By alerting the nation that ‘democracy was in danger’, the quartet of judges has upheld constitutional values at a time when the rule of law faces unprecedented attack.
The Lingering Question: Will Justice Gogoi Be Superseded?
Come October, and the question that everyone will be asking is this: Will Justice Ranjan Gogoi be superseded? That is the time when the current Chief Justice of India, Dipak Misra, retires. I am no astrologer, and cannot predict this, but if this comes to pass, its consequences can be anticipated. If Justice Gogoi becomes the next Chief Justice of India, many things might change: the Master of the Roster might be replaced by a system which is transparent and rational; several decisions of the court, which are patently erroneous, might be reviewed — particularly the politically sensitive ones; several petitions might be filed in an election year challenging individual elections, with cases being assigned to the senior-most judges. This may seem like a nightmare for the government of the day.
If on the other hand, if the outgoing Chief Justice does not recommend Justice Gogoi, but instead picks Justice Sikri as next Chief Justice of India — a proposition that looks increasingly likely — the remaining three (Justice Jasti Chelameswar has retired) may resign. The Collegium would then consist of Justice Sikri, Justice Bobde, Justice Ramanna, Justice Arun Mishra and Justice Rohinton Fali Nariman, until March 2019. Thereafter, Justice Bhanumathi, Justice Lalit, Justice Khanwilkar and Justice DY Chandrachud would constitute the Collegium. Two of them are potential Chief Justices, and one often named in the annexure (see below). Of course, it is an open question whether Justice Sikri would consider it ethical to accept the position, superseding Justice Gogoi. But by that logic, the question can be asked of every judge of the Court. Either way, we are in for difficult times.
How Did Things Reach This Sorry State?
On Jan. 12, 2018 after the historic conference of the four senior-most judges — namely Justice Jasti Chelameswar, Justice Ranjan Gogoi, Justice Madan Bhimarao Lokur and Justice Kurian Joseph — the dissenting foursome released a letter in which there were two primary allegations against the CJI: first, that matters were being assigned to “benches of preference”, and second, that the Memorandum of Procedure for appointment of judges was not being finalised by successive CJIs, leading to gross interference by the Executive into the Judiciary. The Attorney General KK Venugopal famously said soon after that all was well with the Judiciary and that the judges had made their peace with each other. Anticipating the hard times, I had then said that the “Supreme Court was sitting on an active volcano”. It seems my prediction has, unfortunately, come true.
It has been a slow-burning process, the pattern of which is now clear. The deadly cocktail of allegations of corruption against the CJI which went un-investigated, the failure to finalise the MoP for appointment of judges, and the suspicion that sensitive cases were being assigned to “benches of preference” — have collectively resulted in the loss of legitimacy of the Judiciary in the public eye, creating a sense of despondency among us.
Those Who Blew The Whistle
The significance of the press conference cannot be overstated. I believe the four judges were ‘insider whistle-blowers’, protecting the interest of the judiciary as an institution, alerting us to the fact that “democracy was in danger”. I believe that we live in the age of the insider-whistle-blower: only the judiciary can save itself from itself. Edward Snowden and Christopher Wylie of Cambridge Analytica were the people who had similarly alerted us to the systemic threats from rotting institutions. The four judges have continued that legacy, a curious 21st-century trait that’s fast becoming a meaningful pattern.
How The Judge Loya Case Precipitated The Press Conference
The historic press conference by the fearless four was held on the day the Loya case was listed for hearing before a bench presided over by Justice Arun Mishra. I was present in court and witnessed the proceedings.
On the very first day, Justice Mishra asked: “Who is appearing for the State of Maharashtra?” Harish Salve rose with his larger-than-life frame, his arms folded in front of him in his characteristic style, and said: “I am.” Justice Mishra then said: “Produce the post-mortem report on the next date, adjourned to Monday”, and Salve promptly said, “Yes, my Lord”. I pointed out that a petition was pending in the Bombay High Court, and hence there was no need for the Supreme Court to entertain the petition, to which Justice Arun Mishra said: “We are not passing any order which will affect the High Court proceedings.” This was a Friday. The proceedings concluded at about 12:30 p.m. and as I walked out into the corridor, loud whispers on the proposed press conference came to my ears. I knew at once this was something huge, something staggering. At the press conference, the Judges were asked why they chose that day for the conference: was it because the Loya case was listed? The answer came from Justice Gogoi, a man of few words, who nodded his head and said: “Yes”.
