Why am I not surprised at the ongoing Judicial Rebellion? Maybe I was expecting it for the last two months. Or, maybe I was waiting for this to happen since Sep’16, when Justice Chelameswar used existing procedures to force the procedure of judiciary selections to change – for better. When proprieties are thrown out in favour of procedures, a course-correction is on the anvil. The idea initiated by Chelameswar has now found support with three more Supreme Court Justices and their joint statement has surprised the nation.
Four out of five senior most senior judges of Supreme Court today held a press conference and released a letter to The Chief Justice of India to the public.
On the face of it, the current situation looks similar to a ‘Corporate Power Struggle’ that simply spilled over into the streets. “It is too well settled in the jurisprudence of this country that the Chief Justice is only the first amongst the equals — nothing more or nothing less”. Even the words used in the letter suggest internal power struggle. Wait, don’t let the words mask the intensity of the situation.
Quis custodiet ipsos custodes? Who will guard the guards? If safeguarding Justice of ordinary citizens is in the hands of Judges, who will guard them from the Judges? How to ensure Judges are honest enough to safeguard individual rights and upholding the constitution – in letter and in spirit? It is the written procedures, unwritten traditions and a passion for justice that ensure our judiciary is qualified to do its job. Does quality of judgement depend on the number of judges in the bench? To quote Ayn Rand’s Howard Roark “A Committee’s decision is always a compromise between the best and worst opinions formed by its members”.
Justice Karnan served nearly six months in jail. He became a fugitive and ran to escape from the long arms of the law – in vain. What was his original sin? He complained about corruption in judiciary. When his whispers were not heard, he made noises. Then, he shouted from the roof top to make the seniors sit and listen. Frustrated with inaction from the Supreme Court, he ordered the arrest of Supreme Court Judges. He simply played into their hands – and got kicked. Unlike many others who criticize the ‘Establishment’, he was a part of the establishment itself. Finally, he made a fool out of himself.
That Justice Chelameswar knows how to handle the Judicial establishment, was established when he found a way to force judges of collegium to record their observations and comments on selection of Judges for higher courts. So, when three other judges (Ranjan Gogoi, Madan Lokur and Kurian Joseph) flocked around him at his residence and revolted against the CJI, I am skeptical – of his intentions. But, even while the judicial quartet rebelled against the single individual who considered him to be the most powerful in Indian judiciary, they maintained the sanctity and chose to play to the gallery. Unlike Karnan who threw insinuations around, they used the press conference only to convey what they were willing to tell and coating the bitter truth with sweet words like morality and democracy.
The moot point of the conference is “The convention of recognizing that CJI is the master of roster and assigns cases to different benches is for disciplined and efficient transaction of court business and not a recognition of superior authority”. And, we go back to November, when the bench comprising Justice Chelameswar and Justice Abdul Nazeer recommended to CJI to form a five-judge bench to hear the corruption case involving former Odisha High Court Judge IM Quddusi and a blacklisted Lucknow Medical College.
The very next day CJI declared in the open court that no bench irrespective of number of judges in it can allocate any case to itself and direct CJI to form a constitution bench. During the hearing Prashant Bhushan requested CJI Deepak Misra to recluse from hearing the case and from heading such bench as the FIR was against CJI himself. CJI denied his name was mentioned in any FIR. As Justice Arun Misra wondered asking CJI to recluse amounts to ‘contempt of court’, Prashant Bhushan dared the bench to issue contempt notice to which CJI responded by saying “You are not worthy of contempt”.
Word fighting apart, the procedural tangle involved had created an incident in the Supreme Court.
The responses of many judicial luminaries too varied on the current episode.
Soli Sorabjee felt this should not have happened and there would be repercussions in Indian Judiciary. Justice RS Sodhi wanted four Judges to be impeached and felt that this trade unionism is wrong. For Ujjal Nikam, this is a black Friday and this press conference is a bad precedent. He also said common man would now look at judiciary with suspicion (as if now they are not, though not as openly) and every judgement will be questioned.
Subramanian Swamy however felt that one cannot question the integrity of the four judges and criticise them for coming out in open. He wanted the PM to ensure there would be a consensus in Supreme Court. Prashant Bhushan went a step ahead and criticized CJI for misusing his powers blatantly that someone had to confront.
There may be many supporting and opposing views on this ‘first of its type’ judicial press conference. While the opposition may choose to side with the ‘rebels’ the government may prefer to act neutral. In fact, the government or even CJI may not act against these four judges. That would make them look like Indira Gandhi, who declared Emergency, when a Judge ruled against her election. In fact, all political parties in fact would be happy because this ‘rebellion’ may eventually pave way for NJAC – which both Congress and BJP wanted to push through but for stiff opposition from the judiciary.
Though it was widely expected that CJI Deepak Misra would be responding in the Court, he has not responded. Maybe he is taking time to prepare himself. Maybe there would never be any statement from him, till he convenes a meeting of all Supreme Court Judges and decide the matter internally. How other members of Supreme Court and the extended legal fraternity would react to the situation may decide the course of action. Hope prudence will prevail over all and the judicial fraternity would reach a consensus that may lead to establish and firm up better practices and procedures so the nation would benefit.