Four senior judges of the Supreme Court on Friday mounted a virtual revolt against the chief justice, listing a litany of problems that they said are afflicting the country's highest court and warned they could destroy Indian democracy.
The unprecedented move at a joint news conference by the four judges including Justice J Chelameswar, the second senior judge after the Chief Justice of India, left the judiciary and observers stunned, leaving uncertain how this open dissension in the hallowed institution would be resolved.
Rahul Gandhi on top four SC judges: ‘It is unprecedented, points raised by judges need to be looked into carefully'
What top judges said in Press Conference -
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.
In a scathing criticism and unvarnished self-reflection of the Supreme Court, Chelameswar, who was accompanied by Justices Ranjan Gogoi, M B Lokur and Kurian Joseph at the press conference, said they had met Chief Justice Dipak Misra this morning and "raised issues affecting the institution".
"Unless this institution is preserved, democracy will not survive in this country," Justice Chelameswar said, adding that it was "extremly painful" to hold the press conference in such a manner. The press conference was held at Chelameswar's residence.
He said all the four judges "failed to persuade CJI that certain things are not in order and therefore you should take remedial measures. Unfortunately our efforts failed.
"And all four of us are convinced that democracy is at stake and many things have happened in recent past," he said.
Asked what these issues were, he said they included the "allocation of cases by CJI". The remarks assume significance as the Supreme Court today took up for consideration the issue of alleged mysterious death of special CBI judge B H Loya, who was hearing the sensitive Sohrabuddin Sheikh encounter case.
Justice Chelameswar said "we owe a responsibility to the institution and the nation. Our efforts have failed in convincing CJI to take steps to protect the institution."
"This is an extraordinary event in the history of any nation, more particularly this nation and an extraordinary event in the institution of judiciary ... It is with no pleasure that we are compelled to call this press conference.
But 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," he said.
The four judges, in their seven-page letter to the CJI that was released to the press, said, "It is too well settled in the jurisprudence of this country that the chief justice is only first amongst the equals -- nothing more or nothing less."
At the news conference, all the judges rubbished questions on whether they have broken ranks and said that they will start doing things which they do.
Justice Gogoi said "nobody is breaking the rank and it is discharge of debt to nation which we have done."
Gogoi, who would be succeeding Misra as CJI in October this year, said that, "it's a discharge of debt to the nation which we have done."
Asked whether they wanted the Chief Justice to be impeached, Justice Chelameswar said, "let the nation decide."
Soon after the press conference ended, the CJI called Attorney General K K Venugopal for a meeting, court sources said.
Highly placed government sources said the issues raised by the four judges are an "internal" matter of the judiciary, indicating that the government is unlikely to interfere.
However, the sources also added that the apex court should settle the issue at the earliest as the faith of the people in the judiciary is at stake.
"It is a sad day for the judicial system," said Congress leader Ashwani Kumar, who is also a senior advocate.
WATCH HERE THE FULL VIDEO OF PRESS CONFERENCE
Unprecedented, says legal fraternity
The decision of four SC judges to hold a press conference was later termed as "unprecedented" by the legal fraternity, with some experts terming it as "shocking" while some others saying there could have been some compelling reasons for such a move.
Some legal luminaries also said the turn of events had raised a question mark about the credibility of the judicial system.
Senior advocates K T S Tulsi, former union law ministers Salman Khurshid and Ashwini Kumar, former judges Justice R S Sodhi and Justice Mukul Mudgal expressed concern over the unprecedented press conference, while senior advocate Indira Jaising welcomed the move and congratulated the four judges.
BJP leader and Rajya Sabha MP Subramanian Swamy said when such judges come out to do a press conference, it is necessary to take them seriously rather than finding fault.
Swamy said the Prime Minister should take an initiative and contact the Chief Justice and the four judges to resolve the whole situation through the process of consultation.
However, Justice Sodhi questioned the move of the top judges approaching the media and asked how they can administer the Supreme Court through press conferences.
"I am so pained at the outcome of the things... It is appalling. How can you administer Supreme Court by press conference. Are you going to hold a referendum and ask people what is right and wrong," Justice Sodhi said.
Justice Mudgal said the four senior-most judges were bringing the issues to light which according to them was necessary to be brought to the public notice.
He said they must have had compelling reasons to go public and "they are not publicity hungry judges and do not crave for unnecessary publicity".
Terming the presser as "a welcome step", senior lawyer Indira Jaising congratulated the four judges for the "bold move" and said: "As they said they are discharging a debt to history, namely to let the nation know that something is going wrong and needs to be corrected."
She said the intention of the press meet was "to build a consensus to owe a debt of duty to the institution as a whole and ensure that this institution survives for you and me."
Advocate Prashant Bhushan also termed the event as unprecedented and said the judges took extreme decision to hold press conference under compelling circumstances.
"These four judges are very responsible. If they are doing this, the situation would have definitely gone out of control. They said the CJI was misusing his administrative powers to allot all cases," Bhushan said.
Senior lawyer KTS Tulsi said the step was quite shocking and one had never thought that "things would come such far compelling the four senior-most judges to adopt this course of action."
"I am sure they (four judges) have exhausted all other remedies. One could see pain on their faces while they were speaking. The whole matter is with respect to judicial propriety. The question is of natural justice. Whatever is the law for common man, it is applied much more rigorously as far as judges are concerned because they must always be above suspicion," Tulsi said.
