Democracy in danger, warn four Indian SC judges

NEW DELHI: Four justices of India’s top court on Friday criticised its distribution of cases to judges and raised concerns about judicial appointments, in an unprecedented public airing of problems at one of the country’s most respected institutions.

The move spells far-reaching implications for jurists and politicians in the chaotic South Asian democracy where the Supreme Court often sets the Justice Dipak Misra, some of the Supreme Court’s most senior judges told a news conference the issues involving its administration were serious enough to prompt them to go public. "The four of us are convinced that unless this institution is preserved and it maintains its equanimity, democracy will not survive in this country," Justice Jasti Chelameswar said on the lawns of his residence in the Indian capital.

The justices gave a few details of the incidents they were referring to, but released a letter they had written to Misra. In the letter, they mentioned instances of cases with "far-reaching consequences for the nation and the institution" that were selectively assigned to judges by the chief justice without any rational "basis for such assignment".

All Supreme Court judges should be involved in setting the procedures used to hire and promote judges in various courts in the country, including the high courts, they added. The chief justice did not immediately respond to telephone calls from Reuters to seek comment. Law Minister Ravi Shankar Prasad declined to comment.

Two close aides of Prime Minister Narendra Modi said he was looking into the matter and had summoned top law ministry officials for consultations. Pressed by reporters, one of the four judges, Ranjan Gogoi, acknowledged that the concerns about assignments were related to the case of a lower court judge, B Loya, who died in December 2014 while hearing a high-profile trial. The trial involved Amit Shah, the president of the ruling Bharatiya Janata Party, and several police officials from Modi’s western home state of Gujarat. The BJP declined to comment.

Indian media have also speculated that the judges were unhappy with the way a case of alleged corruption by a retired high court judge was handled late last year. In that case, Chief Justice Misra overturned an order made by Justice Chelameswar referring the case to the court's top judges. He justified the decision by saying he was "master of the roster".

Critics said this raised concerns of interference in the judiciary and launched a petition calling for an independent investigation into the corruption charges. Some Supreme Court lawyers praised the justices’ action. "Looking at its own flaws is the first step to correcting an institution, to deepening true constitutional democracy," said Karuna Nundy, a Supreme Court lawyer. But there was also criticism over the public nature of the rift. The public spat was distressing, a former attorney-general of India, Soli Sorabjee, told the India Today news channel. "The public shouldn’t see that the judiciary is a divided house," he said.

The judges also expressed unhappiness with "certain judicial orders" passed by the court, which they said "adversely affected the overall functioning of the court". They were going public with their concerns, they said, because the chief justice had refused to listen to them. Asked by journalists if the chief justice should be impeached, Chelameswar said: “Let the nation decide that.”

The judges were at pains not to accuse Misra of any specific wrongdoing nor criticise any specific judgments. Rather, their charge is that by breaking from the traditional procedures for allocating cases – which heavily emphasise seniority – he is allowing what they called “questions on the integrity of the institution” to fester.

Echoing criticism levelled at the court in past months, the Indian Express published an article on Friday morning by a senior lawyer, Dushyant Dave, highlighting instances where Misra had failed to allocate the most senior judges available for sensitive cases.

“It is important for this institution to ensure that an impression is not given to the public that the constitution of benches and allocation of matters is being done in a manner more palatable to the executive,” Dave wrote.

Chelameswar closed the dramatic press conference by saying: “We don’t want wise men saying 20 years from now that justice Chelameswar, (Ranjan) Gogoi, (Madan B) Lokur and Kurian Joseph sold their souls and didn’t do the right thing by our constitution.” Alok Kumar, a senior resident fellow at the Vidhi Centre for Legal Policy, said chief justices had earned the rancour of their colleagues in the past but Friday’s events were “beyond the pale”.

Misra, who was appointed chief justice by the Narendra Modi government in August, did not make any public remarks on Friday but is reportedly meeting with the Indian attorney general, who is also yet to comment.

The Indian supreme court is larger than its UK or US counterparts, accommodating up to 31 members whose ranks frequently change as judges choose to leave or reach the mandatory retirement age of 65.