If despite a mountain of evidence proving the contrary, there is a persistent belief that post-independence India’s judiciary is an institution to be proud of, its because of the upper judiciary, particularly the Supreme Court of India. In several brave and well-reasoned judgements and interpretations of the Constitution its judges have safeguarded the fundamental rights and civil liberties of the citizenry against legislation, orders and directives of often powerful Central and state governments. Indeed over the past 70 years since independence, India’s Supreme Court has built up an impressive body of case law which has protected and expanded the fundamental rights of citizens.
But now, even this venerable institution of the higher judiciary is under a cloud. On January 12, four of the most senior justices of the Supreme Court called and addressed an unprecedented press conference in Delhi to complain about Chief Justice Dipak Misra, alleging that he was assigning cases of national importance to benches of relatively junior judges, excluding senior judges. In this press conference, the four senior justices — J. Chelameswar, Ranjan Gogoi, Kurian Joseph and M.B. Lokur — informed the country that all efforts to persuade Chief Justice Misra to constitute benches which include the courts senior-most judges to hear cases of national and constitutional importance had failed because the CJI insists that he is the ‘master of the roster and that in any event, all justices of the Supreme Court are of equal status.
The latter argument became untenable after the apex court invalidated the Central governments National Judicial Appointments Commission Act, 2015, which proposed a more broad-based system (including members of civil society described as eminent persons) for selecting Supreme Court and high court judges. The apex court favoured continuation of the collegium system under which five senior-most judges of the court — including the chief justice — appoint all upper judiciary judges. Through this judgement, the Supreme Court in effect made a division between the senior collegium and other 20 judges of the apex court. Implicitly, it also established parity between the five-member judges of the collegium.
Consequently, the actions of Chief Justice Dipak Misra in constituting and reconstituting benches of the apex court suo motu without any reference or consultation of the four other member-judges of the collegium, were highly improper and dictatorial. Therefore, the action of the collegium’s other senior judges to bring this to the attention of the public — after all efforts to persuade the chief justice of the error of his ways failed — was necessary to protect the integrity and well-being of the Supreme Court.
The four senior collegium member judges quite rightly resolved that considerations of protocol and propriety should not be allowed to permit the Supreme Court — perhaps the sole institution which retains the respect of the public — to become the fiefdom of the chief justice.