'Black Day for Judiciary': Legal Fraternity Weighs in on Unprecedented Move by Four SC Judges

Though most welcomed the historic move, a few raised questions about the vagueness of the complaint and said the judges should have been more specific.

“There is no transparency and no fairness in the assignment of cases to judges,” says lawyer Colin Gonsalves. Credit: PTI

New Delhi: For highlighting the inherent flaws in the judicial system, the judicial and legal fraternity has welcomed the historic move made by four senior Supreme Court judges on 12 January.

The four judges – Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph – gave a press conference where they raised problems in the justice delivery system and assignment of cases, especially the manner in which the sensitive case of CBI judge BH Loya’s death was handed over to a bench of junior judges.

However, some lawyers and judges have questioned the vagueness of the complaint especially in the light of the fact that the matter would ultimately have to be resolved within the judiciary.

As Justices Chelameswar, Gogoi, MB Lokur and Joseph, who are also part of the five-member collegium headed by Chief Justice Dipak Misra, also released a letter addressed to him after informing the media about their intent, several senior lawyers lauded the move. Their action assumed significance since the apex court today also took up for consideration petitions requesting an independent probe into the death of judge Loya, who was hearing the Sohrabuddin Sheikh fake encounter case of 2004, in which various police officers and BJP chief Amit Shah are named as parties.

‘A black day for the judiciary’

Reacting to the move, senior advocate Kamini Jaiswal said, “It is very unfortunate that it had to come down to this. It is a black day in the judiciary, but I could see it coming. It was painful coming to the Supreme Court today. Nobody questions this thing about the chief justice being the master of roster, but then it has to be a roster and it has to be category-wise.”

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

Stating that “all these years, category-wise allocation of judges was the norm – you had one bench dealing with a certain matter and the others with other,” she said that it is strange that now, “the most important matters go to some particular court, ignoring the senior judges. Do you think they are nobody? Senior judges were being humiliated each day. It started with this humiliation of court No. 2 (Justice Chelameswar) in my matter where he thought that it was a serious matter and the five seniormost judges should hear it. He picked up a bench and they dismissed it.”

“How can it be so contradictory?” Jaiswal asks. “Either it is important or not important. So I think it (such protest) was just coming.”

Cases being handed to ‘benches of preference’

Since the letter of the four judges highlighted how “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”, Jaiswal too agreed with the view that “this must be guarded against at all costs”.

“The matters are picked up and put before different benches depending on the consequence they want. You know, how the judge will deal with it. You have the experience. Even in the Kalikho Pul ‘suicide’ case, the case was sent to a court of a relatively junior judge. But why? This was a serious case. Even in the Sahara-Birla diary case, in which very sensitive and important people were involved, the matter was not sent to the senior judges,” she said, pointing to some of the instances of such alleged discretion.

‘Now judges are either for the institution or themselves’

On whether the issue has left the judiciary divided, Jaiswal said, “It is now a case of some judges being for the institution and some judges for themselves. It started happening over a year ago. Before that there was always some little dispute within but it did not reach such a depth. I think it just became impossible to survive in this situation. You could see the institution crumbling under pressure. And so something had to be done and the people need to know.”

With the Centre appearing to be distancing itself from the issue, Jaiswal charged that this is what the government wants. “They want a committed judiciary, they are more than happy,” she said, adding that at least now the people know what is happening.

‘CJI should have acted on MoP’

On the issue of the Memorandum of Procedure (MoP) being finalised by the collegium of five judges in March 2017 and the Centre not giving any response on it, Jaiswal said it would have played a part in the day’s developments.

“You send the memorandum of procedure and eight-nine months have passed. But since, you are so beholden to the government to take a firm stand.” In this, she said the Chief Justice’s role comes into play, because the other judges from No. 2 to No. 5 have now come out and stated their reasons.

On Justice Gogoi taking over as the next Chief Justice in October, Jaiswal said “that is very important”. But she said the four judges could not have waited any more because ten months in the life of an institution is a lot.

“Every brick would have been gone by then, the institution would have been in a shambles. Every day is important. I hope there is an early solution,” she said.

Also read: Watch: What Does the SC Judges’ Statement Mean for the Judge Loya Case?

Holding similar views, senior advocate Colin Gonsalves said, “I applaud the four judges for doing what they did. It is the single most decisive act of the judiciary to protect its independence. It is a blow to the executive that has tried to interfere with the judiciary again and again.”

What the protest by certain sections of lawyers and judges signifies, he said, is that there is no transparency and no fairness in the assignment of cases to judges.” The larger issue is executive interference. Both these must come under control.”

‘Whole judiciary should fight back against interference’

On the specifics of what needs to be done, Gonsalves said, “First of all, assignment of cases to judges must be done in a very transparent and a fair manner.”

With there having been “concerted and numerous attempts by the executive to intimidate judges – such as through interception of phone calls, transfer of judges, and Intelligence Bureau preparing reports against them”, he stressed the need for curbing this.

