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Loya Case the Tipping Point, Four SC Judges Say Democracy Is in Danger

“Democracy will not survive without a free judiciary.”

Left to right: Justices Kurian Joseph, Jasti Chelameswar, Ranjan Gogoi and Madan Lokur address the media at a news conference in New Delhi. Credit: Reuters

Left to right: Justices Kurian Joseph, Jasti Chelameswar, Ranjan Gogoi and Madan Lokur address the media at a news conference in New Delhi. Credit: Reuters

New Delhi: In an unprecedented move, four justices of the Supreme Court – the senior-most justices after the Chief Justice of India – decided to hold a press conference to talk about the issues plaguing the apex court, triggered by issues surrounding a case on the death of special CBI Judge B.H. Loya and the roster of justices at the Supreme Court.

This is the first time in the history of the Supreme Court that something of this kind has happened. The press conference was held at the residence of Justice J. Chelameswar, and also addressed by Justices Ranjan Gogoi, Madan B. Lokur and Kurian Joseph. The press conference was held while the Supreme Court was in session and the day after two important appointments to the apex court were made.

On being asked repeatedly, the Justice Gogoi told journalists that the press conference was prompted by issues surrounding the death of special CBI Judge B.H. Loya.

Justice Chelameswar addressed the proceeding, calling it an “extraordinary” event in the history of India and its judicial institutions. “Sometimes, the administration of the Supreme Court is not in order. There are many things less than desirable that have happened in the last few months… As senior-most justices of the court, we have a responsibility to the nation and institution. We tried to persuade the CJI that some things are not in order and he needs to take remedial measures. Unfortunately, our efforts failed. We all believe that the SC must maintain its equanimity. Democracy will not survive without a free judiciary.”


Also read: Death of a Judge – What We Know, What We Don’t Know


“This morning we went to the CJI with a specific request but unfortunately we were denied,” Chelameswar continued. “So we were left with no choice but to take it to the nation. We don’t want it to be said that we don’t care about the institution or the nation. About four months ago, all of us gave a signed letter to the CJI. We wanted a particular thing to be done in a particular manner. It was done, but it raised even more questions on the integrity of the institution. Inspite of four senior-most colleagues of the CJI going to him, there was no change.”

“We are discharging our duty to the nation by telling you what’s what,” Justice Gogoi added.

The justices also said that they were not engaging in politics.

The justices did not give any specifics on what they are seeking on what issues they raised. However, they said they would make the letter they submitted to the CJI available to the press at the event and said everything they wanted to say had been presented in that. “There have been instances where case 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 (emphasis in original).”

“In that decision [on Karnan] (referred to in R.P. Luthra), two of us observed that there is a need to revisit the process of appointment of judges and to set up a mechanism for corrective measures other than impeachment. No observation was made by any of the seven learned judges with regard to the Memorandum of Procedure. Any issue with regard to the Memorandum of Procedure should be discussed in the Chief Justices’ Conference and by the Full Court. Such a matter of grave importance, if at all required to be taken on the judicial side, should be dealt with by none other than a Constitution Bench,” the letter continues.

Writing in the Indian Express on Friday, senior advocate and former president of the Supreme Court Bar Association Dushyant Dave raised many of the same issues. His article also gave a list of cases where he thought the bench formed by the CJI was questionable. Dave wrote:

Even though empowered with the order of November 10, 2017, does the Chief Justice of India possess absolute and arbitrary powers to “constitute the Benches of the Court and allocate cases to the Benches so constituted”? Of course not. He is as much bound by the Rule of Law as anybody else. If there is one principle firmly rooted in our constitutionalism, it is: “Be you ever so high, law is above you.”

Yet, a little insight into the functioning of the Supreme Court today will reveal that the Chief Justice has been exercising his powers in an opaque manner. Several instances reflect that the Constitution Benches are constituted by including certain judges and excluding certain others. It is not my endeavour to criticise or attack any individual judge. But the fact remains that senior judges and even judges known for their proficiency in certain branches of law are excluded from such benches.

The  four justices’ entire letter is reproduced below:

Dear Chief Justice,

It is with great anguish and concern that we have thought it proper to address this letter to you so as to highlight certain judicial orders passed by this Court which has adversely affected the overall functioning of the justice delivery system and the independence of the High Courts besides impacting the administrative functioning of the Office of the Hon’ble Chief Justice of India.