Similarly, former union minister and senior advocate Khurshid said there were some deep differences among the judges about how the apex court should function, terming it as a matter of anguish.
"I can only hope that conversation among the judges will not snap and will continue and that with accommodation and logic it will be settled. It has come too far," Khurshid said.
Former Law Minister Ashwini Kumar said it was "a sad day for Indian democracy."
"This press conference is a strike at the root of the institutional integrity of the higher judiciary. It has raised question marks about the credibility of the system as such and has directly cast aspersions at the head of the Indian judiciary.
"I think the people of this country who have had highest regard to the highest judiciary will now be forced to think aloud as to whether we have gone gravely wrong somewhere," he said.
Accompanied by three senior judges Justices Ranjan Gogoi, M B Lokur and Kurian Joseph, Justice J Chelameswar himself said "this is an extraordinary event in the history of any nation, more particularly this nation and an extraordinary event in the institution of judiciary ... It is with no pleasure that we are compelled to call this press conference.
"But 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."
WATCH VIDEO: KEY HIGHLIGHTS OF TOP SC JUDGES
Following is the text of the letter sent by SC Judges to CJI-
"Dear Chief Justice, It is with great anguish and concern that we have thought it proper to address this letter to you so as to highlight certain judicial orders passed by this court which has adversely affected the overall functioning of the justice delivering system and the independence of the high courts besides impacting the administrative functioning of the office of the Hon'ble Chief Justice of India.
From the date of establishment of the three chartered High Courts of Calcutta, Bombay and Madras, certain traditions have been well established. The traditions were embraced by this court which came into existence almost a century after the above mentioned courts. These traditions have their roots in the Anglo-Saxon jurisprudence and practice.
One of the well settled principles is that the Chief Justice is the master of the roster with a privilege to determine the roster, necessity in multi numbered courts for an orderly transaction of business and appropriate arrangements with respect to matters with which member/bench of this court (as the case may be) is required to deal with which case or class of cases is to be made. The convention of recognising the privilege of the Chief Justice to form the roster and assign cases to different members/benches of the court is a convention devised for a disciplined and efficient transaction of business of the court but not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues. It is too well settled in the jurisprudence of this country that the chief justice is only the first amongst the equals - nothing more or nothing less.
In the matter of the determination of the roster there are well-settled and time honoured conventions guiding the chief justice, be the conventions dealing with the strength of the bench which is required to deal with a particular case or the composition thereof.
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.
Any departure from the above two rules would not only lead to unpleasant and undesirable consequences of creating doubt in the body politic about the integrity of the institution. Not to talk about the chaos that would result from such departure.
We are sorry to say that off late the twin rules mentioned above have not been strictly adhered to. There have been instances where cases having far reaching consequences for the nation and the institution have been assigned by the chief justices of this court selectively to the benches "of their preference" without any rationale basis for such assignment. This must be guarded against at all costs.
We are not mentioning details only to avoid embarrassing the institution but note that such departures have already damaged the image of this institution to some extent.
In the above context, we deem it proper to address you presently with regard to the order dated October 27, 2017 in RP Luthra vs Union of India to the effect that there should be no further delay in finalising the memorandum of procedure (MoP) in the larger public interest. When the MoP was the subject matter of a decision of a Constitution Bench of this court, in Supreme Court Advocates-on-record Association and Anr Vs Union of India [(2016) 5 SCC1] it is difficult to understand as to how any other bench could have dealt with the matter.
The above apart, subsequent to the decision of the Constitution Bench, detailed discussions were held by the collegium of five judges (including myself) and the MoP was finalised and sent by the then Hon'ble Chief Justice of India to the Government of India in March 2017. The Government of India has not responded to the communication and in view of this silence, it must be taken that the MoP as finalised by the Collegium has been accepted by the Government on the basis of the order of this court in Supreme Court Advocates-on-record Association (Supra). There was, therefore, no occasion for the bench to make any observation with regard to the finalisation of the MoP or that that issue cannot linger on for an indefinite period.
On July 4, 2017, a bench of seven judges of this court decided in Re, Hon'ble Justice C S Karnan [(2017)1 SCC1]. In that decision (referred to in RP Luthra), two of us observed that there is a need to revisit the process of appointment of judges and to set up a mechanism for corrective measures other than impeachment. No observation was made by any of the seven judges with regard to the MoP.
Any issue with regard to MoP should be discussed in the Chief Justices' conference and by the full court. Such a matter of grave importance, if at all required to be taken on the judicial side, should be dealt with by none other than a constitution bench.
The above development must be viewed with serious concern. The hon'ble Chief Justice of India is duty bound to rectify the situation and take appropriate remedial measures after a full discussion with the other members of the collegium and at a later stage, if required, with other hon'ble judges of this court.
Once the issue arising from the order dated October 27, 2017, in RP Luthra Vs UOI, mentioned above, is adequately addressed by you and if it becomes so necessary, we will apprise you specifically of the other judicial orders passed by this court which would require to be similarly dealt with.
With kind regards,
Justice J Chelameswar, Justice Ranjan Gogoi, Justice Madan B Lokur and Justice Kurian Joseph.
(With inpits from PTI)