K B Jandial
As the nation is proudly celebrating its 69 Republic Day, the credibility of the Judiciary, the third and the only respected constitutional organ of the State, too became a suspect following an open attack against the CJI Deepak Misra by his own four senior most brother judges on 12th January, 2018 at first ever presser (barring Justice C S Karnan) in the chequered history of Indian judiciary. Since then this highest temple of justice is in the state of turmoil with political parties, activists and commentators tearing into shreds the good image of the judiciary, shattering people’s confidence in it. While the crisis is yet to be resolved between the four rebel Judges and the CJI, people are keenly watching the constitution of benches especially for PILs by the adamant CJI and the judgments delivered by the preferred and non-preferred benches. In public perception, judiciary is now no longer a ‘holy cow’ and different from two other constitutional organs of the State- the Legislature and the Executive.
The Constitution of India envisages ‘separation of powers between the legislature, the executive and the judiciary’ with the fundamental concept of independent judiciary which is considered as the basic structure of the Constitution. Independence of judiciary is of paramount importance for India which has diversity in everything- political ideologies, religions, languages, culture, traditions and even values. Everyone had been looking towards the Judiciary for justice of every sort. All of sudden, the nation got a shocking revelation that all is not well in Supreme Court and the “democracy is under threat”. What has happened in the highest court of justice that the people start suspecting judgments, once the final word on contentious issues?
The only other presser by any sitting Judge of higher judiciary was by Justice C S Karnan of Calcutta High Courtwho had shamed the Judiciary (himself too) by seeking CBI enquiry against the previous CJI besides “ordering” Police Commissioner of Delhi to produce before him all the seven judges of SC bench that was hearing Contempt of Court proceedings against him and had ordered his psychiatric examination. The SC had withdrawn his judicial power for his brazen misconduct. Justice Karnan had written to the Prime Minister making corruption allegations against 20 High Court and Supreme Court judges. This sordid episode ended with the arrest and imprisonment of first ever sitting judge.
A much more bizarre judicial event (presser)has now occurred which sent the nation into tizzy. It sought to convey to the nation thata serious discord exists in the Apex Court with hints of CJI not being ‘fair’ while exercising administrative powers especially in allotment of important cases and PILs to “preferred bench”. Even if the rebels didn’t say explicitly about dispensing favours but the CJI’s alleged arbitrary use of administrative power is bound to seriously impact the judicial side as well in the shape of judgmentsthat would be delivered by the ‘preferred benches’.
Out of the four senior most SC judges who targeted the incumbent CJI includes Justice Ranjan Gogoi who is slated to become CJI on 3rd October this year. Their logic of taking unprecedented route of press conference was the non-responsiveness of the Chief Justice on their serious concerns. Justice Jasti Chelameswar ‘leader of the rebels’is retiring on 22nd June this year without becoming CJI. Other two ‘rebel’ judges, Justice Madan Lokur and Justice Kurian Joseph too are unlikely to be CJI as they would retire on 30th December and 29th November this year respectively much before Justice Gogoi demits office. Going by the seniority, Justice Sharad Arvind Bobde is slated to succeed Justice Gogoi on 18th November, 2019. All these seven top most SC Judges were appointed between 10th October, 2011 and 12th April, 2013 during UPA tenure and not during Modi’s Government.
The unsaid inference of the charge of “threat to democracy” and objection to allotment of PILs to “preferred benches” is an unspoken insinuation against Modi Govt’s perceived interference in the judiciary in the backdrop of release of Amit Shah whose acquittal in the alleged fake encounter killing of gangster Sohrabuddin came after the alleged suspicious death of CBI Judge BH Loya,and allotment of two PILs for reopening investigation into Loya death, to a junior judge.
The unusual decision of the four Judges to launch a tirade on the CJI has opened the flood gate of spiteful comments on the judiciary in general and Justice Misra in particular. One of the four rebel judges had said in response to a question that “it is for the nation to take a call for impeachment of CJI”. Knowing well that no judge has ever been impeached, the rebel still dropped this loaded comment. Inappropriately, they have put the judiciary in public domain where no-hold-bar political and public comments have dented its “infallible” and “holy cow”image. Tsunami has hit Indian judiciary on 12th January, 2018 and with it, its reputation.
Some well-known activists cum Senior Advocates like Prashant Bhushan, Duyshant Dave, Indira Jaisingh too are engaged in a running a tirade against CJI who is not yielding and continuing with his authority of ” master of roaster” unmindful of invectives being hurled on him. Earlier, Prashant who heads the Committee on Judicial Accountability and Reforms (CJAR) had filed a petition seeking internal inquiry into the grant of recognition of a medical college in which he alleged involvement of Justice Misra even though he doesn’t figure in theCBI’s FIR. He and Justice Dipak Misra are locked horns after Bhushan demanded the CJI to recuse himself from the MCI graft case but the CJI is refusing to oblige him. Prashant has now come up with a fresh complaint against the CJI with copies to the four “rebel” judges, and Justice A K Sikri, next senior most Judge and demanded inquiry by SC judges in what he called “allegations of misconduct.”
