They Should Not Have Done It?

12^th January of the year 2018 will forever be etched in the history of Indian judiciary – for this was the day on which fissures within the judiciary, which were only well known to one and all, were officially out in the open. In the morning, I was shocked to see the ANI Twitter handle carrying a story about how senior judges of the country were going to hold a press conference at 12 noon! It is not unknown for judges to speak to the press off the record, but for the senior most judges to hold a press conference on issues concerning the administration of the Supreme Court is unprecedented. I watched live a very anguished Justice J Chelameswar with three other colleagues saying to the press what they said. When an event like this takes place, the world is normally divided into two halves – the ones that think that the judges were right in going public, and those who think that the judges going public brought disrepute to the institution. The news channels had a field day in their continuous attempt to navigate the people. In fact, one popular news channel even attributed motives to these judges for having gone to the press. I, for one, remain confused to this day to which bracket I belong to. I write this more than 48 hours after the press conference was held, for this is not a reactionary piece.

The Chief Justice of India is the face of the Indian judiciary by virtue of the high office. He is, by virtue of his office, the symbol of the Indian judiciary as a whole. And there have been 44 Chief Justices before him but they have not had to face this kind of public rebellion like the incumbent. With the exception of Chief Justice AN Ray and Chief Justice MH Beg, who had been appointed to the office by supersession of their more senior colleagues by the government of the day, no Chief Justice has faced criticism and opposition in the kind that Chief Justice Dipak Misra has had to. Perhaps to some extent, Chief Justice MM Punchhi. Not to this extent though. It is not unknown for the judges to have their internal differences in opinions, especially in respect of appointment of judges. It is not unknown for judges to simply not get along. But does that justify bringing to the fore these deep fissures within the judiciary? This question persists.

A statement of no-confidence by the senior judges of the Supreme Court, and therefore the country, in the manner of administration of the Supreme Court, brings the confidence enjoyed by the judiciary in the eyes of the public to challenge. A press conference by the senior members of the Bench was, most people say, totally unwarranted – as it brought disrepute to the court and the institution. Perhaps, the judges ought to have resolved their differences within closed doors and not bring out in open that which most people knew was brewing. This could have been in a better way. Some people have even attributed motives to these judges, whose integrity and stature has thus far been unimpeachable. But then, I ask myself, what could they have done? Each of these judges has a very large responsibility on his shoulders by virtue of his seniority and office within the judiciary. Is it to act responsibly to call of press conference and declare that democracy was under threat? Was this a political statement?

While one initially thought that the senior judges erred in placing the issue before the nation in a press conference, on later introspection, the wise words of Chief Justice JS Verma in the second judges’ case made me think otherwise. While deciding the issue of the primacy of the chief justice in the appointment of judges, Chief Justice Verma had held:

466. It has to be borne in mind that the principle of non-arbitrariness which is an essential attribute of the rule of law is all pervasive throughout the Constitution; and an adjunct of this principle is the absence of absolute power in one individual in any sphere of constitutional activity. The possibility of intrusion of arbitrariness has to be kept in view, and eschewed, in constitutional interpretation and, therefore, the meaning of the opinion of the Chief Justice of India, in the context of primacy, must be ascertained. A homogenous mixture, which accords with the constitutional purpose and its ethos, indicates that it is the opinion of the judiciary ‘symbolised by the view of the Chief Justice of India’ which is given greater significance or primacy in the matter of appointments. In other words, the view of the Chief Justice of India is to be expressed in the consultative process as truly reflective of the opinion of the judiciary, which means that it must necessarily have the element of plurality in its formation. In actual practice, this is how the Chief Justice of India does, and is expected to function so that the final opinion expressed by him is not merely his individual opinion, but the collective opinion formed after taking into account the views of some other Judges who are traditionally associated with this function.


467. In view of the primacy of judiciary in this process, the question next, is of the modality for achieving this purpose. The indication in the constitutional provisions is found from reference to the office of the Chief Justice of India, which has been named for achieving this object in a pragmatic manner. The opinion of the judiciary ‘symbolised by the view of the Chief Justice of India’, is to be obtained by consultation with the Chief Justice of India; and it is this opinion which has primacy.

Although these words were said in the context of the appointment of judges to the Supreme Court and high courts, the constitutional sentiment expressed therein squarely applies to the administration of Supreme Court as well as the judiciary as a whole. The Chief Justice of India does not have a monopoly in the assignment of cases or the overall administration of the Supreme Court and the judiciary. It is relevant to note that senior most Judge of the Supreme Court (presently Justice Chelameswar), by virtue of his office – and by convention, decisions in respect of the administration of the judiciary are taken by the Chief Justice in consultation with his senior colleagues. For, in the words of Chief Justice Verma, the judiciary is symbolised by the office of the Chief Justice of India. Whatever the Chief Justice does, by virtue of his office, must be in consultation with his senior colleagues.

