The unprecedented decision of Justices J Chelameswar, Ranjan Gogoi, MB Lokur and Kurian Joseph to allege that the Supreme Court’s way of working is crumbling, has created a crisis that has no parallels in independent India’s judicial history.
The simmering volcano has burst into the open and calls for statesmanship of the highest order from the executive and the judges to restore confidence in the higher judiciary.
Chief Justice of India Deepak Mishra had been brought into the eye of the storm due to sharp criticism both from the bar and his colleagues on the bench. The decision of the four senior most judges to go public with their views, brings into focus three controversial issues—the manner in which Mishra distributed work among his colleagues; the Medical Council of India (MCI) scam where allegations of involvement of judges were freely traded; and the suspicious death of Special CBI judge BH Loya hearing a case where ruling Bharatiya Janata Party (BJP) president Amit Shah was an accused.
CJI Mishra, as master of rolls in allocation of work, his senior colleagues felt was allocating work to juniors to obtain pre-determined results, thereby raising concerns about the credibility of the judicial functioning of the apex court. The manner in which work was allocated in the MCI scam issue and punishment meted to a NGO which had raised the issue had invited sharp criticism. The “ham-handed” approach of CJI Mishra on sensitive issues has been behind the simmering discontent. The four senior most judges thought it fit to raise the issue on a day when the apex court was to hear a petition on the suspicious death of Justice Loya.
A divided judiciary may provide an opportunity to the executive to have its say in the appointments to the higher judiciary. But it may be a short sighted view of the issue as such an exercise would completely erode the credibility of the judiciary and ultimately boomerang on the executive. Many close to the government have fallen to this temptation and begun rallying behind CJI Mishra. Most of them have in fact been beneficiaries of the discretionary powers of the judiciary in appointments to the higher judiciary and making of senior advocates. Chelameswar in his dissenting judgement on the National Judicial Appointments Commission in 2015 had contended that the collegium system of appointment of judges had become an “euphemism for nepotism.”
Prime Minister Narendra Modi should contain the mischief makers, who hope to strengthen their network by fishing in troubled waters. He should convince President Ram Nath Kovind, a lawyer himself, to call an informal meeting of all the judges of the Supreme Court and ensure that the institution is not weakened by the revolt and issues are amicably resolved.
There have been instances when senior judges have had professional and personal clashes, but not since the supersession of judges in 1973, has the credibility of the Supreme Court of India been called into question in such a manner. Differences between YV Chandrachud as Chief Justice of India and his next in line successor PN Bhagwati were an open secret.
Piqued by the Supreme Court judgment in the Kesavananda Bharati case, which by 7:6 majority had held that the Parliament had no power to amend the “basic structure of the Constitution, Indira Gandhi government decided to supersede JM Shelat, KS Hegde and AN Grover to appoint AN Ray as the Chief Justice of India. There was tremendous agitation over the supersession of judges as Ray was considered inclined to favour the government.
During the Emergency, angry at Justice HR Khanna’s decision to dissent in the habeas corpus case where a 4:1 majority had said in an Emergency proclamation no legal remedy was available to a prisoner against arbitrary arrest, Indira Gandhi appointed MH Beg overlooking the seniority of Khanna. Since then there has been no supersession of judges in the apex court and the Chief Justice of India has been appointed on seniority.
In this context, Justice Ranjan Gogoi has shown tremendous courage as he is next in line for Chief Justice of India in October later this year.
The coming days will show how the executive and the judiciary would try to tide over the crisis and strengthen itself. This will be a test that the Constitution of India will have to bear - for at stake is the vision of our founding fathers.