Free Press Journal

Supreme judiciary in supreme mess


Supreme Court, Maharashtra, 1959 Maharashtra land ceiling dispute, landownersPTI Photo by Atul Yadav

IT is most undesirable that India has to bear with such a fractured judiciary that is meant to be the protector of the Constitution.

The worst ever wrangle between Chief Justice of India Dipak Misra and four senior most judges of the Supreme Court is further worsening day by day, and there does not seem to be any indication of respite as both the warring sides are stuck to their guns, and unless there is a forceful intervention from a third party, none of them is likely to budge. This sorry state of affairs will not only lower the image of the august institution, but perhaps be instrumental in lowering the faith and confidence of the Indian population in this highest institution of judiciary. The Supreme Court of India is the highest and most independent authority to guard the interests of over one billion Indians and to protect its Constitution. It’s not the Government verses the Judiciary. Actually, it’s Judiciary verses Judiciary.

A war broke out between the Chief Justice of India and four senior most judges of the Supreme Court ten days ago. By the time, this article sees the light of the day, hopefully the controversy is died down. If it happens, it would save the top judiciary and the nation from one of the worst embarrassment and shame. For any reason if it does not, a hail will break all over and would surely be against the interests of the Indian democracy. However, even if the truce is forged between the warring senior judges, the cause of concern is that the cracks in the temple of justice are now vivid and wide open to show that all is not well in the third pillar of the Democracy.

Judges go public

Four senior most Indian Supreme Court judges took the nation by surprise by suddenly going public with an extraordinary warning that India’s Chief Justice is mishandling sensitive cases and endangering the court’s integrity and the country’s democracy. The four judges, the most senior members of the bench after the chief justice, abruptly left their courtrooms and called the first ever press conference by members of the judiciary, usually solemn institution.

Led by Judge Jasti Chelameswar, they delivered an unprecedented message to the journalists gathered in Delhi: that the conduct of India’s highest court was “not in order” and that “unless this institution is preserved, democracy can’t be protected in this country”. The revolt against the Chief Justice, has been months in the making. It broke unto the open in November last year, when the CJI was accused of mishandling a matter relating to a former judge alleged to have offered to bribe members of the Supreme Court in a case Misra himself was presiding over.

CJI Misra has not been accused of taking bribes, but was fiercely criticised, including by senior lawyers, for repeatedly intervening to ensure only judges of his choice could hear the matter. The fresh cause that ignited the wild fire last week was a case cited by the four justices was a request for an independent investigation into the death of judge B H Loya, who was overseeing a case involving murder allegations against Bharatiya Janata Party President Amit Shah, a leading figure in Indian politics. Media reports in recent months have raised suspicions over Loya’s death. Though, politically charged cases have traditionally been overseen by the Supreme Court’s most senior judges, the request for an independent investigation into Loya’s death was assigned by CJI Misra to a relatively junior member of the bench. This seems to be a serious deviation from the practice that has been observed for the last seven decades. No one still knows the reason for this deviation.

The case assumes political significance as it involves Amit Shah. There is no reason why CJI Misra should not come clean publicly, instead of taking the shelter of an old judgment that gives the CJI the freedom to assign cases to any bench of his choice without considering the sensitivity of the matter. Incidentally, Misra was elevated to the post of CJI after Narendra Modi assumed office of prime minister in 2014. Thus, the office of the prime minister also comes in the eye of controversy. In a letter to CJI Misra, which was released to the media on 12th January, the four judges said: “There have been instances where cases having 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 preference’ without any rationale for this assignment. This must be guarded against at all costs.”

This is a very serious allegation that challenges the intentions of CJI Misra himself. It is said, ‘Caesar’s wife must be above suspicion’. In that case, it is necessary and most desirable that CJI Misra comes out clean on his own. In the most reported press conference, journalists asked if the Chief Justice should be impeached, Justice Chelameswar said: “Let the nation decide that”. This is also a volcanic reply. It actually means that the senior judiciary has lost its faith and confidence in CJI Misra. It is most undesirable that India has to bear with such a fractured judiciary that is meant to be the protector of the Constitution. The judges were at pains not to accuse CJI Misra of any specific wrongdoing nor criticise any specific judgments. Rather, their charge is that by breaking from the traditional procedures for allocating cases – which heavily emphasise seniority – he is allowing what they called “questions on the integrity of the institution” to fester. The moot question is should one even think of taking the matter of integrity of a sitting Judge to the people? The senior judges need to give answer.

Rahul jumps the gun

The new enthusiastic president of the Congress quickly jumped the guns and made a comment. It did not go well with the judiciary, the media and the political circles. Sensing that he had made a gross mistake, Rahul shut is mouth. Now a request and prayer to all political players: Please do not get involved in this controversy and let the judiciary be alone. You have many other issues to play around. Judiciary is surely not your cup of tea.

It will be interesting to note that Justice Chelameswar closed the dramatic press conference by saying: “We don’t want wise men saying 20 years from now that Justice Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph sold their souls and didn’t do the right thing by our constitution.” This can be termed as a near caustic comment. If Indian Judiciary, that is bigger than that of Great Britain and, of course many other nations, has to maintain its prestige and pride, it is for the senior judges including CJI Misra himself to ensure that a truce is forged and all judges maintain peace and harmony once again.

The author is a political analyst and former  Member of Parliament (RS).