Fissures in the Supreme Court burst out in the open on Friday when its four senior-most judges took an unprecedented way of addressing the media to accuse the Chief Justice of India (CJI) Dipak Misra of breaching rules in assigning cases to appropriate benches, with one of them pointing to the plea regarding the mysterious death of Special CBI judge B.H. Loya.
At a hurriedly called press conference at his residence, Justice J. Chelameswar and three other colleagues said the Supreme Court administration was "not in order" and their efforts to persuade Justice Misra even this morning "with a specific request" failed, forcing them to "communicate with the nation" directly.
The four judges -- Justices Ranjan Gogoi, Kurian Joseph and Madan B. Lokur besides Justice Chelameswar -- released a letter they wrote to Justice Misra a couple of months ago, conceding that he was the master of roster but that was "not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues".
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Justice Chelameswar himself described as an "extraordinary event" the news conference during which he said, "sometimes administration of the Supreme Court is not in order and many things which are less than desirable have happened in the last few months."
Unless this institution is preserved, "democracy will not survive" in this country, Chelameswar said in the unscheduled press conference, in the first of its kind event in independent India.
Did PIL on Judge Loya's death triggered the revolt?
When asked specifically if the four judges were upset over reference of the matter seeking a probe into the suspicious death of Judge Loya, Justice Gogoi said: “Yes”.
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.
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Pleas seeking 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.
In a seven-page letter, 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".
Other issues that led to the clash
The clash among the judges in the highest court also comes in the wake of a controversial order in November in which Justice Misra declared that the Chief Justice "is the master of the roster" having exclusive power to decide which case will go to which judge.
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.
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"A necessary corollary to the above mentioned principle is the members of any multi-numbered judicial body, including this court, would not arrogate to themselves the authority to deal with and pronounce upon matters which ought to be heard by appropriate benches, both composition-wise and strength-wise with due regard to the roster fixed," they wrote in the letter.
They said any departure from the two rules would not only lead to "unpleasant and undesirable consequences of creating doubt in the body politic about the integrity of the institution" but would create "chaos".
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".
Rahul Gandhi demands investigation, BJP advices him not to ‘politicise internal matters’ of judiciary
Opposition parties demanded a “thorough probe” into issues flagged by the four judges of the top court over its functioning.
Terming the concern voiced by the judges as "extremely important", Congress president Rahul Gandhi also called for a probe into the mysterious death of judge BH Loya.
“They have mentioned that there is a threat to democracy, I think it needs to be looked into, it needs to be looked into carefully. They have also made a point about Judge Loya’s case. That is also something that needs to be investigated properly. It needs to be looked at from the highest levels of the Supreme Court. This type of thing has never happened before. It is unprecedented. And I think all citizens who love the idea of justice, who believe in the Supreme Court, are looking at this issue,” said Rahul.
This prompted a strong reaction from the ruling BJP that accused its rivals of "politicising internal matters" of the judiciary.
The BJP shot back, with its spokesman Sambit Patra accusing the Congress of politicising internal matters of the judiciary.
On the Congress seeking a probe into Loya's death by the highest level of the Supreme Court, Patra said the main opposition party should refrain from commenting on issues pending before the Supreme Court.
"Politics by political parties of the country, outside the judicial purview, trying to drag issues which are internal to the judiciary and politicise that is something which should not be attempted. The Congress party has attempted the same, it has tried its best to politicise internal issues of judiciary. And we firmly believe that this is wrong," Patra told reporters here.
Patra said the Congress should know it has lost "elections after elections" since 2014, when the BJP stormed to power and the Modi government was formed.
"Any attempt to fish for opportunity to politicise issues when none exist is politically wrong," he said.
On Gandhi calling for a probe into the death of Loya, Patra said none has the right to comment on issues that are pending before the Supreme Court.
CPI(M) general secretary Sitaram Yechury said a thorough investigation was required to understand how the independence and integrity of the judiciary was getting "affected", after the judges said many "less than desirable" things had taken place in the apex court.
He said it was necessary for the three wings of democracy -- the executive, the legislature and the judiciary - to ensure that whatever issues had been raised were corrected.
Former Rajya Sabha member Sharad Yadav called it a "dark day" for democracy, saying for the first time sitting SC judges had to speak before the media to highlight complaints.
"It is a dark day for democracy that even the judges are working under pressure and without independence," he said.