“If the salt has lost his flavour, with which shall it be salted?” retired Delhi chief justice Rajinder Sachar, a doyen of the civil liberties and human rights movement in India, quotes from the words of Jesus, in the Sermon on the Mount, to say the Indian people are wondering “whether they are in danger of losing their entitlement to an independent judiciary as guaranteed by the constitution.”
There is but little doubt that that the justice dispensation system at the highest level, and the judicial protection of the Constitution, is currently in a penumbra cast by the letter of four members of the Supreme Court Collegium to the Chief Justice Dipak Mishra, the first member, which they made public in a unique and very controversial press conference on Friday, 12thJanuary.
The judges have questioned the functioning of their chief, all but accusing him of influencing decisions in politically sensitive cases by allocating the proceedings to select judges. They have also said he has ignored their protests, or suggestions, for corrective action. Signatories to the letter are Justices J Chelameswar, the senior most judge, Ranjan Gogoi, Madan B Lokur and Kurian Joseph. The text of the letter is now in the public domain. There has been no public response from the Chief justice, but every move of his is now being minutely scrutinised, and interpreted.
One of the select benches referred to in the letter is headed by Justice Arun Mishra, no relative of the chief justice, but like him, scion of a very distinguished judicial family. The younger Justice Mishra has been less stoic, and reportedly broke down at what he felt were insinuations by his seniors on his integrity. It was not clear at the time of writing this report if he would now recuse himself from these cases referred to him by the chief.
The letter writers include one who will be the next chief justice of India in the normal course of succession. That Justice Gogoi, the next Chief, chose to be a signatory and possibly risk his promotion, is important. The court never could wipe out the stain of the judicial shakeup during the Emergency of 1975, that political leadership can influence the court to give favourable rulings. Prime Minister Indira Gandhi had then appointed a comparatively junior judge as chief justice so he could put the seal of legality on several government orders that seemed to violate the constitution, including delicate issues of human rights.
Justice Sachar, now in his mid-90s, and author of the celebrated eponymous report on the dismal economic and social state of the Muslims in India, is pungent when he writes that while the judiciary may believe that “judges are immune to human frailties even while making non-judicial decisions (such as appointments and transfers), this self-glorification is not accepted even by members of the judiciary itself vide expostulation of Justice Frankfurter of the US Supreme Court that all power is of an encroaching nature.” “Judicial power is not immune to this human weakness. It must also be on guard against encroaching beyond its proper bounds and not the less so since the only restraint upon it is self-restraint,” Justice Sachar wrote in a damning commentary on the tumultuous events of the New Year.
Combative human rights lawyer Prashant Bhushan, son of former Union Law Minister Shanti Bhushan, has added to the conflagration accusing the chief justice of what can be called corrupt practices.
The chief justice has had two brief meetings with the four-letter writers as we go to press. The Bar Council of India and the Supreme Court Bar Association have also made efforts at mediation. The political parties and the government are watching the situation with interest, perhaps with trepidation, but have so far made no public comment. The government is keen to make it clear that it will not interfere in what is essentially an internal matter of the Supreme Court bench.
The reports coming out of the Supreme Court read like cryptic medical bulletins that disclose nothing, even as they hide much. There is no indication when the crisis will be deemed to be resolved. For the moment, all the judges are at work, barring a day when Justice Chelameswar, the leader of the rebels as some describe him, and two others took an off. For the record, by year end, most of the dramatis personae would have retired.
Justice Chelameswar has locked horns with his chief in the past on several occasions, but the fact that he could get the other members of the five-person Collegium to join him in this letter to the chief justice, and to in fact sit in at the press conference, has opened him to charges of political motives, with the electronic media and a section of the print media going to town saying this was meant to destabilise the government of Mr Narendra Modi and the ruling party almost on the eve of the general elections scheduled for early 2019.
The inference was obvious to students of Indian politics and those following the developments in the state of Gujarat, home to Prime Minister Narendra Modi and his protégé, Mr Amit Shah, the pugnacious president of the ruling Bharatiya Janata party.
