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The Chief And His Court

The ‘mutiny’ raises some fundamental questions about the judiciary, and its relation with the executive. It was a moment of rupture created by many backstories.

  (SAI Bureau) New Delhi : A pillar crumbled a little. The edifice tottered just that bit. And the world watched, stupefied and taut with tension, as bits of mortar went flying. Who could have foreseen an event that raised questions of the State from what seemed a routine, administrative event in the Supreme Court? When, on June 12 last year, the four ­seniormost colleagues of the Chief Justice of ­India (CJI) approached him with an issue rela­ted to work allocation? All they wanted settled was an objection to his marking a politically sensitive case to a particular judge. 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.



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