The stand taken by the four senior judges, whose press conference on Friday unleashed a huge crisis in the Supreme Court, will decide the future course. Meanwhile, the Supreme Court has announced the composition of a five-judge constitution bench headed by CJI Justice Dipak Misra to hear crucial cases. None of the four judges has been included in the bench.
The Judges in their letter emphasized that 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 members/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 not a recognition of any superior authority, legal or factual, of the Chief Justice over his colleagues. It is too well-settled in jurisprudence that the Chief Justice is only the first among equals — nothing more or nothing less.
The Judges addressed that Chief Justice of India with regard to the order dated 27.10.2017 in R.P. Luthra vs. Union of India, 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 SCC1] 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 CJI) and the Memorandum of Procedure was finalised and sent by the then Honourable Chief Justice of India to the government 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 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 that issue cannot linger on for an indefinite period.
On July 4, 2017, a Bench of seven judges of Supreme Court decided In Re, Hon’ble Shri Justice C.S. Karnan [(2017) 1 SCC 1]. In that decision (referred to in R.P. Luthra), two of the judges 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 grave 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 either Hon’ble Judges of this Court.
Once the issue arising from the order dated 27.10.2017 in R.P. Luthra vs. Union of India, mentioned above, is adequately addressed by CJI and if it becomes so necessary, we will apprise CJI specifically of the other judicial orders passed by this Court which would require to be similarly dealt with.
CJI violated principle of nemo judex in causa sua or ‘no man can be a judge in his own case’
The one case in which a complaint was made against the Chief Justice, the Medical Council of India bribery scam, was re-allocated to himself on the bench by the Chief Justice on November 10, 2017, despite being allocated to another bench (consisting of five senior-most judges of the Supreme Court) by Justice Chelameswar, the second-most senior judge. The principle of nemo judex in causa sua or ‘no man can be a judge in his own case’ was held to be overruled by the other principle of the Chief Justice being the ‘master of the roster’. This may need changing if any meaningful resolution is sought.
In the current controversy, the four judges pointed out in their letter on Friday that the CJI had out of turn marked the petition related to appointment of judges to a bench led by a judge who is at number eleven in seniority. The plea, they claimed, should have been heard by a constitution bench since five judges had decided the validity on the controversial NJAC law on the appointment of judges.
Similarly, the CJI broke convention when he hurriedly set-up a constitution bench in the medical college case and did not include any of the top four judges in it, according to allegations made by one of the four judges. As per convention, a constitution bench usually comprises one senior judge other than the CJI.
The exclusion of Justice Chelameswar and Justice SA Bobde from the bench hearing petitions against Aadhaar is also a departure from practice, lawyers said.
Lessons from Past
The most contentious time was in the 1970s, when the idea of the ‘committed judiciary’ that Indira Gandhi and her team spoke of, was almost secured. The infamous ‘ADM Jabalpur vs Shivkant Shukla’ case (April 28, 1976), which essentially upheld the government’s right to limit the fundamental rights of Indians in an Emergency, had a sole dissenter — Justice HR Khanna, who was penalised for his view.
The appointment of Justice AN Ray, as Chief Justice in April, 1973, superseding three senior judges, is meant to be an all-time low in how the judiciary was sought to be managed. His proximity to then-PM Indira Gandhi raised serious questions over the judiciary’s role in the Emergency.
Later, The government retains administrative control, but especially after the NJAC Bill was struck down by the Supreme Court in 2015 (Justice Chelameswar being the lone dissenter), appointments again fall in the judiciary’s domain.
Justice Kurian exuded confidence that the issue would have got resolved already. It was for institutional introspection and correction and I hope the issue pertaining to allocation of cases has been already addressed. The Judges maintained that there was nothing personal and political in unprecedent gestures going public with their concern about judiciary; nor did it smack of indiscipline. “It was born from our commitment to institution and we wanted to bring these issues to the people’s notice. That has been achieved to good effect,” he said.
We as citizens must reject politicisation as a response to this judicial crisis. The Supreme Court has always been there for us our guardian & guard for our rights; it has upheld individual liberty as part of the right to privacy, struck down triple talaq, recognized the rights of transgenders and has almost always been there when elected leaders fail to support the interests of the nation. The act of Judges shouldn’t be linked with politics that some media houses and political forces are doing instead for supporting the cause as these all 4 judges have been there in Landmark judgments for the interest of the nation and linking them with politics is very regretting and saddening.