5th Anniversary of Supreme Court Judges’ Press Conference: What Has Changed and What Has Not?

Events subsequent to the press conference, however, show that the lack of such in-house mechanism to resolve differences among the Judges, has not really led to holding of another press conference by disgruntled Judges. 

Were the four Judges who held the press conference correct in claiming that they were left with no option? One of them, Justice J.Chelameswar specifically denied that the decision was impulsive, and that they did calibrate the significance of their move. In other words, did the four Judges exhaust the remedies available to them, before going public against their own Chief Justice? It would appear so, given the background of their common petition being ignored.

One of the four Judges, Ranjan Gogoi, wrote in his memoirs, Justice for the Judge: An Autobiography,(2021) that the decision to hold the press conference, was on the spur of the moment, taken after Chief Justice Dipak Misra refused to reverse his order to allocate Judge Loya case to Justice Arun Mishra. Gogoi also claims that Chief Justice Misra became careful and conscious while exercising the power of allocation of cases. 

Having held the press conference, however, the four Judges - as if they understood the enormity of their action - soon resumed their duties at the Court, and interacted with the then Chief Justice, Dipak Misra, to facilitate normal functioning of the Court, as if the presser did not take place at all. Their constructive cooperation helped the Court to safeguard its institutional integrity, and move on, leaving for the media to interpret whether the presser achieved its goal or not.

It is debatable whether the 2018 press conference would be a precedent - or an unhealthy precedent - for Judges of the Supreme Court, if ever they are faced with a similar Chief Justice of India, like Justice Dipak Misra. Much will depend on how an incumbent CJI addresses grievances of his colleagues, that is, swiftly, and effectively, rather than allow them to linger on for months.

Memorandum of Procedure(MoP):

One of the issues raised by the four Judges was the non-finalisation of the fresh MoP. They, for instance, took objection to the fact that when the MoP was the subject matter of a decision by a Constitution Bench in the NJAC case, the then CJI, allocated the matter to be heard by a two-Judge bench in R.P.Luthra vs Union of India. The bench in R.P.Luthra, had on October 27, 2017, held that there should be no further delay in finalising the MoP in the larger public interest.

The four Judges pointed out that the MoP was finalised and sent by the CJI to the Union Government in March 2017, and since the latter did not respond to it, and in view of this silence, it must be taken that the MoP as finalised by the Collegium had been accepted by the Government of India. The four Judges made it clear that any issue with regard to the MoP should be discussed in the Chief Justices Conference and by the full Court. “Such a matter of grave importance, it at all required to be taken on the judicial side, should be dealt with by none other than a Constitution Bench”, they said.

Ironically, however, the Supreme Court’s three-Judge bench is currently hearing a similar matter in The Advocates Association Bengaluru vs Barun Mitra, which has been a source of fresh controversy resulting in exchange of barbs between the members of the Government and the Judiciary.

The bench hearing the case of Advocates Association Bengaluru, however, considers the March 2017 MoP version, as submitted by the CJI to the Union Government, as identical to the old one, and final. According to the bench, Government is free to suggest any changes to the existing draft, which will be examined afresh by the Collegium

The Union Government, on the contrary, has neither confirmed this claim, nor updated the Department of Justice website which continues to show the old MoP, without any indication whether it incorporates the guidelines laid down by the Supreme Court in the NJAC case. Instead, the Attorney General vaguely referred to a thought process which enabled the Union Government to return for reconsideration even reiterated recommendations from the Collegium.

The MoP issue itself is far from resolved, and one reason for this lack of progress in framing a revised MoP is perhaps because successive CJIs did not believe in setting up another Constitution Bench to pull up the Union Government for its non-compliance with its direction to frame a revised MoP. Successive CJIs believed that it was a matter to be sorted out administratively, rather than on the judicial side of the Court, and there it remained unresolved. The outcome of the Supreme Court’s hearing in Advocates Association Bengaluru case may indeed show whether the four Judges were prescient in their analysis.

Roster/Constitution of benches:

The four Judges, in their letter, pointed out that the convention of recognising the privilege of the Chief Justice to form the roster and assign cases to different members/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 this country that the Chief Justice is only the first among the equals - nothing more or nothing less”, they wrote in their letter to the Chief Justice, Dipak Misra.

In their letter, the four judges reminded the then Chief Justice that the members of any multi-numbered judicial body including the Supreme 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 and strength-wise with due regard to the roster fixed. “Any departure 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”, they warned.

“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”, they alleged in their letter.

Post-2018, nothing much seems to have changed on the question of bench allocation, and the instances are plenty to confirm that the four Judges were indeed correct in their analysis.

It was widely believed in 2018(and subsequently confirmed by Justice Gogoi in his 2021 autobiography), that the allocation of hearing of the petitions urging inquiry into the mysterious death of Judge B.H.Loya, who was hearing an encounter death case, to Justice Arun Mishra, who was then a junior Judge in the Supreme Court, was the trigger for the press conference. Justice Arun Mishra subsequently recused from hearing the case, which was eventually heard by the then Chief Justice, Dipak Misra himself, presiding a bench of three Judges, the other two being Justices A.M.Khanwilkar and D.Y. Chandrachud.

The dissatisfaction with the allocation of cases by the CJI, in his administrative capacity, soon led to the publication of the roster of the work for fresh cases periodically on the Supreme Court’s website, under the order of the CJI. While this led to some transparency, this is still viewed as inadequate to know why a particular case was listed before a particular bench and why at all on a Saturday, rather than a working day.

Recently, the listing of the petition challenging the discharge of activist G.N.Saibaba, before Justice M.R. Shah on a Saturday was questioned as an improper exercise of the administrative power by the then CJI, U.U.Lalit, who, however, pleaded ignorance about Justice D.Y.Chandrachud observing that the HC order cannot be stayed when the matter was mentioned before him. Justice Lalit also claimed that he did ask whether Justice Chandrachud would be available for hearing the case. He suggested that the case was listed before Justice Shah because Justice Chandrachud was not available on that day. But the question why the case of discharge of a convict by the high court was listed and heard on Saturday still remained unanswered.

Justice Chelameswar claimed that the four chose to hold the press conference on January 12, 2018 because the cases assigned to them earlier were withdrawn from them without any information or consultation, and assigned to another Judge, and this was a sufficient insult to provoke them. Whether this practice changed after 2018 can be ascertained only if former Judges share their experiences with successive CJIs in public.

'Democracy in peril'

The four Judges, in their press conference, also alleged that the democracy itself is in peril, because of the arbitrary administrative decisions of the then Chief Justice, Dipak Misra. Explaining this to journalist, M.K.Venu, Justice Chelameswar had said that democracy as envisaged by the Indian Constitution looked at the judiciary as some kind of an impartial arbiter between the state and the citizen/subject. He suggested that when the state is on one side, all kinds of considerations crop in: judges are appointed by the state, paid by the state, not to talk of post-retiral benefits.

Ironically, one of the four Judges, and now Member of Parliament, Ranjan Gogoi, soon after his elevation as the CJI, presided over benches which delivered a few pro-Government judgments. The fact that he faced an in-house inquiry into sexual harassment allegations involving a former employee of the court and got a clean chit even while remaining as the CJI, and that soon after retirement from the Court, accepted the Government’s offer to become a nominated member of the Rajya Sabha, only confirms the worst fears that the four Judges collectively expressed five years ago about democracy being in danger.