Supreme Court judges versus CJI Dipak Misra: Reactions of senior lawyers and judges
While justices Chelameswar, Lokur, Gogoi and Joseph have gone public with their issues, the house seems divided on the matter.
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The press conference by top justices of the Supreme Court, excluding the CJI - justices J Chelameswar, Ranjan Gogoi, Madan B lokur and Kurian Joseph - and the letter made public by the foursome, addressed to chief justice Dipak Misra, have opened the veritable Pandora’s Box of reactions and opinions within the judicial and legal sector.
While many have breathed a sigh of relief that none other than the senior-most judges in the court have publicly stated their grievances against the CJI, indicating the problems within the Supreme Court, especially in the manner the administrative duties have been discharged, others are visibly upset at the SC shown in “poor light”, and the fault lines in the judiciary now made open to all to look upon.
We met CJI with a specific request which unfortunately couldn't convince him that we were right therefore, we were left with no choice except to communicate it to the nation that please take care of the institution: Justice J.Chelameswar-ANI— Live Law (@LiveLawIndia) January 12, 2018
While justices SA Bobde and L Nageswara have also visited justice Chelameswar, ostensibly in a show of solidarity, there are others who haven’t yet, possibly waiting for CJI Misra to hear the matter in his own court. It is important to lay out that voices have been raised both for and against the four “dissenting” justices, and it would do well to take a quick look at who’s said what, so far.
In praise of the foursome
Well known names in the advocacy circle, such as Prashant Bhushan, Dushyant Dave, Indira Jaising, among others, have strongly supported the four justices led by justice Chelameswar, but also including justice Gogoi, who’s the next in line to be CJI, after Dipak Misra. While Indira Jaising was herself present at the gathering meant for the press, Dave and Bhushan had aired similar grievances in their respective capacities on previous occasions.
Must read: Outstanding piece by Dushyant Dave on how the CJI is abusing his powers as master of roster to allocate important& politically sensitive cases to hand picked benches selected in a manner to achieve a predetermined result. Is eroding public faithhttps://t.co/WHYBYQmFRr— Prashant Bhushan (@pbhushan1) January 10, 2018
Indira Jaising cuts straight to the heart of it- "Is there interference by the executive with the judiciary?" Uproar after 4 top #judges go public with their rebellion against the Chief Justice of India. #SCJudgesMutiny— Sayoni Aiyar (@sayoniaiyar) January 12, 2018
While Dave has recently written a strongly worded piece on the issue of the “master of the roster”, it was none other than Bhushan on whose PIL the matter came up for hearing, and was, in a manner some would call questionable, transferred to the court of the CJI. Then too the visible difference between the CJI and justice Chelameswar was evident, and that episode proved to be a precursor to today’s explosive events.
Senior advocate KTS Tulsi, former law ministers in the UPA era Salman Khurshid and Ashwini Kumar, justice Mukul Mudgal have expressed concern about the whole matter, with justice Mudgal saying that the four judges must have had "compelling reasons" for going public with their grievances.
KTS Tulsi said: "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."
Feel very disturbed over the issue, this should not have happened, but it has and there might be strong reasons for them. Consequence would be it would create apprehensions in minds of ppl: Justice(Retd) AK Ganguly on press conference by four Supreme Court judges pic.twitter.com/z3KDkLKsqb— ANI (@ANI) January 12, 2018
These are very senior judges & come only after CJI. They wouldn't have taken the step without thinking. If it has fallen upon them to take action, it's up to us to understand what led to that: Shrihari Aney, former Attorney General on allegations made by 4 #SupremeCourt judges pic.twitter.com/dp6cPWyFOL— ANI (@ANI) January 12, 2018
In addition, former justice of the Supreme Court, AK Ganguly, has said he's feeling "disturbed" over the issues raised, and that the judges must have had "strong reasons" for calling the press conference. Former attorney general Shrihari Aney, similarly opined, that senior judges "wouldn't have taken the matter without thinking", and we need to understand "what led to that".
Noted SC advocate Rebecca John on Facebook has a strong reaction to what she calls the "politically responses" to something clearly "unprecedented". John says: "I find these politically correct responses, to what is clearly an unprecedented crisis, quite tiresome. I too wish it hadn't come to this. I wish, they could have set their house in order by talking to each other and taking correctional measures. I wish there was no press conference. But sometimes you need to come out, when nothing else works. A democracy functions in open spaces, not behind opaque doors. And the problem facing the judiciary today is very, very serious. It's about institutional integrity. Recognise it."
Young lawyers like Raman Chima, part of the members of counsels for the petitioners against Aadhaar, have also come out in full support of the senior judges, questioning why the chief justice is consulting the attorney general of India, a government office-bearer, to decide upon the course of action. In fact, this is in contravention of the spirit of the independent judiciary, and that CJI Misra’s “proximity” to the AGI rather than his own colleagues in the highest court has been frowned upon.
So it appears official - the CJI has a better relationship with the Attorney General of India compared to his senior colleague justices. Or he already regards him as the 32nd justice of the Supreme Court. https://t.co/qIDqWiH2TP— Raman Chima (@tame_wildcard) January 12, 2018
Against the mutiny
However, established voices have been raised against the show of dissent today. For example, Soli Sorabjee, former attorney general of India, has criticised the four judges, saying he’s disappointed, this is unbecoming of them, and that the matter wasn’t a big one, could have been decided internally.