Five months later, we are still sitting on a live volcano.
There is still a mystery over how benches are constituted, despite the publication of a so-called roster.
Judges are disqualified from hearing certain matters, such as the petition challenging the refusal by the Vice President of India to admit the impeachment motion against the CJI; letters are being written by Collegium judges to each other, indicating that they are not communicating in person; and the re-recommendation to appoint Justice KM Joseph has not yet gone to the Government from the Collegium.
While the press conference was a call to action to the people of the country, the subsequent inaction of the Collegium to resend the name of Justice Joseph is a self-inflicted wound. As former Chief Justice RM Lodha pointed out, splitting the recommendation to appoint two judges and appointing only one, hits at the “soul of the independence of the Judiciary”.
Meanwhile, there are rumours that Justice Bhushan Gavai, who spoke to the press to assure them that there was nothing suspicious about the Dec. 1, 2014 death of CBI Special Court Judge Brijgopal Harkishan Loya in Nagpur, is likely to be appointed to the Supreme Court of India.
If that happens, it will probably be for the first time in Indian legal history that a judge who figured prominently, almost in the capacity of a witness, in a pending litigation, will be appointed a Supreme Court judge, ostensibly because the government is concerned that there is no Scheduled Caste/Scheduled Tribe judge in the apex court, and he will be the chosen one.
Notwithstanding that Justice Gavai is junior to many others in the High Court and there are already several judges from the Bombay High Court in the Supreme Court.
Corruption Within The Judiciary
Corruption allegations against judges are piling up thick and fast. It was the tape-recorded conversations between a retired judge — Justice IM Quddusi — and clients, and his subsequent arrest with huge amounts of cash, which began the demand for an inquiry on the suspicion that he might have been trying to bribe the Chief Justice of India, Dipak Misra. All this could have been put to rest if the case against Quddusi had proceeded. For mysterious reasons, no charge sheet has been filed to date. Justice Narayan Shukla of the Allahabad High Court has been found guilty of taking bribes for delivering judgments in the very same case relating to Prasad Medical Trust, yet the report against him has not been made public. He has been suspended from work, but the recommendation for his impeachment has not moved forward.
There is a perfect cover-up, it would seem. After all, if either of these cases had been properly investigated and prosecuted, the air would have been cleared and the allegations against the CJI shown to be baseless, if indeed they are baseless. It is precisely this failure to investigate the suspicion in relation to the allegations against the CJI, which has led to the impression that the Executive is controlling the Judiciary. After all, investigating agencies are at the mercy of the government of the day. Hence, the only possible remedy is that an effective and transparent mechanism to deal with complaints of corruption against the judges now be put in place by the judges themselves.
The allegations in the letter of four senior-most judges are of a serious nature and some of them at least form the basis of ‘impeachable misbehaviour’ warranting a full-fledged inquiry. Most serious among the allegations is the purported assignment of cases to “benches of preference” and the failure to finalise the MoP giving the government an upper hand in the matter of appointment of judges to the High Courts and the Supreme Court. There is no mention of corruption in the letter, but both these allegations could form the basis of “misbehaviour” within the meaning of Article 127 of the Constitution of India.
The allegation that Chief Justice(s) have assigned matters to “benches of preference” also questions whether the judges to whom the cases were assigned may have been deciding the cases to achieve a particular predictable outcome. The allegation pertains to the assignment of “sensitive” cases to particular judges.
In an attempt to obfuscate the issue, some have questioned whether there is anything like a “sensitive” case. There is. All cases do undoubtedly require the total attention of the presiding judge, but some cases test the will of the judge to stand up against the might of the government more than others. At a recent public event, I was told that those of us who criticised judges, were being selective.
When Justice DY Chandrachud wrote the Right to Privacy judgment, we praised him, but when he wrote the Loya judgment, we condemned his judgment.
My answer was: The privacy judgment did not have the potential to destabilise the government; the Loya judgment did have that potential to do that. Amit Shah was discharged from the CBI case relating to the murder of Sohrabuddin Sheikh, his wife Kausar Bi, and the witness to the abduction Tulsiram Prajapati, as he captured national politics in a big way, anointed the BJP national president as he was in July 2014. Despite that enormously significant position within the ruling party, the craving was for a 'clean chit' — something only the Judiciary could provide. So, the Loya case was a “sensitive case” and those are the kind of cases wherein a judge’s mettle and his/her commitment to the oath of office is tested.
