The Honorable Dissent: Who said, what?

Guest post by Namratha Murugeshan

Friday, the 12th of January, 2018 witnessed a historic vocalization of dissent in the Indian judiciary albeit outside the courtroom. In an unprecedented press conference, four puisne judges of the Indian Supreme criticized the incumbent Chief Justice Dipak Misra for abuse of his administrative power in the matter of allocation of cases. The judges also released a letter addressed to the CJI accusing him of arbitrary departures from the prescribed norms as the ‘master of the roster’ and finalizing the Memorandum of Procedure.

The press conference became a cause for much speculation and debate amongst various stakeholders and the public in general. While some were quick to air their opinion on the development, others are still absorbing the sheer unexpectedness of the event.

The former Chief Justices of the country TS Thakur and RM Lodha expressed their disappointment by suggesting that the judges should have exercised judicial restraint by refraining from appearing in front of the media. Similar voices were echoed by retired Delhi High Court Judge R S Sodhi and the former Attorney General Soli Sorabjee who believed the move to be highly precarious. In fact, Sorabjee went on to suggest the impeachment of the four judges. Supreme Court advocate Gopal Sankaranarayan while terming the incident as an ‘unfortunate precedent’ also opined that the judiciary should have dealt with the conflict within its own institution. Similarly, Senior Advocate Sanjay Hedge indicated towards the potentiality of this incident to destroy the faith of the public in the judiciary in the longer run.

The other side saw senior advocates like Indira Jaising, Prashant Bhushan and Dushyant Dave welcoming the move in lieu of greater transparency. In fact, Indira Jaising terming the event as a ‘healthy development’ for the judiciary suggested that it gave the institution an opportunity to answer some very pertinent questions regarding its integrity. Senior Advocate Dushyant Dave who in a piece few days before the press conference had pointed towards the opacity and arbitrary manner in which the CJI had been allocating cases noted that the CJI was merely a ‘first among equals’ and necessarily answerable to the concerns raised by his collegium members. A similar sentiment was expressed by Kapil Sibal who pointed towards a recently emerging pattern of allocating highly sensitive matters to only a certain few benches in order to get favourable results. For Senior Advocate Arvind Datar the act of the judges was motivated due to the absence of any other alternatives to redress their grievances. In their open letter, four retired judges also suggested the CJI to ensure that the ‘master of roster’ position was not misused. 

Many academicians went beyond reactionary analysis to state that the event should not be compared to a judicial crisis. As many tried to identify the cause, legal scholars have opined that the rift could be traced back to the development of the collegium system itself.

Meghnad Desai utilized this opportunity to indicate the flaws of the collegium system by stating that the current rift between the judges and the CJI cannot be resolved from within the judiciary. He further stated that this issue must be used to push for the constitutional validity of the National Judicial Appointments Commission (NJAC). Reverberating Desai’s ideas Faizan Mustafa mentioned that while there have been previous cases of tussle between the judiciary and legislature, this instance was the first of its kind wherein a conflict arose from within the judiciary itself. Rohit De and Tarunabh Khaitan jointly pointed out the importance of understanding the value of constitutionalism, an idea that elicits a commitment to accountability, democracy and to reinforcing limitations on state power. They said that while governments have breached conventions earlier, this was the first instance of conventions being broken so frequently.

Gautam Bhatia pointed towards the increasing mismatch between the centralization of power in the CJI’s office and reduced accountability to indicate the circumstances that might have helped brew the present situation. Sidharth Chauhan very importantly questioned the narrative being spun around the incident and stated that it would be incorrect to term the action of the judges a rebellion or a revolt. He further mentioned that it would be premature to assign undue significance to the event as the judiciary could no longer be completely sheltered from public criticism. Pratap Bhanu Mehta presented one of the most poignant narrative of the incident by questioning the availability of evidence for such an accusation against the CJI. He warned against jumping to conclusions regarding the actions of the CJI without scrutinizing evidence to back-up the claims made by the four judges. Professor Upendra Baxi while elaborating on the existing conventions of administration of the Court, pointed out the importance of judicial outcomes having to be devoid of a judge’s personal stake. Taking the narrative further, Arghya Sengupta presented a solution to the current ‘crisis’ by elaborating on the need for a ‘Supreme Court’ Act. Kalpana Kannabiran while drawing a comparison between the action of the judges to the ‘three famous dissents’ in the Indian judicial history lauded them for opening the closed institution of the judiciary into the realm of public criticism.

The matter was quick to take a political overtone with the Congress calling for an investigation into the issue. The BJP quite passionately, in turn, accused the Congress of trying to politicize the internal working of the judiciary.

In light of this event, the Supreme Court Bar Association (SCBA) called for an emergency meeting. Given that the main accusations were regarding the allocation of cases, it was decided by the Executive Committee of the SCBA that matters pertaining to Public Interest Litigation (PILs) must be adjudicated by the CJI or must be assigned to the four judges next in the row. It further noted that the apex members of the collegium must work quickly to restore common man’s faith in the institution. In the meanwhile, the Bar Council of India (BCI) formed a seven-member committee to meet with the judges of the Apex Court to discuss the crisis. BCI Chairman Manan Kumar Mishra stated that there was no cause for speculation since the matter stood resolved with the four judges returning to the bench. With regard to questions of actions being taken against the four judges, Mishra said that the judges cannot be punished for coming forth in the manner that they chose to.

While the SBCA and the BCI have taken steps towards quickly resolving the issue, the long-term impact of this event is the consideration of many. A common voice that speaks for many is the one calling for introspection and seeking swift action to ensure that faith in the judiciary is restored.

The author is a third-year student at NALSAR University of Law, Hyderabad. 

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