he was elevated as Supreme Court Judge March 8, 2013. Justice Joseph is due to retire on November 30, 2018. “Judges do not depend on their Chief Justice of India for courage to serve without ‘fear or favour’, they derive it from the Constitution of India,” Justice Kurian Joseph corrected a 92-year-old litigant in an open courtroom at the Supreme Court in 2014.
Justice Madan Lokur
Justice Madan Bhimrao Lokur hails from Delhi. He practised in the Supreme Court and the Delhi High Court as an advocate before being appointed as the Additional Solicitor-General of India in July 1998 and continued till he was appointed as an Additional Judge of the Delhi High Court in February 1999. He was made a Permanent Judge of that High Court in July 1999 and was appointed as the Chief Justice of the Gauhati High Court on June 24, 2010.
Following that, Justice Lokur was transferred as the Chief Justice of the Andhra Pradesh High Court, a post he held till he was recommended by the collegium of judges to be elevated to the Supreme Court in 2012. The recommendation followed Justice Dalveer Bhandari’s resignation from the SC after he was elected as a judge in the International Court of Justice.
Submits letter to CJI in full text
Dear Chief Justice,
It is with great anguish and concern that we have thought it proper to address this letter to you so as to highlight certain judicial orders passed by this Court which has adversely affected the overall functioning of the justice delivery system and the independence of the High Courts besides impacting the administrative functioning of the offices of the Hon. Chief Justice of India.
From the date of establishment of the three Chartered High Courts of Calcutta, Bombay and Madras, certain traditions and conventions in the judicial administration have been well established. The traditions were embraced by this Court which came into existence almost essentially after the abovementioned Chartered High Courts. These traditions have their roots in the Anglo-Saxon jurisprudence and practice.
One of the well-settled principles is that the Chief Justice is the master of the roster with the privilege to determine the roster, necessity in multi-numbered courts for an orderly transaction of business and appropriate arrangements with respect to matters with which members/Bench of this Court (as the case may be) is required to deal with which case or class of cases is to be made. The convention of recognising the privilege of the Chief Justice to form the roster and assign cases to different members/Benches of the Court is a convention devised for a disciplined and efficient transaction of business of the Court, but not a recognition of any superior authority, legal or factual, of the Chief Justice over his colleagues. It is too well-settled in jurisprudence that the Chief Justice is only the first among equals — nothing more or nothing less.
In the matter of the determination of the roster, there are well-settled and time-honoured conventions guiding the Chief Justice, be the conventions dealing with the strength of the Bench which is required to deal with the particular case or the composition thereof.
A necessary corollary to the above mentioned principle is the members of any multi-numbered judicial body including this Court would not arrogate to themselves the authority to deal with and pronounce upon matters which ought to be heard by appropriate Benches, both composition-wise and strength-wise with due regard to the roster fixed.
Any departure from the above two rules would not only lead to unpleasant and undesirable consequences of creating doubt in the body politic about the integrity of the institution. Not to talk about the chaos that would result from such departure.
We are sorry to say that of late, the twin rules mentioned above have not been strictly adhered to. There have been instances where cases having far-reaching consequences for the nation and the institution had been assigned by the Chief Justice of this Court selectively to the Benches “of their preferences” without any rational basis for such assignment. This must be guarded against at all costs.
We are not mentioning details early to avoid embarrassing the institution but note that such departures have already damaged the image of this institution to some extent.
In the above context, we deem it proper to address you presently with regard to the order dated 27.10.2017 in R.P. Luthra vs. Union of India, the effect that there should be no further delay in finalising the Memorandum of Procedure in the larger public interest. When the Memorandum of Procedure was a subject matter of a decision of a Constitution Bench of this Court in Supreme Court Advocates-on-Record Association And Anr. vs. Union of India [(2016) 5 SCC1] it is difficult to understand as to how any other Bench could have dealt with the matter.
The above apart, subsequent to the decision of the Constitution Bench, detailed discussions were held by the Collegium of five judges (including yourself) and the Memorandum of Procedure was finalised and sent by the then Honourable Chief Justice of India to the government in March 2017. The Government of India has not responded to the communication and in view of this silence it must be taken that the Memorandum of Procedure as finalised by the Collegium has been accepted by the Government on the basis of the order of this Court in Supreme Court Advocates-on-Record Association (Supra). There was, therefore, no occasion for the Bench to make any observation with regard to the finalisation of the Memorandum of Procedure or that that issue cannot linger on for an indefinite period.
On July 4, 2017, a Bench of seven judges of this Court decided In Re, Hon’ble Shri Justice C.S. Karnan [(2017) 1 SCC 1]. In that decision (referred to in R.P. Luthra), two of us observed that there is a need to revisit the process of appointment of judges and to set up a mechanism for corrective measures other than impeachment. No observation was made by any of the seven learned judges with regard to the Memorandum of Procedure.
Any issue with regard to the Memorandum of Procedure should be discussed in the Chief Justices conference and by the full Court. Such a matter of grave importance, if at all required to be taken on the judicial side, should be dealt with by none other than a Constitution Bench.
The above development must be viewed with serious concern. The Honourable Chief Justice of India is duty bound to rectify the situation and take appropriate remedial measures after a full discussion with the other members of the Collegium and at a later stage, if required, with either Hon’ble Judges of this Court.
Once the issue arising from the order dated 27.10.2017 in R.P. Luthra vs. Union of India, mentioned above, is adequately addressed by you and if it becomes so necessary, we will apprise you specifically of the other judicial orders passed by this Court which would require to be similarly dealt with.

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