The Chief And His Court

Except that it had not happened before. Nor had what followed. Not in India. Perhaps nowhere else either. Precedents are the life-blood of law. Were there any here, to judges questioning a chief justice? Some say maybe one or two judges had approached prior CJIs. Once, a former A-G did indeed approach one. But even so, it had been made public only much later. Nor had a refusal met with the fate it did that day.

Rebellion, mutiny, trade unionism, anarchy…it was described variously, that unbelievable sight of four Supreme Court judges with media microphones in front of them. All the appropriate things were said all around. To the effect that, behind the particulars of what was said—or its motivations—the deep internal impulse for the judiciary’s independence from control of the political executive must be sacrosanct.

The press conference was a break in tradition, without precedent. But it appears to have been within the guidelines for judicial conduct since there was no political comment, though the atmosphere was politically charged. Judges are not strangers to media coverage. Justice Jayant Patel’s resignation was placed in the public dom­ain. Delhi HC judges had ‘unofficial’ chats with reporters against the transfer of Justice Rajiv Shakdher. But this was no belligerent Justice Karnan, holding court in his living room and sending legal and contempt notices to SC judges. Nor were they novice judges. The average judicial experience of each is around two decades, with the same number of years spent practising law before becoming judges. And among them was the next CJI, making it more than a “family tiff”.

The Trigger

CJI Dipak Misra had marked a petition for hearing by a bench. The petition sought a probe into the death of CBI judge B.H. Loya, who was conducting the trial into the alleged fake encounter of Sohrabuddin Sheikh—a trial where BJP party chief Amit Shah was then one of the accused (he has since been discharged). The CJI marked this petition to a court comprising Justice Arun Mishra, skipping past nine other judges. This could be seen as a trigger because, out of three recent SC decisions (detailed below) that invited some adverse public comment, two had been marked to Justice Mishra.

This was only one of the things that didn’t sit well with the four puisne judges—Justices Jasti Chelameswar, Ranjan Gogoi, Kurian Joseph and Madan Lokur. As everyone incredulously coped with the idea of a judicial mutiny, at least four former (including SC) judges weighed in with support for the four judges, as did a section of media and public opinion. Many questioned the move as politically motivated.

At the time of writing, efforts at a resolution, at informal and customary meetings (at one of which Justice Arun Mishra reportedly broke down), had still not borne fruit. Pending a final decision, the CJI has excluded the four from some important cases, including the Aadhaar case being heard by a Con­stitution bench.

Master Of Roster

These developments follow a November 10, 2017, judgement by a Constitution bench that was led by CJI Misra and comprised Justice Arun Mishra among others. This bench had decided, amid chaos as lawyers for petitioners such as Prashant Bhushan were heckled and not heard, that the CJI was the “master of the roster”. Which meant he alone could decide which judge(s) would hear which case.

This too has a backstory, which continued unravelling even after the January 12 press conference on the lawns of Justice Chelameswar’s Tughlak Road residence. Citizens for Judicial Accountability and Reform (CJAR) and lawyer Kamini Jaiswal had filed petitions on November 8 and 9, 2017, respectively, seeking a probe led by a former SC judge into allegations of corruption against the highest judiciary. Before this, the CBI had arrested former High Court judge I.M. Quddusi for soliciting and accepting bribes in a case related to the deregistration of a medical institute, apparently to fix the judicial outcome. CJAR and Jaiswal felt the government could use the CBI probe to lean on the CJI, bec­ause he had heard the medical institute cases. Both petitions were dismissed subsequently by a bench of Justices Arun Mishra and R.K. Agrawal, who also imposed heavy costs of Rs 25 lakh against CJAR.

Since then, transcripts of alleged telephonic conversations between Quddusi and other accused have been leaked to the media. These allegedly show they had fixed the benches. On January 16, four days after the ‘mutiny’, CJAR filed an internal complaint against the CJI with the five seniormost judges after the CJI. Meanwhile, Quddusi has asked the CBI court to probe the leak of the transcripts.

