Senior Supreme Court judges revolt against Chief Justice

In an unprecedented move, four sitting judges of the Supreme Court of India held a press conference today saying that the administration of the country's highest court was not in order, bringing to the open a growing rift between senior judges and the Chief Justice of India, Dipak Misra.

(Left to right) JChelameswar, Ranjan Gogoi, Madan Lokur, and  Kurian Joseph

The four justices - Jasti Chelameswar, Ranjan Gogoi, Madan Lokur, and  Kurian Joseph – warned that democracy would not survive in the country unless the institution was preserved.

Speaking to the press, Justice J Chelameswar, the senior-most judge in the Supreme Court after the Chief Justice of India, said the administration of the top court is ''not in order'' and that efforts to convince Chief Justice Dipak Misra had ''failed''. Chelameswar sounded caution over the ''survival of democracy.'' 

Replying to a question on whether the CJI should be impeached, the justice said it was for the nation to ''decide''. Apart from J Chelameswar, other sitting judges present included Justice Ranjan Gogoi, Justice Madan B Lokur and Justice Kurien Joseph, who rank third, fourth and fifth in the order of seniority, respectively.

Soon after the press conference, CJI Dipak Misra met Attorney General KK Venugopal, even as reports say the government is not likely to intervene anytime soon.

The conference, held at the residence of Justice Chelameswar in New Delhi, reflected the growing chasm between senior justices and the Chief Justice of India, Dipak Misra.

Former Solicitor General of India N Santosh Hegde said he was ''devastated'' by their action which has caused ''irreparable'' damage to the institution.

''As a retired judge of the Supreme Court, I feel devastated. For some reason or the other, their cause is justified, (but) relief they are seeking is wrong...going to the media? No. Judiciary was always considered as a family. Family disputes are never taken to the streets,'' Hedge said.

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.

''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.

''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,'' Tulsi said.

Justice (Retd) AK Ganguly said he felt 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 people.''

Senior advocate Indira Jaising welcomed the move and congratulated the four judges while former finance minister and BJP senior leader Yashwant Sinha said he ''stands firmly'' with the four judges of the Supreme Court.

''Instead of criticising them let us concentrate on the issues raised by them. If the highest court is compromised then democracy is in peril.

What the judges are hinting at is loud and clear. Hope we get at the truth of Judge Loya's death.''

West Bengal chief minister Mamata Banerjee also voiced ''anguish'' over the happenings in the Supreme Court.

''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,'' Banerjee, also Trinamool Congress chief, said in a statement.

''Judiciary and the media are the pillars of democracy. Extreme interference of central government with judiciary is dangerous for democracy,'' she said.

CPI leader D Raja who later met Justice Chelameshwar said, ''Have known him for a long time. When I came to know of the extraordinary step taken by him and other judges, I thought I must meet him. Not giving it political colour. These are concerns for everybody, it's about future of country and democracy.''

The Supreme Court Bar Association will meet in New Delhi tomorrow (13 January) to discuss the aftermath of the press conference held by four senior judges, complaining about the functioning of the top court.

A former Chief Justice KG Balakrishnan and two other judges termed the press meet ''unprecedented'', but refused to comment. The former CJI said he was neither for nor against the four judges on what they did. ''What is happening is very unfortunate and this should have been avoided.''

Former union law minister Hansraj Bhardwaj said, ''It's the loss of prestige of the entire institution. If you lose public trust what remains? Judiciary must remain pillar of democracy. It's responsibility of (the) law minister to see how it functions.''

Congress leader and senior advocate Kapil Sibal will meet party president Rahul Gandhi at 5 pm today over the press conference by the four Supreme Court judges.

The CPI(M) said a thorough investigation was needed to understand how the independence and integrity of judiciary was being affected.

For sitting judges to come before the media is an unprecedented step. This means that there is a serious dispute, either with Chief Justice of India (CJI) or some internal dispute, said PB Sawant, former Supreme Court judge.

Prime Minister Narendra Modi spoke to law minister RS Prasad about the allegations made by the four Supreme Court judges.

The point of contention:
The four justices seem to have used the press conference to convey the "less than desirable" things taking place inside the apex court, which they have referred to a letter that they had written to the CJI Dipak Misra. The letter mentions an order passed in the case RP Luthra vs Union of India, ministry of law and another respondent, passed on 27 October.

Based on the letter to the CJI, which the four justices made public today, it seems clear that the main point of contention at present is the delay in implementing the Memorandum of Procedure for the appointment of judges in India. "...there should be no further delay in finalisation of MoP in larger public interest," the SC order in the Luthra case had said and was reiterated by the four judges as well in their letter to the CJI.

Luthra, a lawyer, had challenged the appointments made to the higher judiciary in the absence of the revised MoP. While hearing the petition, on 27 October 2017, the bench of Justices Adarsh Kumar Goel and Uday Umesh Lalit had issued a notice to the centre and directed the presence of Attorney-General KK Venugopal.

While the two justices in their order had rejected Luthra's challenge seeking cancellation of the appointment of judges without the MoP, they found merit in the arguments stating that "there should be no further delay in finalisation of the MoP in larger public interest".

The two justices stressed on the need "to set up a mechanism for corrective measures other than impeachment against the conduct of an erring judge," citing the court's 4 July 2017 order on a case involving Justice CS Karnan.

It further added that the collegium must begin the process of filling vacancies of chief justices of high courts at least a month before vacancies arise in accordance with "the Memorandum of Procedure for Appointment (MOP) currently in force, in pursuance of judgment of this Court in Supreme Court Advocates-on-Record Association and Others versus Union of India, (1993) 4 SCC 441, para 478".

This development took the government by surprise since the MoP was dealt on the administrative side by the Supreme Court.

The two justices had then fixed 14 November for the next hearing and had appointed Senior Advocate KV Vishwanathan to assist the court as amicus.

However, on 8 November, the matter was transferred by the Chief Justice to a three-judge bench comprising himself, Justices AK Sikri and Amitava Roy, which recalled the 27 October 2017 order by Goel and Lalit saying, "these are not matters to be taken up on the judicial side like this'', without explaining why it should not be pursued on the judicial side.

"As far as the other prayers are concerned, there was no necessity or need to proceed with the same, more so, in view of the Constitution Bench judgments in Supreme Court Advocates-on-Record Association and Another versus Union of India (2016)… Accordingly, the order passed on 27 October, 2017, relating to other aspects barring non-entertainment of the special leave petitions, stand recalled,'' it quoted the three-judge bench as saying.

This recalling of the order is what the four justices Chelameswar, Gogoi, Lokur and Joseph refer to in their letter. In the letter, the four justices criticised the three-judge SC bench's method of functioning stating, "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 is 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."

In a surprise move,the Supreme Court recalled its earlier order which, while questioning the delay in finalising the Memorandum of Procedure (MoP) for appointment of judges to the higher judiciary, had decided to take up the matter on the judicial side.

The recall order comes at a time when the Supreme Court Collegium and the government are locked in a tussle over the MoP - it has been on ever since a five-judge bench of the Supreme Court struck down the National Judicial Appointments Commission (NJAC) Act, 2014, and asked the Centre to finalise the MoP. A draft MoP, drawn up in March last year, has not been finalised since the government and Collegium are yet to agree on some of its clauses, including whether a candidature can be rejected on national security grounds.

(See: Text of the letter by the four justices to the Chief Justice)