View: CJI Must Carry Court With Him

The four judges 'rebelling' were not concerned about the present, but the future of an independent judiciary.

When deciding cases, the Chief Justice of India (CJI) has only one vote. In many judgments, the CJI is in a minority. That is why he is ‘first among equals’. Elevated by seniority, CJIs are not necessarily the best jurists of the court. But his office can blind him into claims of superiority.

This affliction seems to have caught up with CJI Dipak Misra.

In an unprecedented press conference on Friday, Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph, all but castigated CJI Misra for abusing his power of allotting cases to adversely affect “the overall functioning of the justice delivery system”. The CJI’s allotment power cannot be arbitrary.

But Misra seems to think otherwise.

In the medical admission scam case, the matter was sent to junior judge AK Sikri’s bench. Justice Chelameswar’s bench passed an order that the case should go to the five senior-most judges.

Misra abandoned a Constitution Bench temporarily to write a note to overturn Chelameswar’s perfectly legal view. Whether by speech, in writing or by order, a CJI has no power to tick off another judge who is his equal.

When the Constitution Bench reassembled, Misra said he rose early on a “personal matter”. There was nothing personal about it.

On January 12, the case concerning Justice BH Loya’s death was not assigned to the correct bench. Instead, it was sent to the court where Justices Arun Mishra and MM Shantanaoudar were presiding.

Before the court started proceedings, the four protesting judges met the CJI before 10.30 am. It can be inferred that Misra was not amenable to reason on a host of issues addressed by the judges. Such a shabby treatment of colleagues precipitated Friday’s press conference.

Quite apart from misusing the CJI’s allotment power, there is the question of the appointment of judges. After the National Judicial Appointments Commission (NJAC) case in 2015, the Supreme Court restored the power of High Court and Supreme Court appointments to its collegium. A Memorandum of Procedure (MoP) between GoI and the Supreme Court was required. The court asked Attorney General Mukul Rohatgi to assist, which he refused, prompting me to say in court that he was not the Attorney General of India but of the current government.

It seems astonishing that after the SC appointments case, appointments got bogged down. The MoP can’t give GoI an edge over the court. In the letter to the CJI made public on Friday, the four judges said that the Supreme Court sent the MoP in March 2017.

Non-response of GoI meant it had accepted it. But this was the government’s way of stalling and harassing the Supreme Court.

CJI Khehar claimed a pyrrhic victory. But his successor said he would get the MoP settled. What was there to settle? With no reply from GoI, the Supreme Court’s MoP prevailed.

I hesitate to call Friday’s action an ‘intra-court rebellion’. The four judges made public issues that go to the heart of the independence of the judiciary. If a CJI can’t manage his colleagues and listen to their views, he fails in the constitutional task assigned to him.

Once again, the judges of the Supreme Court are not subordinate to the Chief Justice. Together with the CJI, they form a collegium. The task of the CJI is to carry the Court with him — both judges and lawyers.

The four judges ‘rebelling’ were not concerned about the present, but the future of an independent judiciary.

GoI says this is an ‘internal matter’.

But pressure from GoI can’t hold the Court to ransom on judicial appointments.

Some say CJI Misra should resign. He should at least repent.

Courtesy : Rajeev Dhavan, Senior Advocate in SC