One sees the name of Justice Arun Mishra recurring in the list while the names of the senior judges are completely missing. Justice Aggarwal has now retired, but his name too recurred in the assigned “benches of preference”.
The four senior-most judges were not soliciting work for themselves, not regretting the fact that “sensitive” cases were not being assigned to them. They were rather worried that “democracy [was] in danger”. That was because the power of the Master of the Roster was being exercised in a manner to give preference to some judges over others in the matter of sensitive cases.
Failure Of The Impeachment Motion
The allegations made against the Chief Justice of India required and still require an independent investigation. It is irrelevant that an impeachment motion has failed due to the order passed by the Vice President, which is not in consonance with his constitutional role. The fact remains that the allegations are outstanding and have not got the investigation they deserved.
History tells us that very rarely it is possible to seek justice against sitting ministers or judges for the obvious reason that they, while in office, control the evidence against them and could even destroy or make them disappear. It is for this reason that there have always been demands for political justice before there can be justice in law. When an allegation is made against a minister or a sitting judge, the person has to step aside to be suspended, or to resign while the inquiry in progress.
To uphold the rule of law which he is sworn to do, the CJI should have abstained from work and allowed the law to take its course.
He failed, and with it, the judiciary failed the nation.
Role Of The Bar And Its Distasteful Politicisation
The failure of the impeachment motion is not something to celebrate; rather it shows the failure of a constitutional system of accountability of judges, and the need to look for options. Jurists of yesteryears have said: “Lump it”. But not a single arbitrary step by the judiciary or the government has gone unchallenged by a handful of people with a purpose.
Let me revisit the controversy related to the Master of the Roster, and the arbitrary assignment of sensitive cases to “benches of preference”. But the issue really is not who the Master of the Roster is, but how he came to decide that he was the Master of the Roster. Thereafter, what happened in the court on that November day when the decision was taken, that too with hardly any notice to the petitioner, or the petitioner’s lawyer, was, to say the least, shocking. A group of lawyers headed by the then President of the Supreme Court Bar Association, RS Suri, led the charge against the petitioner’s lawyer, Prashant Bhushan, in defence of the Chief Justice of India. A greater show of sycophancy has not been seen in court in recent memory.
That the Chief Justice of India permitted and encouraged such unruly behaviour in court by interlopers — is the single most damaging act, which undermined the independent judiciary more than all others that went before it.
I have often said that the judiciary cannot collapse and succumb to the wishes of the government unless the Bar collapses first.
It is my firm belief only a vigilant Bar can safeguard the independence of the Judiciary against an overpowering Executive.
This singular instance, aided and abetted by the CJI, demonstrates how the Bar has lost its conscience and failed to discharge its historic role. Lawyers, too, are lured by a political office and monetary gain. Leaders of the Bar are seen changing political parties as often as they change their shirts. Gaurav Bhatia, once a spokesperson of the Samajwadi Party, and the then Vice President of the Supreme Court Bar Association, was seen every day on TV channels bad-mouthing the BJP. Soon he was seen on the same TV channels, bad-mouthing the SP as the spokesperson of the BJP. The politicisation of the Bar is complete. At one point, both the President and the Vice-President of the Supreme Court Bar Association, RS Suri and Gaurav Bhatia, were members of the ruling party, the BJP. In such a situation, it was only a question of time before the judiciary collapsed.
To Thank Or To Apologise To Our Judges?
This brings me to the Karnataka elections and the tumultuous couple of days of resort politics that followed the declaration of results, which included knocking on the doors of the Supreme Court as the “last resort”. Following a midnight listing of a petition jointly filed by the Congress and Janata Dal (Secular) before a bench constituted by the Chief Justice of India, the case was presided over by Justice AK Sikri, strictly in accordance with procedure established by law. The Justices resisted the invitation to give a substantive decision on the validity of the order of Karnataka Governor Vala, who had invited BJP’s BS Yeddyurappa to be sworn in as the Chief Minister and form the government. The importance of the procedure established by law in upholding the rule of law has been underestimated. It is, however, that exact procedure which allowed the political process to play out in a democratic manner. This is the essence of the rule of law — to allow the law to take its own course without political interference.
Many opinion makers have suggested that the Congress should now apologise to the Chief Justice of India. I ask, for what? For doing his duty in constituting a Bench? The Chief Justice of India had no option but to constitute a bench, so blatant was the subversion of the Constitution at so critical a time. When judges decided in accordance with the law, they were merely doing their duty.
