CJI versus Justices: Judicial crisis out in the open

Last Updated: Tue, Jan 16, 2018 17:20 hrs
Judicial disorder!

“It is discharge of debt to the nation which has brought us here”, said Justice Gogoi sitting alongside justices Chelameswar, Lokur and Kurian Joseph in an unprecedented press conference addressing serious concerns with the way the Chief Justice of India (CJI) Dipak Mishra was assigning cases. Apart from concerns of cases being assigned to junior judges, they took issue with the assignment of the case to do with the mysterious death of Justice BH Loya, who was hearing the Sohrabuddin fake encounter case.

They had aired their grievances in a letter written to the CJI two months ago stating that the CJI is “first among equals nothing more and nothing less”. From all accounts, this seemed like a last resort for them as Justice Chelameswar stated in part, “This is an extraordinary event and it is with no pleasure we are doing this...We are left with no choice but to address the nation”.

With a move this brazen and in public, the justices were left with no choice but to present to the nation a revered and important institution as the Supreme Court is not immune from bias or at the very least improper functioning at such a high level. The Indian Express editorial called it a Public Hearing as the justices drew attention to an institution in crisis as the editorial states –

“Each of them has a formidable record on the bench and it is deeply troubling that an institution that plays the guardian and watchdog of freedoms, and the upholder of the constitutional order, should be seen to be so ill-equipped when it comes to listening to its own”.

“For the political establishment, the judiciary’s internal trust deficit spilling out in the open could become another reason to question its autonomy — and find a way to muscle in. What is most important, for now, is to heed the gravity of the issues that the four judges have felt compelled and constrained to draw public attention to”.

On the morning of the press conference, the justices met with the CJI and told him about their problems regarding the improper functioning and to take remedial steps, but their efforts were in vain.

“There is no going back to business as usual from here. Much will depend on whether, and how, in the coming days, India’s institutions choose to respond to the crisis bared on Friday to public view”.

With the four justices resorting to speak in public about their serious concerns, the pressure is on CJI Dipak Mishra added only by an open letter written by four retired judges including a retired Supreme Court judge. The letter was a statement of support to the four justices and stated that the crisis needs to be resolved within the judiciary. Senior RSS leaders criticized the justices for their extraordinary press conference alleging a political conspiracy.

J Nandakumar, Akhil Bharatiya Sah Boudhik Pramukh of the RSS came down heavily on the four judges for “poisoning the waters” telling the Indian Express the timing is suspicious. They have come under pressure for their motives and their decision to hold a press conference.

The allegations made against the process and of CJI Dipak Mishra are serious. Pratap Bhanu Mehta, Vice Chancellor of Ashoka University, in a column for the Indian Express asks if there is any justifiable evidence against the CJI –

“They (the four justices) have confirmed that the Supreme Court is facing a serious crisis of legitimacy. Their concerns deserve serious attention. If handled well, this could be a moment for the regeneration of the Court”.

The issues here pertain to processes and structural problems as it relates to the power of chief justices, appointments etc, while the crux of the problem is that four senior justices of the Supreme Court of India, the apex court, have lost confidence in the Chief Justice of India. This pertains to him personally and his conduct. Pratap Mehta asks a valid question -

“How do we adjudicate this core accusation? The charge is serious. For all we know, it may very well be true. But do we have justifiable evidence? The charge is so serious, that if there is evidence, it warrants formal proceedings against the chief justice”.

“Can the judiciary recover? If Dipak Misra, as an act of statesmanship, addresses the fact that he has lost the confidence of the collegium and finds ways to recover it, perhaps. But this is unlikely. Taking charges the logical conclusion will be difficult”.

One of the key aspects of this is the independence of the judiciary. The column as the pertinent question, “Will giving the government more roles in appointing judges or disciplining them weaken or strengthen judicial independence?”

The onus it seems is now on the CJI. He must take charge and respond to the concerns of the justices who have come forward publically. In a column for the Hindustan Times, journalist Barkha Dutt states that status quo in response to this crisis is not adequate –

“At the heart of the crisis – the word crisis is an understatement for this open war in the judiciary - are two issues: how judges are appointed and how sensitive and big-ticket cases are assigned”.

“So no matter what your political ideology is, as citizens, we must reject status quo as a response to this judicial crisis. The Supreme Court has been our moral conscience”.

The Times of India editorial echoed these sentiments in stating that the CJI must take charge to settle any differences within the apex court –

“…the CJI should take the initiative to resolve the differences. This will also present him with an opportunity to establish unambiguous norms that will serve as a touchstone for his successors. His power to constitute benches for important judgments has a bearing on the larger welfare of society”.

An independent judiciary is fundamental or a functioning democracy. This could be seen as airing dirty laundry in public. However, the fact that four senior justices felt the need to address the nation in a public forum about their concerns in the way the Supreme Court is functioning is alarming.

By their own admission, this is not the way they wanted to tackle the problems they faced. Justice Chelameswar striking words ring true, “Unless this institution [Supreme Court] is preserved and it maintains its equanimity, democracy will not survive in this country or any country”. 

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