Four top SC judges come out against CJI, say free judiciary is hallmark of democracy

Four senior Supreme Court judges -- Justice Jasti Chelameswar, Justice Ranjan Gogoi, Justice Madan Lokur and Justice Kurien Joseph -- addressing a press conference in New Delhi on January 12, 2018.
Four senior Supreme Court judges -- Justice Jasti Chelameswar, Justice Ranjan Gogoi, Justice Madan Lokur and Justice Kurien Joseph -- addressing a press conference in New Delhi on January 12, 2018.
In an unprecedented move that pointed to a major crisis in the top echelons of the judiciary, four senior judges of the Supreme Court of India came out against the Chief Justice of India (CJI), voiced concern at the state of affairs in the apex court and stressed that a free judiciary is the hallmark of a good democracy.
Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur, and Kurian Joseph—the four senior-most judges after the CJI, Mr. Justice Dipak Misra (CJI)—also released a letter that they had sent to him.
In their interaction  with the media and their letter, the judges spoke in particular about the way rosters were drawn up by the Chief Justice and cases were allotted to different judges by him.
The press conference was held at the residence of Justice Chelameswar, who began by saying that it was an extraordinary event for any country, and in particular for India. "It gives us no pleasure, but circumstanes have compelled us to call this press conference," he sai.
He said that, for some time now, the administration of the Supreme Court was not in order and many things "which were less than desirable" had happened in the past few months.
"Time and again, as senior members of the court, we though we hold a responsibility to the institution, to the nation. We tried to, collectively, persuade the Chief Justice of India that certain things are not in order and therefore he should take remedial measures. Unfortunately, our efforts failed and all four of us are convinced that unless this institution is preserved and maintains its equanimity, democracy will not survive in the country," he said.
He pointed out that the hallmark of a good democracy was the independence of its judiciary.
Justice Chelameswar said that even this morning they had gone to meet Justice Misra with a "specific request" but they could not convince him of the rightness of their position.
"We are left with no choice but to communicate to the nation that, please take care of this institution. We have heard a lot of wise men talking in the country earlier. I don't want that, another 20 years later, some very wise men in the country blame that Justice Chelameswar, Justice Gogoi, Justice Lokur and Justice Kurian Joseph didn't take care of this institution. We didn't want it to be said, so we place it before the people of this country,"  he said.
Justice Chelameswar said that, a couple of months ago, the four judges had given a signed letter to Justice Misra, saying that they would like a "particular thing to be done in a particular manner". He said it was done, but in such a way that it raised even more questions and doubts about the integrity of the institution. "That is what we believe," he said.
Four senior SC judges come out against CJI
To repeated questions, the judges declined to go into the details of the issues they were raising, though Justice Gogoi did at one stage say that the issue on which they had met the CJI this morning was with allocation of the case relating to the death of CBI Judge B H Loya in Maharashtra, who was hearing the Sohrabuddin Sheikh encounter death case in Gujarat, in which current Bharatiya Janata Party (BJP) Amit Shah had been named as an accused by the Central Bureau of Investigation (CBI) in 2010.
In their letter to Justice Misra, the four judges said that it was with "great anguish and concern" that they had decided to highlight certain judicial orders passed by the court, which had adversely affected the overall functioning of the justice delivery system and the independence of the High Courts, besides impacting the administrative function of the office of the CJI.
"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-Saxon jurisprudence and practice.
"One of the well settled principles is that the chief justice is the master of the roster with the privilege to determine the roster, necessity in multi-numbered courts for an orderly transaction of business and appropriate arrangements with respect to matters 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 designed for a disciplined and efficient transaction of business of the court but not 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 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 that any multi numbered judicial body including this Court will not arrogate to themselves the authority to deal with and pronounce upon matters 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," the judges said.
The judges regretted that, of late, the twin rules mentioned by them had not been adhered to. They said there had been instances where cases having far reaching consequences for the nation and the institution had been assigned by the chief justices of the court selectively to the benches “of their preference” without any rational basis for such assignment. "This must be guarded against at all costs," the letter said.
"We are not mentioning details only to avoid embarrassing the institution but note that such departures have already damaged the image of this institution to some extent.
"In the above context we deem it proper to address you presently with regard to the Order dated 27th October, 2017 in R.P. Luthra vs. Union of India to the effect that there should be no further delay in finalizing the Memorandum of Procedure in the larger public interest. When the Memorandum of Procedure was the 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 the Collegium of five judges (including yourself) and the Memorandum of Procedure was finalized and sent by the then Hon’ble the 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 finalized 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 finalization of the Memorandum of Procedure or that that issue cannot linger on for an indefinite period.
"On 4th July, 2017, a Bench of seven Judges of this Court decided InRe, Hon’ble Shre Justice C.S. Karnan (2017) 1SCC 1]. In that decision (refer 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," the judges said.
They said that 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 grave importance, if at all required to be taken on the judicial side, should be dealt with by none other than a Constitution Bench, they said.
"The above development must be viewed with serious concern. The Hon’ble 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 state, if required, with other Hon’ble Judges of this Court.
"Once the issue arising from the order dated 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," the letter added.
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