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.

 |   Long-form |   12-01-2018
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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.

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.

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."

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.

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.

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". 

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”.

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.

Political reactions

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".

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.

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.

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.  

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.

Also read: Why top four SC judges claim judiciary and democracy in India are in danger

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