Never before in the history of Indian judiciary did four senior, sitting judges leave the court rooms and jointly address a Press conference as on January 12, 2018. They are Justice J Chelameswar, Justice Ranjan Gogoi, Justice Madan B Lokur and Justice Kurian Joseph. They are the senior-most judges after, of course, Chief Justice of India Dipak Mishra.
One can argue endlessly on whether what they did was right or wrong. One former Chief Justice of the Delhi High Court has already demanded impeachment of the four on the specious plea that they denigrated the office of the CJI. On the other hand, there are many who empathise with the judges who had to resort to an extraordinary action to deal with an extraordinary situation in the Supreme Court.
Ultimately, history will decide whether what they did was right or wrong. There was a time when Supreme Court judges, like Army chiefs, would walk into retirement, enjoy quality time with their grandchildren, attend an occasional book-release function or write their memoirs. They certainly deserve the comforts of retirement after spending a life, either at the Bar or on the Bench.
Nowadays, Supreme Court judges look for and obtain post-retirement jobs as chairmen of various commissions. One of them, who retired as the Chief Justice of India, accepted the post of Governor, though as CJI he had sworn in the President of India. He did not see it as a demotion, reporting to the same President whom he had sworn in. What mattered to him were the perks of the gubernatorial post and the comfort it brought.
One thing is for certain. The four judges have scuppered their chances of getting post-retirement jobs. One even doubts whether Justice Gogoi would be able to succeed CJI Mishra. As it is, Justice Chelameswar would not be able to succeed Mishra, as he was deprived of his seniority in a strange manner.
In the apex court, seniority depends on the date and time a person is sworn in as a judge. Even if a younger person is sworn in as a judge a few minutes before an elder person is sworn in, the former is considered senior.
Though seniority is now the sole consideration for the post of CJI, it is doubtful whether Justice Ranjan Gogoi would get a chance in the light of what happened on Black Friday. I can only hope that mine is a misapprehension. The point to be noted is that the four stand only to lose and not gain by taking the unprecedented step of holding a Press conference. Nobody can accuse them of ganging up on the basis of their identity.
While Justice Chelameswar is from Andhra Pradesh, Justice Gogoi is the first judge from the Northeast to reach the coveted position, Justice Lokur is from Delhi and Justice Kurian Joseph is from Kerala. All of them are men of integrity and have held the posts of Chief Justices of various High Courts before moving to Delhi as judges of the Supreme Court. They certainly know how a Chief Justice should conduct himself as they themselves held such posts, though in the high courts.
As they have obliquely mentioned in the letter they wrote to Justice Dipak Mishra, the traditions of the Supreme Court are not as old as those of some of the High Courts like those of Bombay, Madras and Calcutta which came into being in 1861 as a response to the First War of Independence in 1857. They had all the powers to hear all kinds of cases and their decisions were binding on the Indian state. This continued till the creation of the Federal Court of India under the Government of India Act, 1935.
Mehr Chand Mahajan, who was a judge of the Supreme Court when it was formed in 1950, and who became the third Chief Justice of India, had in his autobiography narrated some of the teething problems the court faced.
Incidentally, he served as the Prime Minister of Jammu and Kashmir before becoming a judge of the apex court. As he mentioned in his memoirs, it was the traditions of the three high courts that the apex court drew upon. Under this, the Chief Justice is just the first among the equals. He is like the Prime Minister who is the first among equals.
What we have in India is the Cabinet system of government, not the Prime Minister system of government as some seem to think. All decisions of the Union government are taken by the Cabinet, not by the Prime Minister. Even when a PM takes a decision, it has to be endorsed by the Cabinet. There was a controversy that Prime Minister Indira Gandhi had decided to impose the Emergency on the nation without consulting her Cabinet.
Nonetheless, the Prime Minister enjoys greater power than the CJI, for he can choose anyone like KJ Alphons as his ministerial colleague. He just has to write a letter to the President that such and such minister does not enjoy his confidence and he will soon cease to be a minister. The CJI cannot do anything of the kind. The only way a judge can be removed is by way of impeachment.
The only special power that the CJI enjoys is his power to prepare the roster. It is a system under which the CJI constitutes the benches to hear various cases. The question is whether the power is absolute and, therefore, unquestionable. There is a saying that power corrupts and absolute power corrupts absolutely. This seems to have happened in the case of Justice Dipak Mishra too.
He shot into fame when he ordered compulsory playing of the national anthem in cinema halls across the country. Thank Goodness, the same court has decreed after a year that it is for the cinema hall proprietors to decide whether Jana Gana Mana should be played or not.
Few people realise that Justice Mishra’s verdict was the result of a clever, if not fraudulent, stratagem. Let it be clear, there is no law which makes it mandatory for the citizen to sing the national anthem. Nor is singing Tagore’s composition, supposedly in praise of the British crown, a sign of patriotism. Showing disrespect to the anthem is, however, an altogether different cup of tea.
Justice Mishra has every right to be a warrior of the anthem. He was a judge of the Madhya Pradesh High Court when the film Kabhi Khushi Kabhi Gham (KKKG) was released. It was the first film where wealth was celebrated, unlike Adoor Gopalakrishnan's first film Swayamvaram where the newly married couple did not know from where their next meal would come. Film makers like Satyajit Ray and Ritwik Ghatak allegedly “glamourised” poverty.
