Grey eminences

Speaking up for institutional integrity

By Mukul Kesavan
  • Published 14.01.18

Four senior Supreme Court judges have just accused the chief justice of India of misusing his prerogative as master of the roster. Unlike the US Supreme Court, where the nine justices hear every case together, the Indian Supreme Court has multiple benches of varying sizes, and the cases have to be distributed. The CJI alone has the right to distribute the cases that come up before the court amongst panels of judges called benches. The burden of the letter written to the chief justice by the judges, Jasti Chelameswar, Madan B. Lokur, Ranjan Gogoi and Kurian Joseph, is that he has violated convention by allotting important cases to benches that would not by convention have been given them, benches that the letter describes as "of their preference". The letter suggests that cases of national importance have been selectively assigned without good reason to pliant benches.

This is an extraordinary charge to make in public. A clue to the outrage that led these four judges to air their misgivings in an open letter at a press conference lies in the fact that they are the four most senior judges of the court after the chief justice himself. By convention these judges would preside over the major cases that the chief justice chooses not to hear himself. Their letter indicates that instead of this coming to pass, the chief justice has flouted clear guidelines regarding the strength and composition of benches for particular sorts of cases. The argument here seems to be that while the CJI's control of the roster ought to be nominal and the scope of his discretion strictly limited by precedent and practice, Dipak Misra has been arbitrary and opaque in the exercise of his discretion.

The first thing to notice about this very public dissent is that it is not ideological. This is not a faction of judges bound together by shared liberal, conservative or left-wing ideas. Lokur is consensually seen as a liberal judge while Chelameswar's ruling on the Haryana Panchayati Raj (Amendment) Act where he upheld a law that disqualified people not educated up to a certain degree from standing for panchayati office can be fairly described as conservative. Equally, it's hard to pigeonhole them as anti-establishment mavericks motivated by hostility towards the present government. Jasti Chelameswar was the sole dissenter in the five-judge bench that ruled that the National Judicial Appointments Commission unconstitutional, a position that clearly put him on the same side as the government in this matter.

Gogoi's presence at this very public indictment was perhaps the most visible proof that these four weren't disaffected rebels; they were mainstream judges who felt they were responding to flagrant violations of institutional propriety. Gogoi is Misra's heir-apparent; he will be the senior-most judge by the time Misra retires and the convention is that he will become the next chief justice of India. However, the process of succession is triggered by the incumbent chief justice recommending the name of his senior-most colleague and by challenging Misra's conduct in this way, Gogoi could be putting his elevation at risk. It is vanishingly rare for a figure in Indian public life to risk preferment for principle, so whether people agree with Gogoi or not, he has earned the right to their attention.

Without specifying cases, the dissenting judges were objecting to a series of benches constituted by the chief justice on important matters. An article by Dushyant Dave, a senior advocate, indicated the cases they might have had on their mind, such as Aadhaar and the case concerning the appointment of an additional director of the Central Bureau of Investigation, where judges who had heard these matters earlier were excluded from the benches that had the final word.

This confrontation had been building for a while. Late last year, Jasti Chelameswar was presiding over a bench considering the demand for an SIT investigation into an allegation that a retired Orissa High Court judge had taken a bribe to 'fix' a case being heard in the Supreme Court by a bench headed by Misra. Chelameswar took the unusual step of referring the case to a five-judge bench consisting of the five senior-most justices of the court. The chief justice took objection to this as an infringement of his prerogative as master of the roster, constituted a bench that excluded the other senior justices and pronounced on the matter. Since the case which the accused was claiming to 'fix' was one which was being heard by a bench presided by Misra himself, critics argue that the chief justice was effectively pronouncing a matter that involved him.

It would be a mistake to personalize the critique mounted by the four justices. The arbitrary and opaque allocation of cases has happened before. Dushyant Dave cites the decision of the previous chief justice, J.S. Khehar, to assign the Sahara-Birla case to a junior bench outranked by 10 more senior benches as an example. Gautam Bhatia, the legal scholar, makes the historical point that the growth in size of the Supreme Court and its enormous backlog of cases has vested enormous discretionary power in the chief justice without this discretion being hedged about by rules about transparency and accountability. The chief justice can not only constitute the benches he wants, he can also pluck out from the backlog of cases the ones he wants fast-tracked. "The Chief Justice's administrative power," writes Bhatia, "effectively transforms itself into a power to significantly influence the outcomes of cases."

It is in this context that this unprecedented public indictment mounted by these four judges must be viewed. The case allocation that triggered the protest wasn't mentioned in the letter they jointly addressed to the chief justice, but Gogoi confirmed at the press conference that they had personally met the chief justice to ask him to reconsider the assignment of the case involving the death of the judge, B.H. Loya.

Loya died in allegedly mysterious circumstances while hearing a case about the 'encounter killing' of Sohrabuddin Sheikh, a case in which Amit Shah had been charged with collusion by the CBI. The four senior judges felt that the case, given its political importance, should be assigned to a presiding judge more senior than Arun Mishra. The chief justice refused to reconsider his decision and this refusal, on Gogoi's own acknowledgment, was the proximate cause for the public airing of their concerns.

The inevitable tut-tutting that followed about washing a great institution's dirty linen in public misses the point. This has been simmering for a while; what we have seen is the pressure-cooker's lid blowing off. If we accept that these judges are acting in good faith (and I think we must because they have nothing personal to gain from blowing the whistle and Gogoi has a great deal to lose) we must also accept that their concern for the court's reputation, their insistence that the court should not be seen to bend or defer to the powerful, is a legitimate one. It takes very little to posture on abstract matters. To name a politically sensitive case as the last straw takes real courage.

It is a courage that has been conspicuously absent in that other pillar of democracy, the Fourth Estate, in the matter of the death of Loya. When a small magazine, Caravan, broke a story on the questions surrounding Loya's death it was met with deafening silence. But it's hard to suppress a bravely reported story in our interconnected world and as it seeped out into the digital space, otherwise liberal papers and news channels took it upon themselves to fact-check it. That these fact-checkers overlooked elementary errors in the 'gotcha' arguments that they produced to discredit Caravan's account tells us something about how difficult it is for an individual or institution to plot a straight course in India today. Four individual judges spoke out in the cause of institutional integrity on Friday; we are all in their debt.