Guardians of Democracy: 4 judges openly challenge Nepotism in the SC

Written by Sabrangindia Staff | Published on: January 12, 2018

‘Preserve SC, Protect Democracy’ say the Judges in a press conference today. Read Letter to CJI


SC Judges

Four of the five senior most judges in the Supreme Court –five of whom constitutes its Collegium—have in an unprecedented move-challenged the CJI for alleged nepotism in assigning cases to pre-chosen benches in a press conference in New Delhi 

Four of the five senior most judges of the Supreme Court – Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph – in a letter to Chief Justice of India Dipak Misra expressed concern on certain judicial orders passed by the top court which has “adversely affected the overall functioning of the justice delivery system.”

They said they sent the CJI the letter but didn't hear back, and then they met him again this morning, to no avail."We collectively tried to persuade the CJI that certain things aren't in order so take remedial measures but unfortunately our efforts failed," said Justice Chelameswar.The four judges said many "undesirable" things have occurred in the judiciary lately."The administration of the SC is not in order and many things which are less than desirable have happened in last few months," said Justice Chelameswar.

A few minutes before the press conference, the SC said, separately, that the "mysterious death of Justice BH Loya is a serious issue". They asked the Maharashtra government to present all documents to do with his death to the court on Monday. Justice Loya was hearing the Sohrabuddin fake encounter case and died under mysterious circumstances.

The judges also had a grievance that the PIL seeking a probe into Justice Loya's death was assigned to court no. 10 and not to any of the first four benches other than CJI-led bench.

 
  • The judges have—months after the issue has been festering-- literally blown the lid off a growing rift with Chief Justice Dipak Misra. The explosive statements were made at a press conference "The four of us are convinced that unless this institution is preserved and it maintains its equanimity, democracy will not survive in this country," Justice J Chelameswar said on the lawns of his residence. He is the second most-senior judge of the Supreme Court.
  • Being pushed to the wall, the four senior most judges after the CJI, said that their concerns include cases of far-reaching consequences" being allocated without transparency. They made available a letter written by them to the Chief Justice two months ago, alleging "selective assignment of cases to preferred judges" and that "sensitive cases were being allotted to junior judges".
  • Justices J Chelameswar, Ranjan Gogoi, Madan Lokur and Kurien Joseph said repeated attempts to alert the Chief Justice to their concerns - including a meeting with him this morning - had failed to make any progress which is why they decided to voice their complaints publicly.
  • When asked if their complaints include the case of the death of a CBI judge, BH Loya, "yes" said Justice Gogoi. This was however only the last of a string of such instances.
  • The Chief Justice in December was backed by four other top judges in asserting that he is the "master of the roster" and is alone authorized to allocate cases. The four judges who met the press today said that the rules make him "only the first amongst the equals, nothing more or nothing less."
  • The public confrontation today comes amid growing calls for the judiciary to show more transparency including in how judges are selected for promotion and assignment to the High Courts and the Supreme Court.
  • Sources in the government said that the explosive trading of charges today is being seen as "an internal matter of the judiciary" on the administration of the Supreme Court and the government sees no reason for it to intervene.
  • In December, the Chief Justice was accused by some lawyers of inappropriately involving himself in hearing a case that alleges judicial corruption even though he was has been involved in earlier hearings of a linked matter - about whether bribes were paid by a medical college to reverse its blacklisting by the government.
  • While the immediate prompt coincided with the Loya case, the Ayodhya dispute, the Aadhar case are two major instances where ‘handpicked benches’ have been  were chosen. In the Ayodhya Babri Masjid Demolition case,  CJP Dipak Misra, Ashok Bhusan, S Abdul Nazeer are slated to the hear the matter on February 8.  The Aadhar matter, crucial to privacy and national security is to be placed before a five judge bench from January 17.
  • Background of the Loya case: Judge Loya was hearing a case that accused BJP president Amit Shah of murder when he died in Nagpur in December 2014. His family has alleged that his death was unnatural and came after he was offered 100 crores as a bribe to rule in favour of the BJP leader. Medical records show Judge Loya died of a cardiac arrest. Within weeks of his death, Amit Shah was acquitted.
  • The Supreme Court has been asked to order an independent inquiry into Jude Loya's death. This morning, the case was assigned to a bench that does not include the four senior judges who held today's press conference.
 
 
Full letter to the Chief Justice of India from the Supreme Court judges:

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 office of the Honourable Chief Justice of India.

From the date of establishment of 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 a century after the above mentioned chartered High Courts. These traditions have their roots in the anglo-saxion jurisprudence and practice.

Once of the well settled principles is that the Chief Justice is the master of the roster with a privilege to determine the roster, necessity in multi-numbered courts for an orderly transactions of business and appropriate arrangements with respect to matter with which member/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 no a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues. It is too well settled in the jurisprudence of this country that the Chief Justice is only the first amongst the 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 a particular case or the composition thereof.

A necessary corollary to the above-mentioned principle is the member of any multi-numbered judicial body including this court would not arrogate to themselves the authority to deal with and pronounce upon matter 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 off late the twin rules mentioned above have not been strictly adhered to. There have been instances where case has 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 presence’ with any rationable basis for such assignment. This must be guarded against at all costs.

We are not mentioning details only to avoid embarrassing the institution but note that such departures have already damaged the image of this institution of some extent.

In the above context, we deem it proper to address you presently with regard the order dated 27th October, 2017, in R B Luthra vs. Union of India to 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 SCC 1] 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 collegium of five judges (including yourself) and the Memorandum of Procedure was finalised and sent by then Honourable Chief Justice of India to the Government of India 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 of India 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 issue cannot linger on for an indefinite period.

On 4th July, 2017, a bench of seven judges of this court decided In Re Honourable 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 great 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 other Honourable Judges of this court.

Once the issue arising from the order dates 27th October, 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.

With kind regards,
J. Chelameswar
Ranjan Gogoi
Madam B Lokur
Kurian Joseph