A view of Supreme Court of India in New Delhi on Friday. (Image: PTI)

Rift In Supreme Court Plunges India Into Judicial Crisis

Four senior Supreme Court judges today publicly questioned Chief Justice of India Dipak Misra for what they called selectively assigning matters of national importance to judges—an unprecedented situation that threatens to undermine the top court’s credibility.

“The efforts of the senior Supreme Court Judges to preserve the integrity of the judicial institution have failed,” Justice Chelameswar—the senior-most judge after the Chief Justice—said, in a press conference held at his home in New Delhi today. They tried to collectively persuade Misra that “certain things are not in order”, he said. “Unfortunately our efforts to persuade the CJI failed.”

Accompanying him were Justice Ranjan Gogoi—next in line to be the Chief Justice—Justice Madan Lokur and Justice Kurian Joseph. They released, to the media, copies of a letter they had written to the Chief Justice two months ago highlighting their concerns: principal among them was the selection of benches to hear matters and the procedure to appoint judges by the Supreme Court Collegium.

Never before in the world’s largest democracy have sitting Supreme Court judges gone public with their differences—let alone hold a press conference. “This must’ve been the last straw after not being able to persuade the Chief Justice regarding a bench,” Senior Advocate Arvind Datar told BloombergQuint.

“It seems that this has been brewing for quite some time. There seems to be an enormous amount of discontent within the collegium... I think it is a very sad day.”
Senior Advocate Arvind Datar

Chief Justice Misra has, so far, not publicly responded the issued raised by the judges.

Attorney General KK Venugopal said it would have been better for judges to place issues before all judges of the top court. “Supreme court judges are wise and they will resolve the matter. But the four judges should explain why matter was not placed before rest of the Supreme Court.”

‘Chief Justice Is First Amongst Equals’

Events surrounding a petition in November had indicated the first signs of a rift. The Chief Justice-led five-judge Constitutional bench had overturned an order of a two-judge bench stressing that he was the “master of the court” and had the sole prerogative to allocate matters. The petition demanded a court-monitored probe into an alleged bid to influence the outcome of a case in the top court.

In their letter, the judges said the convention recognising the privilege of the Chief Justice to form the roster and assign cases was devised for a “disciplined and efficient transaction of business of the court but (was) 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 the equals — nothing more or nothing less.
Four Judges’ Letter To Chief Justice

Datar questioned the need to allocate “important cases” to “less senior” judges instead of the top justices. Usually, when the Chief Justice is unable to take up a case, he assigns that case to the second or third Justice in the house, he said.

Senior Advocate Dushyant Dave, who had highlighted the issues in an article first published in LiveLaw.in., said he shared these concerns. “Not only my concern but a concern for many of the advocates of the Bar. But now when the top four judges apart from the Chief Justice of India have also expressed similar concerns, it is very grave indeed.”

Latest Flashpoint

Justice Chelameswar and Justice Gogoi, who addressed the press, said they met the Chief Justice again today regarding the assignment of a case. When asked by a reporter present at the press conference if it related to the death of CBI Special Court Judge BH Loya, who was hearing a politically sensitive case, Justice Gogoi said, ‘Yes’, wire agency ANI reported.

Judge Loya was hearing a matter involving the death of Sohrabuddin Sheikh in a police encounter when Amit Shah—now the president of the ruling Bharatiya Janata Party—was the minister of state for home in Gujarat. Shah was exonerated by the judge who replaced Loya.

The Supreme Court, hearing a petition filed by a journalist seeking a probe into Loya’s death, today asked the Maharashtra government to produce all documents by Monday.

Selection Of Judges

The judges said in their letter that there should be no further delay in finalising the Memorandum of Procedure for the Collegium to select judges, in the larger public interest. The procedure was finalised and sent by former Chief Justice JS Khehar to the government, which has not responded.

“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”, the judges said in the letter. It referred to the petition filed by lawyer RP Luthra against the appointments made to the higher judiciary in the absence of the revised procedure, which the court had rejected.

The procedure was finalised after a Constitution bench of the Supreme Court struck down the National Judicial Appointments Commission that the Narendra Modi government enacted to replace the Collegium system of selection. Justice Chelameswar was the lone dissenting voice on that bench.