From the date of establishment of the three chartered High Courts of Calcutta, Bombay, and Madras, certain traditions and conventions in the judicial administration have been well established. The traditions were embraced by this Court which came into existence almost a century after the above mentioned chartered High Courts. These traditions have their roots in the anglo saxon jurisprudence and practice.

One of the well settled principles is that the Chief Justice is the master of the roster with a privilege to determine the roster, necessity in multi-numbered courts for an orderly transaction of business and appropriate arrangements with respect to matters with which member/bench of this Court (as the case may be) is required to deal with which case or class of cases is to be made. The convention of recognising the privilege of the Chief Justice to form the roster and assign cases to different numbers/benches of the Court is a convention devised for a disciplined and efficient transaction of business of the Court but 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 the country that the Chief Justice is only the first amongst the equals – nothing more or nothing less. In the matter of the determination of the roster there are well-settled and time honoured conventions guiding the Chief Justice, be it the conventions dealing with the strength of the bench which is required to deal with a particular case or the composition thereof.

A necessary corollary to the above mentioned principle is the members of any multi-numbered judicial body, including this court, would not arrogate to themselves the authority to deal with and pronounce upon matters which ought to be heard by appropriate benches, both composition wise with due regard to the roster fixed.

Any departures from the above two rules would not only lead to unpleasant and undesirable consequences of creating doubt in the body politic about the integrity of the institution. Not to talk about the chaos that would result from such departure.

We are sorry to say that off late the twin rules mentioned above have not been strictly adhered to. There have been instances where case having far-reaching consequences for the Nation and the institution had been assigned by the Chief Justices of this court selectively to the benches “of their preference” without any rationale basis for such assignment. This must be guarded against at all costs.

We are not mentioning details only to avoid embarrassing the institution but note that such departures have already damaged the image of this institution to some extent.

In the above context, we deem it proper to address you presently with regard to the order dated 27 October, 2017 in R.P Luthra vs Union of India to the effect that there should be no further delay in finalising the Memorandum of Procedure in the larger public interest. When the Memorandum of Procedure was the subject matter of a decision of Constitution Bench this Court in Supreme Court Advocates-on-Record Association and Anr. Vs. Union of India [(2016) 5 SCC 1] it is difficult to understand as to how any other Bench could have dealt with the matter.

The above part, subsequent to the decision of Constitution Bench, detailed discussions were held by the Collegium of five judges (including yourself) and the Memorandum of Procedure was finalised and sent by the then Hon’ble the Chief Justice of India to the Government of India in March 2017. The Government of India has not responded to the communication and in view of this silence, it must be taken that the Memorandum of Procedure as finalised by the Collegium has been accepted by the Government of India on the basis of the order of this Court in Supreme Court Advocates-on-Record Association (Supra). There was, therefore, no occasion for the Bench to make any observation with regard to the finalisation of the Memorandum of Procedure or that that issue cannot linger on for an indefinite period.

On 4 July, 2017, a Bench of seven Judges of this Court decided In Re. Hon’ble Shri Justice C.S. Karnan [(2017) 1 SCC 1]. In that decision (referred to in R.P.Luthra), two of us observed that there is a need to revisit the process of appointment of judges and to set up a mechanism for corrective measures other than impeachment. No observation was made by any of the seven learned judges with regard to the memorandum of procedure.

Any issue with regard to the Memorandum of Procedure should be discussed in the Chief Justices Conference and by the full court. Such a matter of grave importance if at all required to be taken on the judicial side should be dealt with by none other than a Constitution bench.

The above development must be viewed with serious concern. The Hon’ble Chief Justice of India is duty bound to rectify the situation and take appropriate remedial measures after a full discussion with the other members of the Collegium and at a later stage, if required, with other Hon’ble Judges of this court.

Once the order arising from the issue dated 27 October, 2017 in R.P. Luthra vs. Union of India mentioned above, is adequately addressed by you and if it becomes so unnecessary we will apprise you specifically of the other judicial orders passed by this Court which would require to be similarly dealt with.

With kind regards,

CHELAMESWAR
RANJAN GOGOI
MADAN B. LOKUR
KURIAN JOSEPH

  • ashok759

    A process of regeneration and renewal has started within India’s most respected, trusted institution.