A lot needs to be said about the historic day when four senior-most judges of the Supreme Court on January 12 addressed the fourth pillar of democracy - the media - to convey that the third pillar - the judiciary - is currently facing immense threat. The only time India faced such a crisis was during the Emergency. As the legal reporter for India Today TV, I have been asked by many people about what led to the day's events. How did things come to a head? And where will this lead to in the coming times?
I will try and answer them in this piece:
It's true that in the past few months, the judicial corridors have been abuzz about how power is increasingly being concentrated with the CJI court and the manner in which the administrative powers are exercised by the CJI.
About hundred cases are listed before the CJI on any given day. Many judges have spoken about this in hushed tones, on how it is improper for the CJI to overturn the orders of the other benches because there is no intra court appeal in the Supreme Court.
As someone who spends every day at the Supreme Court to report stories, I will admit, I have felt inhibited bringing to light some of these issues which need to be discussed in the open. The order of two-judge bench cannot be overturned by a three-judge bench unless the two-judge bench has referred the matter to a larger bench. These are some of the grievances which have been criticised.
The issue of impropriety, however, is more serious:
It is repeatedly pointed in the seven-page letter circulated by the judges on Friday that the way the CJI exercises his "administrative powers" is arbitrary. This phrase needs to be broken down and looked at.
Administrative powers in the Supreme Court means how cases are allocated to benches. It's extremely crucial that the matters are allocated according to the roster and not haphazardly. The allegation made implies that the CJI is not following the rules and is allocating matters to a particular bench to get a predictable outcome.
A crucial unsaid truth about the judiciary is that journalists and lawyers can always get a sense of the mood and inclination of judges.
Political leanings of judges, if any, are also widely spoken of, off the record. These things can't be said on public fora. A social closeness to a political person does not necessarily mean that the judge is not being objective while handling a case. But it is very important for the fate of the case as to in front of which bench it is listed. It is a crucial aspect in the process of deliverance of justice. It is not merely administrative in nature.
What led to the happenings of January 12 go back to events of November 10, 2017 when the seeds of the dissent were sown.
It was the day when the CJI overturned the order of Justice Chelameswar to refer the MCI scam to the bench of top five judges. An ugly scene broke out in the Supreme Court, with Prashant Bhushan openly alleging that the CJI was involved in corruption.
An angry Bhushan walked out of the court when he wasn't allowed to speak. An order was passed by the CJI bench reasserting that the Chief Justice of India is the master of the roster. Even to this day, sources say, justice Lokur and other judges of the Supreme Court met justice Chelameswar. Some statement was expected on that day too, however, the steam seemed to have fizzled out.
A few days later, the plea was referred to the bench of justice Arun Mishra. He was given this matter despite the fact that he was part of the five-judge bench which overturned the order of justice Chelameswar. Justice Misra was also very vocal about the conduct of Prashant Bhushan.
Some argued that the matter should have been referred to another bench in the spirit of fairness. As expected, justice Arun Mishra dismissed the plea of Prashant Bhushan and severely criticised his conduct. In a related petition, Rs 25 lakh was also imposed on Bhushan. The matter was settled then, but a hurricane began to brew.
Then came the plea seeking investigation into the allegedly mysterious death of judge BH Loya, who was presiding over the CBI court in the Sohrabuddin Sheikh fake encounter case. The matter was again referred to the bench of justice Arun Mishra. One of the petitioners in the Loya case came to me and informed that a senior lawyer backed out from the case by saying nothing was going to happen in the matter. It was during this conversation at 11.10am that a source informed me of the press conference.
Interestingly, while the press conference was taking place, the CJI court around 12 noon was informed of the developments. A whistle was sounded in the CJI court and the guards rushed in to escort the CJI out of the courtroom. The timing of this entire incident cannot be overlooked. The press conference took place during the working hours of the Supreme Court and the CJI had no clue about this development. The top four judges of the Supreme Court rose up at around 11am and headed to the residence of Justice Chelameswar.
Many legal experts today sound surprised with the developments of the day. They seem to have missed the frustration and the discontent brewing in the power corridors of the judiciary. The push and pull of the collegium is not something new. But when top four judges of the Supreme Court see no recourse but to address the media, we are indeed in for troubled times.
The disenchantment with the way top court is functioning is deep and pervasive. The underlying current is the interference of the executive with the judiciary. When top judges of the Supreme Court say that democracy is under threat, we must take it seriously. When media shy judges are compelled to address a mob of press and speak openly, imagine the discontent and the helplessness festering within.
The day shall go down in history when a clarion call was made for change and accountability. How it impacts the CJI and Parliament, the people of the country have a right to know and want an accountable judiciary.