The highest judicial body of the country, namely the Supreme Court of India, is in deep crisis. Never before in our history have dissensions within the court come out so openly in the public domain. Public memory is no doubt short, but no one would have forgotten how the four senior-most judges of the Supreme Court, Justices Jasti Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph addressed the media on January 12 this year and made public the letter they had written to the Chief Justice of India the same day. What were the main points that the four judges made in that letter? They said:
1. That certain judicial orders passed by the Court had adversely affected the overall functioning of the justice delivery system and the independence of the High Courts besides impacting the administrative functioning of the office of the Chief Justice of India.
2. The Chief Justice of India is "only the first amongst equals, nothing more or nothing less" yet he is the master of the roster. They complained that there have been instances where cases having far-reaching consequences for the nation and they had been assigned by the Chief Justices of the court selectively to the benches "of their preference" without any rational basis for such assignment.
3. The judges refrained from mentioning details of these cases only in order to avoid embarrassing the institution, though they believed that such departures from established norms have already damaged the image of the Supreme Court to some extent.
4. After a detailed discussion held by the collegium of five judges, the Memorandum of Procedure was finalised and sent by the then Chief Justice of India to the government of India in March 2017. Having noted that the government of India had not responded to the communication about the collegium, the four judges suggested that it must be taken that the the MOP had been accepted by the government of India.
5. Noting that the above developments must be viewed with serious concern, they said that the Chief Justice of India was duty-bound to rectify the situation and take appropriate remedial measures after a full discussion with the others members of the collegium and, if required, with the other judges of the Supreme Court.
The points made by the four judges brought out the systemic weaknesses prevailing in the Supreme Court and reflected poorly on the Chief Justice of India. While the government of India and the Chief Justice maintained a discreet silence on the points raised by the four judges, some do-gooders, including the Attorney General of India, jumped into the fray and rushed to assure the people of the country that all was well and that the four judges had made peace with the Chief Justice. It was forgotten that the issues raised by the judges in the public domain were not a personal matter but issues of grave concern for the polity as a whole. If it were not so, Justice Chelameswar would not have told the media in the interaction of January 12, 2018 that the administration of the Supreme Court was not in order and many things that were less than desirable had transpired in the last few months. Justice Chelameswar went on to add that unless the institution of Supreme Court was preserved, democracy would not survive in this country. This dire warning was given a quiet burial in this country. On the other hand, these so-called intermediaries created the completely erroneous impression that the judges had tea with the Chief Justice and the whole issue had been amicably resolved. Nothing could be further from truth as subsequent events revealed.
In a confidential communication dated March 21, 2018 addressed to the Chief Justice of India with copies marked to all the judges of the Supreme Court, Justice Chelameswar raised the issue of the elevation of Shri Krishna Bhatt, a district and sessions judge, to the Karnataka High Court, as recommended by the Supreme Court collegium. It appears that in 2014, Shri Krishna Bhatt had sent a report to the High Court against the conduct of one Ms. Shashikala, judicial magistrate, first class, on the basis of which the High Court had registered a vigilance case against her. With Shri Krishna Bhatt's elevation around the corner, Ms. Shashikala chose to complain against him of sexual harassment. The former Chief Justice of the Karnataka High Court had asserted that the allegations against Shri Krishna Bhatt were incorrect and concluded that they were made only to malign him.
Justice Chelameswar in his letter strongly objected to the fact that the government of India, after withholding his elevation, had contacted the Chief Justice of the Karnataka High Court, directly ignoring the collegium of the Supreme Court which had made the recommendation. Justice Chelameswar also strongly objected to the conduct of the Chief Justice of Karnataka whom he accused of being "more loyal than the king" for responding to the communication of the government of India. It is interesting to note that Justice Chelameswar begins his letter with a quote from Lord Brigham that "there are countries in the world where all judicial decisions find favour with the powers that be, but they are probably not places where any of us would wish to live". He ends his letter with a quote from Justice Robert H Jackson of the US Supreme Court that men are more often bribed by their loyalties and ambitions than by money, and goes on to tell the Chief Justice that the bonhomie between the judiciary and the government in any state sounds the death knell to democracy.
Justice Chelameswar in a free and frank interview to Karan Thapar on April 7, 2018 reiterated many of the points he had made earlier. He disclosed further that the Memorandum of Procedure was responded to by the government in July 2017 according to a press statement by the Law Minister, but Chief Justice had not shared the contents of the government's communication with even the judges in the collegium. In the meanwhile, the Law Minister of India has joined issue with Justice Chelameswar publicly on the question of the elevation of Shri Krishna Bhatt and the allegations against him.
Justice Chelameswar, followed by Justice Joseph, has declared that he is not going to accept any post retirement position offered by the government.
Justice Chelameswar and his three colleagues have raised some highly disturbing but thought-provoking issues about the functioning of the judicial system in our country. We can ignore them only at our peril. I salute them for their courage and frankness and hope that that the Supreme Court of India and the government of India seriously ponder over the issues raised by them and set them right without delay. In the meanwhile, a three-judge bench of the Supreme Court headed by the Chief Justice himself has ruled that the Chief Justice is an institution in himself and his powers as the master of the roster are not to be challenged. Would it not have been better if this observation had come from a bench he was not a part of?
More points to ponder.