It is a development that is both momentous and unfortunate. The press conference held by four senior judges of the Supreme Court has exposed an unprecedented level of dissension in the top echelons of the judiciary. It is regrettable that the banner of revolt has been raised in such a public way against the Chief Justice of India, Dipak Misra. Regardless of who is right in the current dispute over the administrative functioning of the CJI, the reverberations of what took place on Friday will not easily subside and will be felt for a long time to come. There was ample evidence over the last few months that the highest court was in a state of ferment; the question is whether it could have been handled internally rather than be dragged into the open like this. Although Justices J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph — the seniormost judges after the CJI — did not reveal too many details, it is clear that their grievances are rooted in their perception that Justice Misra is misusing his administrative powers to assign cases “selectively”, disregarding conventions on allocation of judicial work. They have added for good measure that cases with far-reaching consequences for the nation and the institution are being assigned to junior judges and Benches “of their preferences”, a suggestion that is being read by some as an ominous reference to an unknown external hand. It ought to be underscored here that the Chief Justice is indeed the master of the roster; even the four judges concede that this is a well-settled law, one that is reflected in a Constitution Bench judgment in 1998. While accepting the rule that the Chief Justice alone can decide the composition of Benches and allot judicial work, they allege that Justice Misra is departing so far from set conventions that it would have “unpleasant and undesirable consequences”, ultimately casting a doubt on the integrity of the institution itself. Logically, this is an internal matter of the judiciary, one that is best settled through deliberations in a full court meeting of all the Supreme Court judges themselves.
The letter written by the four judges to the Chief Justice, which became available to the media, and the manner in which the press conference played out, suggest that the grievances go much deeper than what was written or said. The germ that led to the outbreak of the current conflict could be the controversial Prasad Education Trust case, in which the petitioners alleged that some individuals were plotting to influence the Supreme Court. In an unusual order, a Division Bench headed by Justice Chelameswar went ahead to delineate the composition of the Bench to hear the case, in which charges of judicial corruption were made, coupled with hints that there would be a conflict of interest if Justice Misra were to hear it. Eventually, a five-judge Bench headed by Justice Misra overturned the order and asserted that the CJI was indeed the master of the roster and that he alone could assign cases and decide on the composition of benches. While there is no questioning who has the power to determine the roster, what the four judges are essentially questioning is how this power has been exercised. Judicial work is primarily allocated based on a roster, and individual cases are allotted to Benches based on the category under which they fall. Once the roster is fixed, the CJI should ordinarily see that it is duly followed. Exceptions must be rare, and that too only for compelling reasons. While it is not clear in how many cases such exceptions were made, the four judges seem to have had an issue over the petition that sought an inquiry into the death of special CBI judge B.H. Loya in 2014 being posted before a particular Bench. The deceased judge was hearing the Sohrabuddin ‘fake encounter’ case, in which BJP president Amit Shah was an accused but later discharged. Given the political sensitivity of the matter, the concern expressed over this case is something that must be squarely addressed in a way that dispels any misgivings.
As for the government of the day, it must stay steadfastly away from the internal conflict in the judiciary — something that it has professed it will do. Rather than be inexplicably silent, it must disclose its position on the Memorandum of Procedure for judicial appointments and communicate this clearly to the Supreme Court. One of the specific issues raised in the letter written by the four judges relates to this issue. They have suggested that since the Centre had not responded to the MoP, effectively it was deemed to have been accepted. Given this, they have questioned why a two-member Bench had reopened the issue when the matter was already decided by a Constitution Bench.
Rather than brush away the concerns of the four judges, the Chief Justice must convene a meeting of the full court and give them a patient and careful hearing. Disapproval of the form of their protest must not cloud the substance of their grievances. That four senior Supreme Court judges could have been pushed to take such a drastic and unprecedented step suggests that the differences were allowed to fester and divisions allowed to run deep. Also, that they believed, rightly or otherwise, that their options of settling their differences internally were exhausted. It is best that there is no more airing of differences in public and that this incident is regarded by posterity as an aberration rather than a precedent. About a year ago, the nation was discomfited that the executive and the judiciary were publicly, and often very strongly, disagreeing over judicial appointments. An internal rift in the judiciary is far more serious. It poses the risk of diminishing the image of the judiciary and the esteem it enjoys in society. This institution has illumined national life for more than six decades, but a dark shadow hangs over it now. It is a moment for collective introspection.
The Hindu, January 13, 2018