The four rebellious judges are expected to hand over a list of their grievances to the CJI in writing. The CJI has reportedly assured them that he will resolve the dispute to their satisfaction. The four have directly or indirectly referred to two cases which are linked to government leaders and to Mr Shah.
The critical case is of High court judge BH Loya’s mysterious death, allegedly because of a heart attack. Judge Loya was hearing the infamous Sohrabuddin false encounter a case in which Mr Amit Shah had once been arrested. Following Mr Loya’s sudden death, the case was transferred to a judge who immediately exonerated Mr Shah. Mr Shah then went on to help lead the BJP to a decisive victory in the 2014 elections, propelling Mr Narendra Modi to the prime ministership.
Any doubt on Mr Loya’s death could reopen the case, putting a shadow not just on Mr Shah, but on the BJP and Mr Modi as they are gearing up for elections in several important states, including Karnataka where the Congress is now in power, and indeed the campaign for the 2019 general elections to the Lok Sabha and perhaps a fresh five year term for the prime minister.
Petitions seeking a fresh investigation into the Loya death were assigned by the chief justice to a bench headed by Justice Arun Mishra, the 10th senior judge among the 25 in the court.
Mr Amit Shah and Mr Modi have received “clean chits” from investigating agencies and legal forums in the past four years, cleansing themselves of various serious charges arising out of the anti-Muslim pogrom of 2002 and cases of fake encounters in which Sohrabuddin, a criminal, his wife and their associate were liquidated by senior policemen of Gujarat in a chilling conspiracy. The current controversy has reopened the public debate on even older cases, such as the assassination of former Gujarat Home minister, Hiren Pandya who, political gossip said, was on the verge of spilling the beans in cases that would point a finger at Mr Modi, the then chief minister of Gujarat.
The Loya case would have been buried in obscurity but for a report published in the New Delhi based Caravan magazine, which has had a string of exclusives to its credit, indicting the powerful and famous. Caravan published a narrative that many other media houses had refused to touch.
The magazine expose was based on a charge made by a sister of Judge Loya who feared he may have been murdered as he was about to indict a powerful politician in the liquidation of Sohrabuddin. The magazine put serious doubts in the circumstances in which Mr Loya was brought a hospital where he died, and the way his body was later transported to his family home.
Mr Loya’s family is now split down the middle with several members insisting on their demand for a through enquiry while the 21-year-old son of the judge says he suspects no foul play and does not want the government to proceed with the enquiry.
However, soon after the magazine article, on 10 January, the Bombay high court admitted a petition seeking a probe into Mr Loya’s death the high court was to hear the matter on January 23. However, the Supreme Court intervened, and heard a similar petition filed before it despite objections from senior lawyers Dushyant Dave and Indira Jaisingh. Chief justice Misra allotted the case to Justice Arun Misra's court.
This is where the dirt bomb hits the fan. Allegations are that the chief justice, as Master of the Rolls, arbitrarily and deliberately assigned the sensitive case to a “junior” bench and not to one of the senior judges who should, by right, be adjudicating such serious matters. Everyone agrees that the chief justice is the master of the rolls and it is his job to assign cases to the various benches. But the Supreme Court is also guided by healthy traditions in which a certain quality of consultations between the senior judges is said to be the norm.
The legal fraternity seems also split, on more patently political lines. The BJP has could drum up a solid supportive phalanx of legal opinion in its favour, but the Opposition too has found ammunition in the position taken by senior lawyers of the stature of Indira Jaisingh, Prashant Bhushan and others.
The last word has not been said on the issue. The other controversies have been pushed into the background while legal and public attention is fixed on how the Supreme Court, and then the Bombay high court, deals with applications for the reopening of the Loya dearth case.
At this political juncture, it does not seem likely that the two courts will reopen the case, to once again allow the finger of suspicion to point at Mr Amit Shah, endangering his political future, and possibly the fate of the ruling party in the general elections. That would be an earthquake that could lead to consequences many fear even to think about. National media is working overtime to see that the case is not reopened.
But stranger things have happened. The ball, as they say, is in the court of the chief justice, even if the cases are in front of other benches.(Published on 22th January 2018, Volume XXX, Issue 04)