Serious crisis of legitimacy

‘ If I were to remain silent, I would be guilty of complicity’——Albert Einstein.The unprecedented step taken by four honorable judges of Indian Supreme Court to go public has conveyed that Supreme Court administration was ‘not in order’. The maiden press conference addressed by justices J Chelameswar, Ranjan Gogoi, Korian Joseph and Madan B Lokur on Friday last has not only burst open the divisions in the apex court but also sent the warning that if nothing was done to preserve the independence of the judiciary then democracy in India was in danger. ‘They were convinced’, Justice Chelameswar said, ‘there was an immediate need to preserve the judiciary system in the country if democracy has to be protected’. The judges of formidable reputation emphasized that it was the ‘discharging debt to the nation’ that had got them here to speak in open. Underlining gravity of crisis the SC is hobbled with, justice Chelameswar said, ‘There are many wise men saying many wise things in this country. We don’t want wise men saying 20 years from now that Justice Chelameswar, Gogoi, Lokur and Kurian Joseph sold their souls and didn’t do the right thing by constitution’. They said that many things have happened in the last few months that have compelled them to put the facts before the nation. They released the seven page letter they wrote to the Chief Justice of India, Dipak Misra a couple of months ago, conceding that while he was the master of roster but that was ‘ not a recognition of any superior authority, legal or factual of the CJI over his colleagues’.

The core issue raised by the four judges is that CJI has violated the conventions and ‘selectively’ allocated cases. The manner the CJI has assigned the cases to the benches his colleagues found objectionable. The issue is serious since these four judges, together with the CJI, Dipak Misra, comprise Collegium, the highest decision making body of the judiciary. They allege a grave misconduct on part of the CJI. Their disquiet (in mild words) about CJI was piling up since months. What prompted the revolting judges to go to presser—as reported in Indian media—was listing of a petition on the sudden death of special CBI judge Brijmohan Loya who was hearing the Sohrabudin Sheikh encounter case, in which BJP president Amith Shah has been named and later on cleared. The petition seeking an inquiry into judge Loya’s death was heard by Justice Arun Mishra on the day ‘mutiny’ struck in India’s highest temple of justice. There were, in the backdrop of this case, other structural issues related to power of CJI, Memorandum of Procedure, appointments etc that the dissenting judges were not in agreement with the CJI and had raised their objections with him. In MCI (Medical Council of India) case, chief justice overruled the rostering of justice Chelameswar—second senior-most judge after CJI—and assigned the matter to a bench that he headed himself. To silence the dissenters, it was stated that ‘ CJI was master of roster’.

From what has surfaced, it is too obvious that the judges have lost confidence in chief justice Mishra. The vexed issues flagged by the highly respectable judges are no trivial matters to be brushed aside. The distrust in the integrity of the court –and from within and from the most learned judges themselves— is alarming . It is not that a certain political party or some legal luminaries are registering their voice against the grave misconduct of the CJI and are worried about the future of democracy in India. Apart from pointing to ‘impropriety of the rostering’ (in other words charging the CJI that he is manipulating the outcome in some sensitive cases), the dissenting judges harbor strong fears of ‘superior authority’ – not far away from fascism—taking reigns of judicial system in India in future. That has forced them to stand up and be counted in times of crisis.

If all they have vented out gets addressed at the right place, then judiciary in India will see itself getting rejuvenated. But even in doing so press conference at Chelameswar’s residence have shown that all is not well in administration of justice in India. From now on any pro-government decision delivered from a bench allotted by CJI would be smudged with series of doubts. When the spring itself loses the purity of integrity, the streams flowing down would not look and do different.

Then there is another question, who will sit to deliver guilt against the chief justice? Indian constitution has, to possible limits, ensured independence of judiciary. Any attempt to lower the bar will be a golden opportunity for a government that wants, and is striving for, its maximalist control on all the institutions of the state. That has to be avoided at any case. So the best way for the court is to sort it out herself by addressing the points raised by the dissenters.