This disgusting affair started with the grant of permission to medical colleges to admit students after an MCI ban by a bench of Allahabad HC, allegedly on illegal gratification. With strong evidence including transcripts of alleged telephone conversations between the retired Odisha High Court judge, middleman and college owner, the CBI sought CJI’s permission to file FIR against a serving Judge Justice SN Shukla which was declined. Instead, he set up an in-house inquiry committee comprising Madras HC CJ Indira Banerjee, Sikkim HC CJ S K Agnihotri and MP HC Justice P K Jaiswal, to look into these allegations, which has recommended his removal.It is reported that the CJI has advised Justice Shukla to either resign or take voluntary retirement which he has refused to do either. Consequently, Justice Shukla has been divested of judicial work and CJI’s permission to CBI may follow. Will it end the acrimony? Probably not, as the game is for CJI’s head.
As regards the charge that the CJI is allotting important PILs to “junior” Judges, the past record doesn’t make his action unusual and unprecedented. In the past, many ‘super sensitive cases of national importance’ were allotted to much junior benches with none of the then senior most judges going to the press against the then CJIs. These include Rajiv Gandhi Assassination case (1998, Court No. 8), Bofors case (1999, Court No 8), Best Bakery case, ( Court No 11), Disqualification of MPs & MLAs on conviction (2005, Court No 9), Sohrabuddin Fake encounter case, 2007 ( Court No 9), Ram Jethmalani’s Black Money case, ( 2009, Court No 11), 2G Spectrum Scam case, (2010, Court No 11), LGBTQ case, (2010,Court 11),CBI appeal against Allahabad HC dropping conspiracy charge against L K Advani in Babri demolition case, (2011, Court No 8 & later No. 11) Aadhaar validity case, (2012, Court No 5), Coal scam case, ( 2012, Court No 7), Validity of IT Section 66 A of IT Act, ( 2012, Court No 11), Appeal by Kishore Samiriti in Rahul Gandhi case, (2012, Court No 8) BCCI case, (2013, Court No 6) Vijay Mallya Case (2016, Court No 10).
There is merit in the argument that sensitive cases of national importance should be handled by more experienced judges but where is the justificationof going to the press, denigrating CJI and creating the impression that “Democracy is under threat”. Why democracy was not under threat when more important cases were given to junior judges in the past? Was the motive other than the expressed one?
It is not for first time that Bhushan has made charges against the incumbent CJI. He, in an interview in September, 2009, had alleged that half of the last 16 CJIs were corrupt. Ram Jethmalani had to lose his Law Minister’s berth when he was found unstoppable in his fight against the then CJI A S Anand onhis wife’s land compensation case and later on his own date of birth. There are many cases where CJIs have done favour and earned post-retirement benefits like nomination of Justice Ranganath Misrato Rajya Sabha after he had exonerated many congress leaders in 1984 Sikh riots, ex-CJI, CJI AM Ahmadi became lifetime Chairman of Union Carbide India Hospital after he quashed the charge of culpable homicide.
The ‘junior’ SC Judge Justice Arun Mishra before recusing himself from the super sensitive PIL seeking independent probe into the alleged suspicious death of CBI Judge Loya, emotionally took four rebels to task for dividing the court along the lines of senior and junior and denigrating the judiciary by going public with their grievances. The CJI, who has not yet yielded to the rebels, transferred the sensitive case of Judge Loya death oneto his own bench without including any of the rebels.
The media and social media are coming up with all sorts of innuendos without any authenticity, bringing bad name to individual judges and the institution of judiciary. Some are asking for impeachment of CJI without any specific charge of misconduct while others support total transparency in judiciary. Many charge the rebels of having ulterior motive for ‘cautioning’ the nation of “democracy under threat”.The purpose would have been better served had they or at least one of them had resigned on this issue. Justice Jasti Chelameswar is retiring just after five months, could have bell the cat.
The stalemate in SC may continue. Asthe budget session of the Parliament has commenced this sensitive issue in all probability is likely to generate heat. The opposition would corner Modi Govt for interference in judiciary.
A possible twist is yet to come. It is a convention that the outgoing CJI recommends the name of his successor (next senior most brother judge) and what would happen if Justice Misra doesn’t recommend Justice Gogoi on the ground of “trade union militant”?
The fact is that CJI has failed to provide able leadership to the judiciary and could not carry along every one “master of roaster” notwithstanding.The penchantfor group ism at Apex Court is fraught with dangers. It may spillover to HC level and lower judiciary. With people’s trust in Judiciary diminishing, every judgment delivered by the “preferred or rebel”benches would be taken with a pinch of salt. Still, it is the time for the Judges to show maturity and sagacity to sort out their differences and conduct in a manner that leaves no suspicion. After all, a judge, like Caesar’s wife, must be above suspicion. Otherwise, who will judge the Judges? Not, at least by the handful of motivated activists and “tukre”gang!