The four senior judges issued to the press a letter relating to the case of RP Luthra, in which a bench of Justice Goel and Justice Lalit had issued notice to the government in respect of the Memorandum of Procedure (MOP). Curiously, this matter was suddenly listed before a different bench, headed by the Chief Justice, and summarily dismissed. The MOP, which in my view, ought to have been finalised by the court itself and was erroneously referred to the government, has been a bone of contention between the judiciary and the executive since 2015. Not resolving the issue as important as the MOP has virtually paralysed the appointment of judges in several high courts. There is no doubt about the fact that the Chief Justice is the master of the rolls – but does that permit the Chief Justice to use his administrative powers to withdraw a matter from another bench and place it before himself and decide it in a certain manner? I fear not. There seem to be other issues on the administrative side of the judiciary. Not just the allotment of cases. The letter noted so, but expressed a mysterious silence. This has led to considerable speculation amongst the Bar, the media and the people at large. Perhaps more clarity on these “other issues” is required to assess the impact of the presser. The trigger for the present presser, however, seems to be the allotment of the case relating to the mysterious death of judge BH Loya to a particular bench.

One would think that the judges who addressed the press on Friday last would be very irresponsible to the nation and the institution, if they took the step without exploring their other options, being the senior-most judges of the apex court and being, therefore, substantially representative of the institution of the judiciary. Being so laden with such heavy responsibility, one would think they know their responsibilities and obligations to the Constitution and the institution. One would think, as they themselves said, it would have given them no pleasure whatsoever to have gone out and addressed the press. It goes without saying that they must have explored every other option before taking this drastic step. After all, sunlight is the best disinfectant and a little sunlight has hurt no one. A very anguished Justice Chelameswar said, “I don’t want some 20 years later, some very wise man in this country blame that Chelameswar, Ranjan Gogoi, Madan Lokur and Kurien Joseph sold their souls. They didn’t take care of this institution. They didn’t take care of the interests of the nation. We don’t want it to be said (sic).” And history will judge the judges for this presser. And I think, Justice Jasti Chelameswar, Justice Ranjan Gogoi, Justice Madan B Lokur and Justice Kurian Joseph have been true to their oath – to uphold the Constitution and the laws.

Lord Atkin, famously, noted that “Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”This is true for judges also. Judges are not beyond criticism, and must be above any suspicion. (They say so about Caesar’s wife. I have always wondered why not Caesar.) With the present crisis looming, the only way for the issue to be resolved is for the Chief Justice of India to take corrective steps in respect of the administration. Evidently, the office of the Chief Justice of India is not just that of a judge, but that of a statesman. Several persons before the present incumbent have lived up to that role. Chief Justice Misra is perhaps facing his Waterloo, within 4 months of his taking over. The onus is on Chief Justice Misra, to not only carry his senior colleagues along, but also to salvage the institutional credibility, which the court has all but lost in the last few months. The Chief Justice is the first amongst equals, and conventionally has functioned, not in a vacuum, but in consultation and concurrence with his senior colleagues. Perhaps, the statesmanship of Chief Justice Misra needs to be exhibited in action than in words and we got a glimpse of that when Chief Justice Misra did not hold a counter presser on Friday as was earlier rumoured. However, if a Chief Justice is unable to command the confidence of his brother and sister judges, then his moral authority to continue his office diminishes. One sincerely hopes that we do not come to that. Attorney General KK Venugopal is right when he says that the judges will sort these issues out amongst themselves. Judges come and go. Chief Justice Misra, Justice Chelameswar, Justice Gogoi, Justice Lokur and Justice Joseph are in office today and will retire tomorrow. But the institution of the Supreme Court of India will live on. And it is the credibility of this institution and the rule of law laid down by our Constitution that trumps every other interest. Like Justice Chelameswar said, unless the institution of the judiciary is preserved and the equanimity maintained, democracy will not survive. The episode has left a certain unrest within not just the judicial circles, but the entire country. The presser has left a bad taste in the mouth, but its necessity cannot be ignored and the situation needs to be immediately remedied. There is something rotten in the state of Denmark – and it needs to be sorted out within the four walls of Denmark itself. Not by those pundits who peddle sensationalism for news. And certainly not by those who seek to take political mileage out of these unfortunate events. After all, the issues raised by the senior-most judges of the country are not personal, but institutional.

Amit A. Pai is a lawyer practicing at Supreme Court of India.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]