However, when they err, and some of them have, it is our duty to correct them. Judges do not give judgments for gaining our gratitude; though they get it when well deserved.
In Defence Of The Constitution Of India
The agenda of the government of the day seems to be packing the judiciary with judges of their choice. This is their long-term agenda, regardless of who comes to power in 2019. It is no secret that the ruling party has a Hindutva agenda to implement. The Judiciary itself legitimised this agenda when it held that Hindutva “is a way of life”, as far back as in 1995. The way of life has come back to haunt the judiciary.
Failure to deal with cow vigilantism, beef bans, appointment of a saffron-clad Yogi as the Chief Minister, encounter deaths of Muslims in that same state of which the Yogi is the Chief Minister, i.e., Uttar Pradesh, rape and murder of a minor in Kathua as part of ethnic cleansing of a tribal nomadic Muslim community, redefining citizenship rights — are all evidence of the erosion of constitutional values.
I was alarmed when I heard a BJP ideologue, a ‘one-time Marxist’, say on TV: “After all, what is the Constitution, but a set of rules?”
No, it is not a mere set of rules. It is a set of values, which every judge is sworn to uphold. As the government seems determined to bring about the Hindutva state from within, it is this set of values that will test the independence of the judiciary in the days.
Annexure: Assignment Of Benches In ‘Sensitive’ Cases: A Timeline
1. Common Cause v. Union of India
Interlocutory Application No. 3 and 4 of 2017 in Writ Petition (Civil) NO. 505 Of 2015.
Plea for court-monitored special investigation team to probe into bribery allegations against Prime Minister Narendra Modi on the basis of documents seized during the raids in business houses — Sahara and Birla.
Case was initially heard by Justice JS Khehar and Justice Amitava Roy. Later Khehar J. recued since Petitioner’s counsel Mr. Prashant Bhushan submitted that appointment file of Justice Khehar as CJI was pending in PMO. In the meantime he was appointed as CJI. He constituted bench and assigned this case to Arun Mishra and Amitava Roy JJ.
Heard and dismissed on January 11, 2017.
2. In Re: Dangwasmai Pul case.
A letter was sent on the administrate side of the Supreme Court seeking CBI inquiry into allegations of bribe made by Kalikho Pul’ in his suicide letter. Surprisingly then CJI Khehar listed this case on the judicial side before the bench consisted of AK Goel and UU Lalit, JJ.
Heard and dismissed as withdrawn on February 23, 2017.
3. A PIL titled CJAR v. Union of India filed through advocate Prashant Bhushan seeking court monitored SIT probe into the role of sitting judges of higher judiciary against their alleged involvement in MCI scam, mentioned on November 8, 2017 before Chelameswar and Abdul Nazeer, JJ. Court directed to list the matter on November 10, 2017 before the appropriate bench.
This matter then shown in the advance list for November 10, 2017 before a bench consisting of AK Sikri and Ashok Bhushan JJ.
On November 9, 2017, Kamini Jaiswal filed another PIL on the same issue. It was mentioned by Senior Advocate Dushyant Dave before the bench consisting of J. Chelameswar and Abdul Nazeer, JJ. Court ordered to list the matter before five senior most judges.
On November 10, 2017, the PIL filed by CJAR came up for hearing before the bench consisting of AK Sikri and Ashok Bhushan JJ and the matter was referred to the CJI for passing appropriate order of listing of the case.
On the same very day i.e. November 10, 2017, CJI, Shri Dipal Misra in view of the order passed by Justice Sikri’s bench, constituted five judge benche consisting of himself, RK Agarwal, Arun Mishra, Amitava Roy and AM Khanwilker, JJ.
Heard on the same day. Order dated November 9, 2017 passed by the bench of Justice Chelameswar was annulled. Master of Roster principle reiterated.
Five judge bench directed the CJAR case to be listed after two weeks for the hearing on merits.
On November 14, 2017, PIL filed by Kamini Jasiwal was dismissed by a bench consisted of RK Agarwal, Arun Mishra, AM Khanwilker, JJ.
On December 1, 2017, same three judge bench i.e. RK Agarwal, Arun Mishra, AM Khanwilker, JJ., dismissed the PIL filed by CJAR. Imposed costs of 25 lakhs.