Death Of A CBI Judge

Loya’s death has drawn much public debate recently since a report published on the website of a monthly magazine. The report raised sus­picions that Loya’s death was not natural and alleged cover-ups by authorities. Prior to his death, the special CBI judge was monitoring the SC-directed CBI investigation into the alleged fake encounter of Sohrabuddin Sheikh. Along with police and other officials, BJP chief Amit Shah was one of the accused at that point.

Voices stacked up on either side. Some Bombay HC judges and others contended they were present during Loya’s death, and it was a natural one. Subsequent media reports too tried to quash suspicions. Some of his surviving family members have raised questions. Last week, Loya’s son appeared in public and said through a lawyer that he was now satisfied it was a natural death.

It’s an acceptable premise that any suspicion on the cause of a judge’s death in a high-profile case needs to be satisfied in the public domain. On January 16, when the matter came up before Justice Arun Mishra, he directed that the Maharashtra government hand over all relevant documents, and said the case may be referred to “an appropriate bench”.

Dissenter-In-Chief

An old timeline. Justice Chelameswar was elevated as an additional high court judge in May 1997. That was a full two years before ex-CJI J.S. Khehar was elevated as a high court judge in 1999, the same year Chelameswar was confirmed. The latter was also elevated as the chief justice of a high court in 2007, again two years before Justices Khehar and Misra were made HC chief justices in November and ­December 2009 respectively. Nevertheless, Justice Chelameswar’s elevation to the Supreme Court lay pending and Justice Khehar was sworn in as an SC judge before him. It was also fate that Justice Dipak Misra was sworn in as SC judge minutes before Justice Chelameswar on the same day in 2011. This was during the tenure of the (late) Justice S.H. Kapadia as CJI. All these random facts, put together, ensured Chelameswar would never be the Chief Justice of India.

This personal trajectory, mapped on to the long dispute over how much unmonitored power the judiciary (and hence, the CJI) should have, affords insights into the evolution of his views. Seen this way, Justice Chelameswar’s dissenting opinion in the five-judge Constitution bench’s 4-1 verdict on NJAC case was not surprising. This 2015 verdict, by which the SC rejected a government-proposed National Judicial App­ointments Commission and kept the powers to appoint judges with itself, was what first brought Chelameswar to the public eye.

In his individual judgement, he said the SC collegium, as a mechanism to select and appoint judges, was “opaque and inaccessible both to the public and history”. Words like “tradeoff”, “sycophancy” and “lobbying” were sprinkled through his text, as he likened the collegium to a club where favourites were played and favours exchanged. Philosophically, this was in line with a forgotten part of the 1982 First Judges case, which first swung the advantage from the executive to the judiciary in this long turf war. That verdict had mentioned an independent judicial commission as an ideal body to appoint judges.

In practice, he refrained from attending collegium meets and asked for files to be circulated within the five members of the collegium. When this last bit happened (during the tenures of T.S. Thakur and Khehar as CJI), sections of the bar and bench speculated it was a direct result of “executive compliance”. So his stand last Friday surprised many since it seemed inimical to the interests of a political executive looking to smoothen the path for politically sensitive cases.

Emergency And After

Both in theory and practice, a distinction can be made between the judiciary’s powers and the power vested singularly upon a Chief Justice. The experience of the Emergency era would suffice—two consecutive CJIs acted in a pliable manner when the executive abridged the citizenry’s fundamental rights. The bar and bench agreed that concentrating power in the CJI had come at a high cost during that period. For the decade between 1983 and 1993 too, the CJI differed with the government’s opinion in only seven appointments, out of nearly 550.

This is the backdrop to the spate of cases called the First, Second and Third Judges cases, which gradually loosened the government’s and then the CJI’s sole grip over appointments and transfers, and shared that power equally among the next four senior judges too. One of the few powers that rest now with the CJI is of fixing the roster—the present debate centres over how crucial that may be. What has been welcomed in many quarters is that Justice Gogoi—who, as per custom, is slated to take over as the next CJI—may have sacrificed his chance at dictating the composition of benches for 13 months between October 2018 and November 2019. Instead, he has joined the three others in protesting the cherrypicking in marking sensitive matters to specific benches.