Finally, he also spoke about how “the executive has been firing its big guns against lawyers who are going to become judges and anyone perceived to be independent is being shot down”. This interference has reached its pinnacle, he lamented.

Noting that “the four judges have started this but the judiciary as a whole has to fight back against this interference”, Gonsalves said that “lawyers had also been perturbed for a long time and there has been a lot of talk in the corridors of the SC. It is not healthy for these grievances to not be heard.”

But he added, with good measure, that “these grievances are not new to only this tenure of this chief justice”.

As for the Justice Loya case hearing which precipitated the present turmoil, he said, “this is a classic case of the Supreme Court having to deal with a case in a transparent manner. A fearless investigator needs to be appointed to find out the truth of his untimely demise.”

‘Unprecedented step” in view of misuse of powers

Senior advocate Prashant Bhushan concurred that “somebody had to confront the situation”. He told news agency ANI that “the CJ(I) is blatantly misusing his powers, hence the unprecedented step.”

Bhushan who had also engaged with Misra over the issue of the apex court’s handling of his plea against him in the medical college scam case late in 2017, in which the issue of forum shopping was alleged as a second appeal was moved in a similar matter before a different bench, insisted that the four judges’ protest was “certainly a very serious development which has cast a huge shadow on the chief justice.”

‘Letter should have pointed to specifics’

Retired Supreme Court judge KS Radhakrishnan has asserted that “the power of the roster must rest with the chief justice. Or else there will be far reaching consequences”.

As for the letter written by the four judges to the chief justice, he said: “The letter has not pointed to any particular case. So I don’t think there’s any basis going to the press. There are a few cases in the limelight but we don’t know the truth.”

Justice Radhakrishnan demanded that “the four judges should come forward with full details of what exactly has happened. The damage has already been done. They could have pinpointed the exact cases in their letter. This is lacking. There might be truth. The judges should have disclosed.”

‘Episode would serve little purpose, only further malign and vilify SC’

Senior advocate Aman Lekhi, who is known for his proximity to the ruling BJP, too insisted that the episode would serve little purpose. “I think this incident does more to further malign and vilify the institution of Supreme Court. In order to be truly historic, it should have augured in a change. But by referring to this issue in a generalised manner as the judges have done, it would only lead to further speculation about rather than bring any clarity about what is to be done.”

Lekhi said, “While the concerns may be grave, the method of raising them has to be equally well considered. I feel that this is where this dichotomy of sorts is somewhere unjustified. I would have been happier if the reasons were out in the open in this case with fair amount of clarity and the objections taken. For then appropriate corrective action, which includes impeachment, could have been taken.”

He said the judges should have ensured that “the stand which is taken is seen through. It is not just enough to make accusations and allegations, present the concern and then leave it at large. The issue is serious and does require consideration, but where they fall short is that the manner would only lead to further rumour mongering and gossip.”

‘Issue is for the judges to resolve’

On the issue of the memorandum of procedure not being passed, he said, this issue pertains to the judges being in-charge of departments. “But here by their own admission they do not see eye to eye. Moreover, it deals with the inter-relationship between the judges and the government. But how how do you deal with the relationship of the judges inter se. This is something for them to resolve, you cannot put it on the government. “

Lekhi said the larger issue is of the method of appointment itself. “That is why Justice Chelameshwar was the dissenting judge in the NJAC judgment. I mean for him to talk of the memorandum of procedure with the chief justice concerned is to some extent reflection of his views there. MoP is a grave issue, something on which the government and the courts have to be on the same page. The government is liable to account and the judiciary must hold the government to account, there is no dispute about that but there is a way in which we have to move forward.”

Also read: For the Supreme Court Judges to Go Public Is Unsettling, but They Were Left with No Option

As for the allegation of certain cases being marked to certain judges, Lekhi said when such issues are raised they should be raised with specifics. “When you come out with a press statement, you have to come out with facts. You have to spell out the cases, you have to be absolutely clear what the cases were, how they were allocated, to whom they were allocated, what was the judgement. But if you just say so, there will be another person who would deny it.”

On the judge Loha case, he said, “A cryptic answer to a serious question is not something which would go with this particular occasion.”

Lack of corrective mechanism a problem

Noting that the judiciary being at each other’s throat is not right, he said, “Unfortunately, there is no corrective mechanism. That is why they are at each other’s throat which does not augur well for the judiciary.”

Lekhi said there was a history to this stand-off. “It began with the Justice Karnan case, which in my opinion was a misconceived move of the Supreme Court. The manner in which the contempt proceedings were held had certain procedural flaws. There were also other issues in it. Unfortunately, what is happening is that we have our perceptions about people and causes. So we need to see if there is a perception about the chief justice which is a reasons for this or whether there is an issue concerning the judiciary which is the reason for this. This is something which needs to be addressed.”

The lawyer said such an an important issue cannot be left for the people to decide, as was being stated. “What can an ordinary citizen decide?” he asked.