An unprecedented rebellion has broken out in the Supreme Court of India. Four senior judges of the Court – Justice Chelameswar, Justice Gogoi, Justice Kurien, and Justice Lokur – have announced to the country that the administration of the Supreme Court was not in order, and have now released an undated letter that they wrote to the Chief Justice of India, Justice Dipak Misra. According to the judges, the letter was written to the CJI “a couple of months ago.”
In the letter, the judges have criticised the behaviour of the CJI, especially with respect to the way the roster is maintained and the manner in which cases are assigned to the benches.
“The convention of recognising the privilege of the CJI to form the roster and assign cases to different members/benches of the Court is a convention devised for a disciplined and efficient transition of business of the Court, but not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues,” the judges said in the letter.
“It is too well settled in the jurisprudence of this country that the Chief Justice is only the first among 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 the particular case or the composition thereof,” the letter said.
“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 matter which ought to be heard by appropriate benches, both composition-wise and strength wise with due regard to the roster fixed,” it further added.
“Any departure from the above two rules would not only lead to unpleasant and undesirable consequences of creating doubt in the body politick for the integrity of the institution. Not to talk about the chaos that would result from such a departure,” the judges further said.
The judges wrote that the twin rules the CJI is supposed to follow have not been strictly adhered to in recent times.
“There have been instances where case having far-reaching consequences for the Nation and the institution had been assigned by the Chief Justices of this court selectively to the benches in “of their preference” without any rationale basis for such assignment. This must be guarded against at all costs. We are not mentioning details to avoid embarrassing the institution, but note that such departures have already damaged the image of this institution to some extent,” they said.
The letter then refers to the October 27 order of a two-judge bench of the SC in the RP Luthra vs Union of India case. The order had questioned the delay by the government in finalising the Memorandum of Procedure to be followed for the appointment of judges to the higher judiciary. However, this order was recalled by the Supreme Court – by a bench headed by the CJI.
It now appears that the order was recalled after the four judges wrote to him on the problems with the October 27 judgement.
The judges had criticised the two-judge bench’s order, writing, “When the Memorandum procedure was the subject matter of a decision of a Constitution Bench of this court in SC Advocates-on-Record Association and Anr. vs Union of India [(2016) 5 SCC 1] it is difficult to understand how any other bench could have dealt with the matter.”
“The above apart, subsequent to the decision of the Constituion Bench detailed discussions were held by the Collegium of 5 judges (including yourself). The Memorandum of Procedure was finalised and sent by the then honourable CJI to the govt 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 Memorandum of Procedure as finalised by the collegium has been accepted by the Government of India on the basis of the order of this Court,” the letter said.
“There was therefore no occasion for the bench to make any observation with regard to the finalisation of the Memorandum of Procedure,” they said.
In Friday's press conference, Justice Chelameshwar said, "We wanted a particular thing to be done in a particular manner. It was done -- but in such a way that it raised further questions about integrity of the Supreme Court."