Are They Insulated?

This airing of heated opinions, uncharacteristically public as it is, comes in a context. Should the CJI be seen as a figure vested with unilateral powers? Or merely as a first among equals, which is technically the reality? These questions are a subset of the larger tussle between the executive and the judiciary—and control over the roster a micro version of the bigger question of appointments, which still looms.

It’s obvious why unilateralism could be deemed risky: at least in theory, a single person may be easier to lean on, persuade or otherwise influence than a set of five disparate figures. Spreading the decision-making powers over a collegium, thus, could offer a modicum of insulation—though even that’s less than ideal according to one school of thought, as held by Justice Chelameswar.

But again, even that degree of insulation is in theory. In practice, even collegium decisions on appointments have been a field ‘gamed’ with supreme finesse by the executive, even with the powers it has now. Look only at what happened in 2014, when the collegium led by then CJI R.M. Lodha sent the names of two senior lawyers along with the names of two HC judges for elevation to the apex court. The two lawyers were Rohinton Nariman and Gopal Subramanium, who had been designated as senior advocates together in 1993 by then CJI M.N. Venkatachaliah. And the two judges: Justice A.K. Goel and the one in the headlines this week, Justice Arun Mishra.

While none objected to the other names, the IB and the CBI set up negative reports around Subramanium that were then leaked to the media so as to create the atmosphere. The IB reported that Subramanium relied on spiritual guidance rather than reason in his decision-making. Subramanium consul­ted a spiritual guru before taking decisions, IB reported, adding that some claimed he chanted shlokas loudly before making up his mind. The CBI reported that there were taped conversations of Subramanium seeking favours from controversial corporate lobbyist Nira Radia. It also claimed he had arranged a meeting between former telecom minister A. Raja’s lawyer and CBI officers when the 2G case was being prosecuted.

Now, for anyone who cared to look, there was as much countervailing evidence as one nee­ded. ­After resigning as solicitor-general, he had accused the UPA government of concealing the “extent of criminality” in the 2G case. And in one conversation, Radia seemed to hold Subraman­ium’s integrity in high esteem and said he “could not be managed” or swayed.

Yet, Subramanium’s dogged approach as the SC-appointed amicus curiae in the Sohrabuddin Sheikh and Tulsi Prajapati cases had seen them being handed over to the CBI. This had made him grossly unpopular with the new NDA government. And the leaked IB and CBI notes helped create a mood against him among a public that had just voted the BJP into power. The colleg­ium was forced to respond: a collegium member admitted to a media outlet that they had known about his spiritual side during the selection.

This could have become a fit case for testing judicial independence. It is not known what the SC would have done: the collegium could have entirely ignored the media stories. But Subramanium felt it would be in the fitness of things to pull out of the race. Had he been appointed, he would have retired as a Chief Justice of India.

Things soon moved to a more open confrontation. The NJAC case verdict came in October 2015. Later, as CJI, T.S. Thakur’s emotional display at a public function may have inv­ited cruel reactions on media and social media. But his was a tenure marked by a nervy battle of attrition with a government still smarting from the NJAC defeat. The government stalled appointments to the judiciary, till media criticism changed the course slightly, while Thakur maintained the wall between the jud­iciary and the executive.

Next, Justice Khehar’s tenure as CJI is when the public opinion began turning: a different sort of crisis. First there was the Birla-Sahara diary case that a bench led by Justice Khehar refused to order an independent probe into. Second came the suicide of former Arunachal Pradesh CM Kal­ikho Pul and his allegedly explosive suicide note, with its allegations of judicial corruption.

These are the twin axes on which the whole story of the so-called mutiny turns. One, the clash between the executive and the judiciary, a grave situation for democracy, as the four ­judges said. And two, its own inner conduct, behind that august opacity, that renders it ­vulnerable in the first place.