With the four senior-most judges in the Supreme Court after the Chief Justice—Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph—deciding to hold a press conference against how the Supreme Court was functioning, the rot in the judicial system, stemming from its opacity, is now out in the open. Sensibly, the government, which has a running battle with the judiciary on the issue of how appointments are to be made, has said it plans to keep out of what it described as a battle within the Supreme Court. Though the four judges—and two more judges also joined the rebellion later—have not given out too many specifics of their complaints, these broadly relate to opacity and corruption in the judicial system. The letter talks of instances where ‘cases having far-reaching consequences’ were assigned by ‘the Chief Justices of this Court’—apparently, it is not just currrent CJI Dipak Misra they are referring to—to the benches ‘of their preference’ without assigning any reason for this. One case the letter talks of, repeatedly, is that of RP Luthra, who was petitioning against himself not being appointed a judge of the Supreme Court.
In this case, in November last year, Justices AK Goel and UU Lalit set aside Luthra’s petition but, while doing so, issued a notice to the central government asking for why it was delaying finalising the Memorandum of Procedure (MoP) for appointment of judges to SC and various high courts. This order, however, was set aside by a three-judge bench headed by CJI Misra which, at the same time, upheld the setting aside of Luthra’s petition. While CJI Misra felt the delay in the MoP did not need to be taken up through a judgment, the four judges feel the matter is too important not to be pushed. There are over 3.4 crore pending cases in India’s courts and a huge shortage of judges—if you go by a Law Commission recommendation, the shortage is as high as 45,000 judges!
What the four judges are not talking about, though, is the role of the SC in where we are today. Till the 1990s, all judicial appointments were made by the government of the day, though in consultation with the CJI. Over the course of three important cases, culminating in the Third Judges case in 1998, SC arrogated this power to itself by creating the collegium system to appoint/promote judges. The government tried to strike a balance by suggesting a National Judicial Appointments Commission (NJAC) to appoint/promote/probe judges, but SC struck this down. While doing so, however, SC admitted to serious shortcomings in the collegium and spoke of the need to make this more transparent. The MoP was meant to be a via media while keeping the opaque collegium alive and the government and SC don’t see eye to eye on it.
And while the SC blames the government for the nearly 430 posts of judges and additional judges lying vacant in high courts, the government highlights the staggering 4,400 vacancies in the subordinate judiciary where appointments are made by the High Courts in most big states. What is interesting here is that Justice J Chelameswar has been a long-time critic of the collegium—he was the lone dissenter when the NJAC judgment was struck down—and even stopped attending meetings of the collegium in 2016 when TS Thakur was CJI. The letter to CJI Misra refers to the case against Justice CS Karnan who wrote a letter to the prime minister giving an initial list of 20 corrupt sitting and retired Supreme Court and High Court judges. In that case, the letter says, ‘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’—impeachment is a long-drawn case and requires all political parties to be united on it; in the three cases so far, Congress MPs walked out of the house in one and in two others, the judges chose to resign.
Another recent flash point between CJI Misra and other judges, as it happens two days before the RP Luthra case, was that relating to corruption in the Medical Council of India (MCI) where it was alleged that there was an attempt to bribe the SC to get a favourable ruling. A two-judge bench of Justice Chelameswar and Justice S Abdul Nazeer ordered that a 5-judge bench be set up to decide on whether a retired-CJI-supervised probe by a Special Investigation Team was required. A 5-judge bench headed by CJI Misra then overturned this order by Chelameswar-Nazeer and said ‘no bench can take up a matter unless allocated by the CJI who is the master of the court’. While advocate-petitioner Kamini Jaiswal said the scandal being probed by CBI involved SC and HC judges, at one point during the hearing, advocate Prashant Bhushan said the FIR named the CJI himself.
Whatever the final outcome of this massive and public rebellion in the SC, the first one in independent India, it is to be hoped that it ends up in cleansing the judicial system which, apart from being excruciatingly slow, has become increasingly opaque and erratic, and several strange judgments in various courts have resulted in many allegations of corruption being leveled at the judiciary. By complaining about various CJIs assigning cases to benches ‘of their preference’, the four judges have cemented this view of justice being selective and even pliable—otherwise, why would it matter if the case was heard by one bench or another?