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Four judges of India’s top court criticise its functioning in rare public spat

Modi has summoned law ministry officials, say aides

Image Credit: PTI
Supreme Court judge Jasti Chelameswar along with other judges addresses a press conference in New Delhi on Friday.
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NEW DELHI: Four justices of India’s top court on Friday criticised its distribution of cases to judges and raised concerns about judicial appointments, in an unprecedented public airing of problems at one of the country’s most respected institutions.

The move spells far-reaching implications for jurists and politicians in the chaotic South Asian democracy where the Supreme Court often sets the agenda on matters of policy and orders measures taken in the public interest.

Exposing a rift with Chief Justice Dipak Misra, some of the Supreme Court’s most senior judges told a news conference the issues involving its administration were serious enough to prompt them to go public.

“The four of us are convinced that unless this institution is preserved and it maintains its equanimity, democracy will not survive in this country,” Justice Jasti Chelameswar said on the lawns of his residence in the Indian capital.

The justices gave few details of the incidents they were referring to, but released a letter they had written to Misra.

In the letter, they mentioned instances of cases with “far-reaching consequences for the nation and the institution” that were selectively assigned to judges by the chief justice without any rational “basis for such assignment”.

The four judges said they were not mentioning details of the cases only to avoid embarrassing the institution because “such departures have already damaged the images of this institution to some extent”.

All Supreme Court judges should be involved in setting the procedures used to hire and promote judges in various courts in the country, including the high courts, they added.

Law Minister Ravi Shankar Prasad declined to comment.

The Loya case

Two close aides of Prime Minister Narendra Modi said he was looking into the matter and had summoned top law ministry officials for consultations.

Pressed by reporters, one of the four judges, Ranjan Gogoi, acknowledged that the concerns about assignments were related to the case of a lower court judge, B. Loya, who died in December 2014 while hearing a high-profile trial.

Judge Loya, who was hearing a case relating to the killing of gangster Sohrabuddin Sheikh in an alleged fake shootout in which BJP chief Amit Shah was named an accused (later discharged), died of cardiac arrest in 2014. His family has raised doubts over the circumstances in which Judge Loya died and have sought an independent probe into it.

Pleas seeking the probe came up for a hearing in the Supreme Court on Friday when the top court expressed concerns over it and said it was a “serious issue”. It asked the Maharashtra government to produce all the documents related to the case before January 15.

The BJP declined to comment.

‘Master of the roster’

Separately, last November, the chief justice overturned an order by Chelameswar that referred a case to a bench of the five senior-most judges. At the time, Misra said he was the “master of the roster”.

The CJI had given the order a day after a two-judge bench headed by Justice Chelameswar had passed an order that a five-judge bench of senior-most judges in the apex court should be set up to consider an independent probe into a corruption case in which bribes were allegedly taken in the name of settling cases pending before Supreme Court judges.

Holding that the Chief Justice was only the first among equals, the four judges contended that there were well-settled and time-honoured conventions guiding the Chief Justice in dealing with the strength of the bench required or the composition thereof.

The four judges also touched upon another controversial issue, the Memorandum of Procedure (MoP) on appointment of judges over which the Supreme Court had locked horns with the government.

The government, the letter said, had not responded to the communication and “in view of this silence it must be taken that the MoP has been accepted by the government on the basis of the order of this court”.

Justice Chelameswar told the media that they were “convinced that unless this institution is protected and maintains its requirements, democracy will not survive in the country or any country... The hallmark of a democracy is independent and impartial judges.

“Since all our efforts failed... Even this morning, on a particular issue, we went and met the Chief Justice with a specific request. Unfortunately we could not convince him that we were right.”

Justice Gogoi said they were “discharging debt to the nation that has got us here”.

The government appeared to distance itself from the controversy, saying the judges should sort the issue themselves.

Minister of State for Law P.P. Chaudhary said: “Our judiciary is one of the known, recognised judiciaries in the world. It is an independent judiciary. At this stage I think no agency is required to intervene or interfere. The Chief Justice and other members should sit together and resolve. There is no question of panic.”

The Supreme Court split had an immediate political fallout, with CPI leader D. Raja saying after meeting Justice Chelameswar that Parliament will have to device methods to sort out problems like this in the top judiciary.

Two judges, Justice S.A. Bobde and Justice L. Nageshwar Rao, are understood to have called on Justice Chelameswar.

Speaking up

Some Supreme Court lawyers praised the justices’ action.

“Looking at its own flaws is the first step to correcting an institution, to deepening true constitutional democracy,” said Karuna Nundy, a Supreme Court lawyer.

But there was also criticism over the public nature of the rift. The public spat was distressing, a former attorney-general of India, Soli Sorabjee, told the India Today news channel.

“The public shouldn’t see that the judiciary is a divided house,” he said.

Asked if the chief justice should be impeached, Chelameswar said, “That’s for the nation to decide.” “I think this is the first of many things to come,” said Alok Kumar Prasanna, a lawyer and legal researcher. “It seems clear to me that there’s a war going on.”