Noted Indian public prosecutor Ujjwal Nikam has used harsher words for castigation, saying this is a “black day” for Indian judiciary and democracy, because the airing of differences has shaken the trust in the institution itself. Similarly, former SC justice Santosh Hegde has said that the manner in which the four judges are trying to find a solution is unfair.
'The method by which they are trying to find a solution to the problem is very unfair’, says former Supreme Court Justice Santosh Hegde on SC judges’ PCWatch more videos at https://t.co/NounxnP7mg#ITVideo pic.twitter.com/7oS1blePuW— India Today (@IndiaToday) January 12, 2018
Former Union law minister Ashwini Kumar said: "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." Similarly, former Union law minister Hansraj Bhardwaj called this a "loss of prestige for the entire institution".
It's the loss of prestige of the entire institution. If you lose public's trust what remains? Judiciary must remain pillar of democracy. It's responsibility of Law Minister to see how it functions: Hansraj Bhardwaj, former Union Law Minister on allegations made by the 4 SC judges pic.twitter.com/kcnn9DoNX0— ANI (@ANI) January 12, 2018
Another retired justice RS Sodhi said the issues are insignificant since it’s about discharge of administrative duties. He called the four judges “childish and immature”, adding "this trade unionism is wrong”, and that the four “should be impeached”.
Issues don't matter. It is their complaint on administrative matter. They are only 4, there are 23 others. 4 get together and show the Chief Justice in a poor light. It is immature & childish behaviour: Justice R S Sodhi (retd) on press conference pic.twitter.com/jGFOtMCp4d— ANI (@ANI) January 12, 2018
I think all 4 judges should be impeached, they have no business to sit there and deliver verdicts anymore. This trade unionism is wrong. Democracy in danger is not for them to say, we have parliament, courts, police functioning: Justice R.S. Sodhi (Retd) pic.twitter.com/bBFW8v5rkv— ANI (@ANI) January 12, 2018
Many in the legal circles are still weighing their options, judicial protocols, and other points to consider, before airing their views. However, it must be noted that justice Ranjan Gogoi has been appreciated especially for somewhat imperiling his own clean ascension to the post of the CJI after Dipak Misra by going public with the issues at hand.
Even though the Centre has decided to stay away from the issue, West Bengal chief minister Mamata Banerjee tweeted her response to the justices meeting the press, saying she's "deeply anguished" about the development and that the "extreme interference by the central government" in matters of the judiciary is "dangerous for democracy".
We are deeply anguished with the developments today about the Supreme Court. What we are getting from the statement of the four senior Hon’ble Judges of Supreme Court about the affairs of the Court makes us really sad as citizens. 1/2— Mamata Banerjee (@MamataOfficial) January 12, 2018
Judiciary and Media are the pillars of democracy. Extreme interference of Central Government with Judiciary is dangerous for democracy. 2/2— Mamata Banerjee (@MamataOfficial) January 12, 2018
While the Indian National Congress has unanimously echoed the four dissenting justices, even considering a move in Parliament to "impeach the CJI", the BJP is a house divided. So far, Centre has distanced itself from the crisis, though BJP MP Subramanian Swamy has said that this is a serious matter, and the four are men of integrity, so PM should intervene to settle the issue.
‘PM should offer his services to find a way’, says senior BJP leader Subramanian Swamy on SC judges’ press conferenceClick here for more videos:https://t.co/NounxnP7mg#ITVideo pic.twitter.com/YJ14IkVbLt— India Today (@IndiaToday) January 12, 2018
On his part, as a lawyer, Congress leader Salman Khurshid has said this is a matter of “anguish and pain”, which must be given adequate importance. Shashi Tharoor has called the four the “finest minds” in the country.
These are some of the finest minds on the Court. Must listen! https://t.co/2GIDThmJRm— Shashi Tharoor (@ShashiTharoor) January 12, 2018
There has a bit of controversy over CPI leader and member of Parliament D Raja's presence at Justice Chelameswar's residence today during the press conference, giving the matter a slight political colour, and some sections of the media latching on this to split the judiciary along a Centre versus Opposition line. While that's clearly misleading, since questions at stake here are much larger than mere political affiliation, Raja himself has given his unequivocal support to Justice Chelameswar.
Have known him for a long time. When I came to know of the extraordinary step taken by him & other judges, I thought must meet him. Not giving it political colour. These are concerns for everybody, it's about future of country & democracy: D Raja on meeting Justice #Chelameshwar pic.twitter.com/yHyMxz8KcD— ANI (@ANI) January 12, 2018
Gravity of the grievances
Evidently, the autonomy of the judiciary itself has been called into question by the four dissenting judges, directly pointing a finger at the seat of the chief justice. Could this have been “sorted out”, as luminaries like Soli Sorabjee, is saying internally?
The fact that the four judges had tried that option first, sending the letter to CJI Misra earlier, trying to bring about the desirable change and rectify what they saw as problematic, must be noted before jumping into uncharitable conclusions.
The question about the master of the roster has been raised before, quite a few times. What assignation of benches to allegedly favourable ends does is not only imperil the foundations of the judiciary, tainting its independence, but also democracy, for then all citizens are not treated equally in the eyes of the law. While legal tangles must be sorted out after much deliberation, it was precisely that route that the four “dissenters” say was blocked by none other than the CJI. The clarification, that the CJI is the “first among equals, nothing more or less” is a fundamental principle of how institutions ought to function in a democratic republic.
Is the “honour” of the Supreme Court more important than its “integrity”? That’s the question of the hour, and the answer to that needs deep introspection from each and every one of us.