CJI may not make any changes, say top SC officials

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January 13, 2018 1:03 am Published by

NEW DELHI: High-level Supreme Court officials said Chief Justice Dipak Misra was unlikely to effect any procedural changes in the wake of the criticism by senior judges and added that the government won’t interfere in the affairs of the country’s highest court since it was an internal matter.

A senior government functionary said this was an internal matter of the judiciary and should be resolved by it. “The government has no role here,” the functionary said. Attorney-General KK Venugopal, the government’s highest law officer, called for harmony on the bench.

“What has happened today could have been avoided,” he said. “The judges will now have to act like statesmen and ensure that the divisiveness is wholly neutralised and total harmony and mutual understanding prevail in future. This is what all of us at the bar want and I am sure that the judges, including the CJI, will rise to the occasion.”

The SC officials cited above dismissed criticism levelled by the four judges against the manner in which the CJI assigned court work, saying the comments were “unfair” and “unwarranted”.

An unruffled CJI continued to hold hearings as usual for much of the day. “Cases are allocated among all judges in a fair manner. There is constant consultation,” a high-level judicial source told ET on condition of anonymity shortly after the unprecedented development involving judges number two, three, four and five of the top court. “In any case, no judge can assign a case to himself,” the source said.

The reference was to the second senior-most judge, Jasti Chelameswar, bypassing rules that say the CJI will assign cases, and marking matters to himself recently. Justice Chelameswar had courted controversy when he had taken upon himself the task of hearing a public interest litigation (PIL) demanding a Central Bureau of Investigation inquiry into a medical scam that seemed to question role of the CJI. This had prompted CJI Misra to constitute a five-judge bench to reiterate the power of the Chief Justice to fix the roster for each judge.

The source said no judge can take upon himself the task of dealing with a case on his own. “The chief justice is the master of the (court’s business) roster,” the source said. The seniormost four judges after the CJI — Justices J Chelameswar, Madan B Lokur, Kurian Joseph (who will retire shortly) and Ranjan Gogoi (who will succeed Misra when he demits office in October) — abandoned court work midway Friday to hold the press conference.

Sources said the four were worried about public perception that they were not resisting increasing politicisation of the judiciary and this would eventually “reflect on their competence” and the institution’s “credibility”.

The CJI, on his part, continued to work through his crowded roster for much of the day except for an hour-long break at noon. There was no formal response to the accusations from his office.

In a letter released to the media, the top four judges contended that matters were being placed before “preferred benches” and warned that this must be “guarded” against.

Activist lawyers such as Prashant Bhushan and senior advocate Dushyant Dave have of late been vocal about this “trend”, especially in “politically sensitive” cases.

They say it began with the Sahara-Birla diaries under former CJI JS Khehar and has continued since then to the latest flashpoint — assignment of a PIL filed by a journalist demanding a probe into the death of CBI Judge BH Loya to a specific bench.

The four, who raised the banner of revolt against the manner in which court administration was being run, confirmed at the press conference that this was the latest sore point. The case was allotted to a particular bench against “convention and practice”, said a high-level source close to the dissident judges.

“A case which cannot be heard by the CJI must be heard by the number two and so forth,” the source said, citing convention. The bench, which had earlier thrown out the Sahara-Birla case, insisted at the hearing on Friday that it would deal with the case despite pleas to let the high court decide the case.

The quartet also aired concern over the memorandum of procedure (MoP) governing the appointment of judges being settled by bypassing high court chief justices and the full court.

This needed to be addressed, they said, indicating possibly that the shadow-boxing between the CJI and his brother judges would not end for now. The CJI had quashed any attempts to deal with the issue on the judicial side, saying it wasn’t something that could be decided in open court. The convention is that the two top constitutional functionaries — the CJI and the prime minister — sort out the MoP.

The four dissident judges want a five-judge Constitution Bench to deal with MoP on the judicial side, if at all. They also want other changes in the existing system of disciplining errant judges. Currently, a judge can only be removed through impeachment, a long, political process that has never worked in the annals of India’s independent judiciary.

The dissident judges want alternative punishment short of impeachment, a demand that may boost calls to tighten the law and give the government a chance to bring in another National Judicial Appointments Commission-type of legislation, which critics fear would erode the judiciary’s independence. Reformers however say the institution could do with a cleanup.


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