4. 2G spectrum case came up before Justice Chelamswear on November 1, 2017 and was to come up on November 6, 2017 before him. However, it was deleted and upon mentioning ordered for listing before appropriate Bench as per roster. The matter was thereafter listed before CJI Court on November 13, 2017 and upon recusal by Justice AM Khanwilkar and Justice DY Chandrachud, the matter was placed before the Bench presided by Justice Justice Arun Mishra on November 17, 2017.
5. Common Cause v. Union of India
Appointment of Rakesh Ashtana as Special Director CBI, was challenged for the violation of principles of impeccable and intuitional integrity. Asthana’s name had surfaced in a diary obtained by the CBI from the premises of Gujarat-based Sterling Biotech in August. This suggested that Asthana had accepted bribes from the company, the petitioners alleged.
On November 13, 2017, matter came up for hearing before a bench consisting of Ranjan Gogoi and Navin Sinha, JJ. Justice Navin Sinha recused and matter was ordered to be listed on November 17, 2017.
The matter was listed on November 17, 2017 before RK Agrawal & Abhay Manohar Sapre JJ. On November 17, 2017 Justice Navin Sinha was not sitting with Jutsice Gogoi and therefore matter ought to have been listed before the Bench presided by Justice Gogoi.
On November 28, 2017, Court delivered the judgment dismissing the PIL, and upheld the appointment.
6. On January 12, 2018, press conference by four senior most judges.
They released a letter. Highlighted assignment of cases to the benches of preference by Chief Justices of India. Also, the non finalization of MoP. On this day judge Loya case was listed before Justice Arun Mishra.
7. On January 12, 2018, at 10:30 a.m. Tehseen Poonawala’s PIL seeking probe into judge Loya’s death was listed as item no.52 before the bench presided over by Justice Arun Mishra.
Around 12:30 p.m., hearing concluded.
Around 1:30 p.m., press conference by four senior most judges held.
8. Subramanian Swamy v. Delhi Police Commissioner.
It is a SLP against Delhi High Court order dismissing PIL seeking probe into death of Sunanda Pushkar.
On February 23, 2018, bench comprising of Arun Mishra and AM Khanwilker, JJ. issued notice. Arguments on the maintainability of PIL yet to be taken place. Matter is pending.
9. On March 23, 2018, Justice Chelamswear wrote CJI against the Chief Justice of Karnataka High Court and highlighted the inaction of government on sitting over the recommendations of collegium. He sought for full court on judicial side.
10. On April 7, 2018, Justice Chelamswear attended event organized by Harvard Club of India where he said he still did not understand what was so wrong in his order that it had to annul by the five judge bench.
11. On April 10, 2018, Justice Kurian Joseph wrote to the Chief Justice of India showing his anguish over government sitting over name of Justice KM Joseph.
12. On April 20, 2018, 64 member of Rajya Sabha submitted notice of impeachment of the Chief Justice of India.
13. On April 23, 2018, Vice President refused to admit the motion. Passed a speaking order.
14. On April 26, 2018, Government of India notified appointment of ndu Malhotra and sent back the name of Justice KM Joseph to the Collegium for reconsideration.
Indira Jaising, Senior Advocate, mentioned on the same day i.e. April 26, 2018, the case before CJI and sought stay on the warrant of appointment of Ms. Indu Malhotra. Request was turned down. Permission to file fresh petition on the issue of segregation was though allowed.
15. On April 28, 2018, PIL filed by GD Inamdar in the Supreme Court challenging segregation of name of Justice K.M. Joseph. This case has not yet come for hearing.
16. Two MPs from Congress challenged rejection of notice of impeachment by Rajya Sabha Chairperson.
On May 08, 2018, matter came up before five judge constitution bench consisting of AK Sikri, SA Bobde, NV Ramana, Arun Mishra and AK Goel JJ. Senior Counsel, Kapil Sibal on behalf of the Petitioner withdrew the petition and accordingly the same was dismissed.
On May 09, 2018, Justice Chelamswear turned down invitation of his farewell function. He retired on June 22, 2018.
After his retirement, collegium will be composed of CJI, Justice Ranjan Gogoi, Justice MB Lokur, Justice Kurian Joseph and Justice AK Sikri.
Indira Jaising is an advocate and former Additional Solicitor General practicing in the Supreme Court of India.
The views expressed here are those of the author’s and do not necessarily represent the views of BloombergQuint or its editorial team.