At this stage only the CJI can resolve the knotty issues through an act of statesmanship.
In an unprecedented step that has serious implications for the administration of justice in the country, the four seniormost Supreme Court judges after the Chief Justice of India held a press conference on Friday to vent serious concern over connected issues that have a bearing on the independence of the judiciary, a cornerstone of democracy. Top judges of the Supreme Court had resigned in the 1970s when the government superseded them to elevate Justice A.N. Ray to CJI. In that case of tailor-making the CJI, the surrender of judicial independence was implied. In the present case, judicial integrity and independence are more direct considerations.
Justices J. Chelameswar, Ranjan Gogoi (next in line to be Chief Justice), Madan B. Lokur and Kurian Joseph told the media that they had met CJI Dipak Misra earlier in the day to convey their concerns, urging him to set matters right. However, according to them, the CJI did not pay heed. At that point they said they felt they had no recourse but to address the public through the press in discharge of their debt to the nation. They also released a seven-page letter they had addressed to the CJI.
Making an official letter public is a matter of debate, as much as holding a press conference, which is probably unprecedented anywhere in the world. But there can be no getting away from the concerns raised by the senior judges.
These are basically two — the allocation and strength of a bench to deal with different kinds of cases, and not regarding as final the memorandum of procedure sent to the government by CJI Misra’s predecessor in March 2017 (after consultations within the five-judge collegium) and endorsed through a judicial order.
The stark suggestion is that cases are being allocated and benches being constituted by the CJI in an arbitrary manner, without regard for convention, in order to obtain pre-determined outcomes. This is a grave matter.
It is implied here that this is a way to appease the executive. It appears hearing the case of the mysterious death of CBI judge B.H. Loya, who was trying the Sohrabuddin murder case in which Amit Shah, now BJP president, was an accused, has been posted for Monday in the court of a relatively junior SC judge.
On the subject of the memorandum of procedure (for the appointment and transfer of high court and Supreme Court judges), the senior judges indicate that the present CJI has spoken of its “finalisation”, although it has already been finalised. CJI Misra’s stance thus presumably leaves room for governmental interference in appointing and transferring judges.
At this stage only the CJI can resolve the knotty issues through an act of statesmanship. Parliament and the executive should avoid the temptation to intervene. That can politicise issues, a disquieting thought.