Why Indian judiciary shouldn't have let the fight spill out onto the street

The Supreme Court is in the news again. This time with self inflicted wounds to hurt its reputation. The headlines concern a judicial spat between Court I (headed by Chief Justice Misra) and Court II headed by Justice Chelameswar.

Going by history, the Chief Justice is not necessarily the best judge in the court. He is chief because he is the senior most. If Chelameswar had been appointed to the Supreme Court earlier, he would have been Chief Justice. Indeed, one judge was sworn as a judge of the Supreme Court a few minutes earlier to become CJI.

The CJIs

In judicial matters, the CJI is first among equals with one vote. CJIs vary. Some Chief Justices like Gajendragadkar ensured a majority in cases they heard. The legendary Krishna Iyer used concurring judgments to find consensus. We remember Chief Justices who managed difficult or idiosyncratic judges. In my list, they are SR Das, Gajendragadkar, senior Chandrachud, Venkatachaliah.

The story of SR Das’s pre-retirement speech is legendary. He talks of his unique judges: Sarkar, the bachelor who attends parties; Wanchoo, who claims to be from UP and Rajasthan, Hidayatullah, who follows Strouds dictionaries and looks for other gospels. Brother Subba Rao “is extremely unhappy because the fundamental rights are going to dogs”.

KC Das Gupta is a dark horse. It is to Das’s credit that he managed the court so well. The CJI has to keep his team together. Some like Ray or Ahmadi didn’t care. Kripal did what he liked. The point is that as first among equals, the CJI have to manage his court socially and preserve the brotherhood. Setalvad described Mahajan as brusque. Pattanaik, Khehar or Khare made little effort towards cohesiveness. Thakur tried his best.

The CJI has a duty to present cohesion to the people whatever their differences in judgments. The present issue arose from an accusation that money and influence changed hands to get a favourable result in the continuance of a medical college in 2017-18.

This was part of a huge number of cases where the MCI had displayed savagery in blocking medical colleges. Misra decided many such cases and nearly ran into a confrontation with the Bobde bench which was ungainly resolved. But considering the numbers of colleges going for 2017-18 admissions, there were bound to be pressures to corrupt the judiciary.

The conspiracy in this case was over a UP college. Bribes were alleged, involving an ex-Orissa high court judge and eventually leading to the CJI’s court that decided the case. How do we deal with those cases? More so, when the allegation, though without merit, points vaguely in the direction of the CJI. One simple rule is that someone should handle it other than the Chief Justice. This is not because the Chief Justice did something wrong, but because justice demands it.

Controversies

In the Ravi Iyer case (1995) concerning a Bombay controversy, K Ramaswami J insisted that these matters be resolved internally through Chief Justices. This has never worked except for high court judges who are transferred to another court without proof of guilt. But, where there is an FIR about the conspiracy mentioning a judge, what happens? In the famous Kalikho Pul suicide note, CJI Khehar was implicated (however untrue).

An internal investigation should have been ordered. But the easiest way to deal with it was to direct it to a Bench who would obviously dismiss a premature case. In the present case, where there was an FIR, the same technique was used to send for a two-judge bench to sink the case.

But lawyers Bhushan, Jaiswal and Dushyant (I supported them) were flabbergasted that such allegations should meet such a nondescript grave. Since CJI Misra was in a Constitution Bench, his No 2 (Chelameswar) had full powers to decide on what action to take. His view on this was, top priority should be given to the five senior most judges.

Avoiding fights

At that time, Chelameswar had the power to allocate cases. His was a judicial and not an administrative order. Reportedly, the CJI broke the Constitution Bench from 12 to 2pm and countermanded the order.

Chelameswar acknowledged the letter but continued to hear the case. Matters came to a head when the CJI selected his own Constitution Bench to judicially kill the Chelameswar order. Bhushan as threatened with contempt in a hearing that quickly generated into cacophony.

The CJI had transferred to Chelameswar the power to hear mentions and pass orders, including judicial orders. The CJI’s trump card was that he alone can fix (in this case re-fix) Benches. Was this drama necessary? The answer is “No”.

The CJI and Chelameswar should have sorted the matter together. The CJI could have even agreed to Chelameswar’s order and blessed it. But this war of attrition was not necessary. A judicial order of Chelameswar could not have been countered by an administrative and later judicial order of the CJI.

CJIs should remember to keep their team together. No open fights. Second, where there is a complaint (however unconvincing) about the CJI, the No 2 should take charge, not send it to a Bench of the CJI’s choice. Bhushan was right to ask for the CJI’s recusal.

Third, there are several other orders by CJI Misra nullifying (eg of the Lalit-Goel Bench) as if he sits in appeal over others. The Supreme Court is too important to wash its linen in public (or indeed privately in public view).

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