The film KKKG has a scene where Jana Gana Mana is sung. A patriotic Madhya Pradeshi with the name Shyam Narayan Chouksey went to the Jabalpur High Court pleading that the scene was outrageous as the people in the theatre did not stand up the moment Jana Gana Mana was heard. The judge who heard the case was the same Dipak Mishra, who was, of course, much younger at that time.
He ordered removal of the impugned scene and said, "National Anthem, as has been indicated, is the symbol of history, unity, and pride…The national anthem is pivotal and centripodal to the basic conception of sovereignty and integrity of India. It is the marrow of nationalism, hypostasis of patriotism, nucleus of national heritage, substratum of culture and epitome of national honour.”
All his hyperbole, bordering on the ludicrous, did not convince the Supreme Court which heard an appeal against Justice Mishra's verdict. It not only set aside the HC verdict but also said that "national anthem which is exhibited in the course of exhibition of newsreel or documentary or in a film, the audience is not expected to stand as the same interrupts the exhibition of the film and would create disorder and confusion, rather than add to the dignity of the national anthem."
Curiously, the key players in the verdict on November 30, 2016, were also the same -- petitioner Chouksey who is described in the HC verdict as "a member of certain social and spiritual organisations and has taken upon himself the burden of canvassing national temper and launch a campaign, in the name of the ‘Jeevan Jagriti Prayas’ to inculcate national spirit amongst people" and Justice Mishra.
How did Justice Mishra hear the same case which he had heard as a High Court judge? How come that the petitioner and the judge were the same? Should not he have given the case to some other judge? Why did he not recuse himself from the case?
Obviously, he wanted to issue the order forcing all cinema theatres to play the national anthem. If it was not misuse of power, what else was it? Alas, nobody looked at this aspect of the verdict.
Justice Mishra became the poster boy of a certain kind of patriotism being promoted by those in power. He forgets the fact that he is the Chief Justice only because he is senior to the others. It is not because he is brilliant like Justice VR Krishna Iyer who, by the way, did not even become the CJI. It is, therefore, curious that he does not give any weightage to the seniority of his colleagues.
It was just a month ago that senior Supreme Court lawyer Rajeev Dhawan quit practice in protest against the humiliation he suffered at the hands of Justice Mishra in two cases dealing with the Centre-Delhi government relations and the Ayodhya issue.
In his letter to the CJI, he wrote: “After the humiliating end to the Delhi case, I have decided to give up court practice. You are entitled to take back the Senior Gown conferred on me, though I would like to keep it for memory and services rendered.” The judge had mentioned that he was not worthy of the gown!
Exactly a month earlier, i.e., on November 11, 2016, advocate Prashant Bhushan was humiliated when he questioned the CJI’s decision to overrule the decision of Justice Chelameswar and Justice Abdul Naseer in what is known as the medical college bribery scam. Incidentally, the petition under reference was seeking an independent SIT investigation into a CBI FIR effectively registered against the judges of the Supreme Court, including the CJI, particularly the CJI.
Ordinarily, Justice Mishra should not have interfered in the decision of Justice Chelameswar and Justice Naseer to constitute a five-member bench to hear the case. It is because of his interference that Bhushan was compelled to tweet that CJI Dipak Misra presided over a "hand-picked bench to override yesterday's order" by another top court bench.
Unfortunately, an impression has gained ground that judgements are now dependent upon the person hearing the case, rather than the arguments presented before him or her.
Take the Loya case. The CBI judge, BH Loya, who was hearing the Sohrabuddin Sheikh encounter case, died of a cardiac arrest in Nagpur on December 1, 2014, when he was attending the wedding of a colleague’s daughter. The news-magazine Caravan reported the judge’s sister as saying that her brother was offered Rs 100 crore as bribe for a favourable verdict. It meant exoneration of Amit Shah, who was a minister when the encounter killing happened and was BJP president when the judge died in mysterious circumstances.
Curiously, a national newspaper deemed it necessary to prove the Caravan report wrong, though its report raised more questions than the number of questions it tried to answer. It was obvious that powerful forces were at work to prove that he died indeed of a cardiac arrest, though what induced the cardiac arrest remained a mystery.
That the Supreme Court has decided to hear the plea for a probe into the death of Judge BH Loya is a welcome development. Given the importance of the case, it should be heard by a bench consisting of senior judges. If junior judges are hand-picked to hear the case with certainty of the outcome, as when Justice Mishra heard the Madhya Pradeshi’s petition for compulsory playing of the national anthem, it certainly sounds the death-knell of the judiciary, if not democracy.
What is the main charge of the four judges? It is that Justice Mishra makes the roster in a totally arbitrary manner. True, all judges of the Supreme Court are capable enough to hear all the cases that come up before the court. Even so, there is a norm that a judge who is more experienced hears more important cases. It can only be presumed as vendetta if, for instance, Justice Chelameswar, who does not have expertise in labour laws, is given labour cases.
There are purists who say that the four judges should have sought a solution to the problem within the ranks of the judges. But they forget that the judges came out in the public only when they failed in their attempts to persuade Justice Mishra to democratise his roster-making powers.
Let it be restated, extraordinary situations demand extraordinary solutions. One can only hope that Justice Dipak Mishra mends his ways and the rule of law is upheld at all times, no matter who remains in the dock, whether he is the president of the ruling party or the Chief Justice himself.
(Published on 15th January 2018, Volume XXX, Issue 03)