What Next? Five Former Judges on Road Ahead for Supreme Court After a Tumultuous Week

New Delhi: An unprecedented press briefing by four senior-most Supreme Court judges questioning the office of the Chief Justice of India shook the nation on Friday, setting the stage for structural reforms in the higher judiciary. Attorney General KK Venugopal has dismissed speculations of any rift among the brother judges and has said that the court would function as usual. But are there any other scenarios that may pan out in the Supreme Court. News18 speaks to members of the judiciary to understand what lies ahead.

OPTION 1: CHART DOWN THE REMEDIAL MEASURES AND SUBMIT TO CJI FOR CONSIDERATION

Former SC judge Justice Gyan Sudha Misra, who had delivered landmark judgment in the Aruna Shanbaug euthanasia case, and is known for her dissenting verdict in the Uphaar fire case holding the management liable for loss of human lives, told News18 that “letter which has been written has no remedial measures or measures which can be taken to improve the scenario.”

“There were no suggestions in the letter. The problems too have only been indicated and not highlighted. Perception cannot take place of proof. Allegations cannot be made. The four judges should now prepare a gist of remedial measures and submit it to the CJI for discretion to be exercised in an in-camera proceeding. The judges need to come out with a procedure to remedy the problems cited,” said Justice (Retd) Misra.

She said it is the prerogative of the CJI to assign particular matters to a bench, but as questions have been raised on functioning and allotment, the judges must have a deliberation among themselves.

“Whether a collective decision will be taken by the CJI after taking into consideration submissions of all other judges is something which again depends on the CJI and it’s for him to decide. Legally and technically it’s the prerogative of the CJI and that is reflected in the judges’ letter too,” said the former SC judge.

Justice Misra also said that some line has to be drawn before allegations are made against the CJI. “I appreciate the concern of the four judges that they heard their voice of conscience but some line has to be drawn on what basis such allegations have been made. What has been hinted in the letter is that ‘you are selectively assigning the matter to junior judges’. But discretion is bound to be exercised and it has happened a lot of times that junior judges have been made to sit in constitution benches,” she said.

OPTION 2: ISSUE CONTEMPT NOTICE AGAINST THE FOUR JUDGES

Justice Prabhat Chandra Agarwal, former Judge of the Madhya Pradesh High Court and a senior advocate in the SC, told News18 that all citizens are equal in the eyes of law and hence the CJI can treat the press conference as a contempt of court.

“Contempt notice can easily be issued by the CJI as the judges at the end of the day are citizens of India and are thus equal in the eyes of law. They are given privileges only in the general public interest. In India, the general public is sovereign. Hence they can be issued a notice of contempt. The way the four judges handled this issue was not the right way. They should have consulted the Chief Justice before meeting the press. The judges should have raised this issue in the meetings of the judges,” said Justice (Retd) Agarwal.

He also questioned as to how these judges were raising questions on bench formation as this was “conflicting.”

“They have no right to say that a particular case should be assigned to them. On one hand, they are saying that CJI is not superior to them, but they are also saying that junior judges to whom the cases have been assigned are not equal to them. How can this happen? A judge can never ask for a case to be listed before him/her… The matter cannot be decided by the press now,” said Justice (Retd) Agarwal.

OPTION 3: TREAT THE LETTER AS A PETITION AND DELIVER A VERDICT TO RID THE CJI OF EXCESSIVE POWER

Justice RC Chopra, former judge of the Delhi High Court, believes that the CJI has excessive administrative powers which can be misused by the political establishment. He believes that this change can come if a judge takes suo motu cognizance of the letter as a petition.

“The time has now come that even CJI and the chief justice of the high courts exercise their administrative power in consultation with the four senior most judges. So that like the collegium system, whatever the CJI wants to do, like setting up the roster or assignment of matters, all should be a result of collective wisdom and should not be left into the hands of a single person. The political establishment has a habit of manipulating everybody. Hence, putting all the powers in the hands of the CJI is not correct,” said Justice (Retd) Chopra.

Suggesting what could happen next, Justice Chopra told News18, “If by the way of a judgment in the Advocates on Record case, they could change the system of appointment of judges. In the same way, the letter written by the four judges can be treated as petition and after taking suo moto cognizance of the case, a verdict can be delivered. Any judge can treat the letter like a petition. That way, it also becomes a law of the land and the matter gets resolved on the judicial side.”

OPTION 4: JUDGES NEED TO SIT TOGETHER AND FIND A SOLUTION

Former SC judge Justice Tarun Chatterjee said that in his six years at the apex court he had never witnessed such an event. “I have never heard that a judge had come out in the press and I never expected this. The basic problem is that appointments are made because of their own interests and that is the reason such things happen. There is no remedy by coming out to the press and speaking about this. There are so many debts to the nation, who can solve them?” he said.

“It is the prerogative of the CJI to allot cases to the judges. If there is any problem, they can sit together and solve it. It can be done through a full court. But I do not think there is any case of impeachment of the CJI here. There is no ground for impeachment here,” said Justice (Retd) Chatterjee.

OPTION 5: HOLD A FULL COURT MEETING

Justice Samaresh Banerjea, former Judge of the Calcutta High Court, told News18 that the damage caused to the institution of judiciary could only be repaired by the judiciary itself.

“Now these judges have to take leadership and the judiciary has to venture into this. A full court meeting has to be called which involves all the judges of the SC. All the judges will have to give their opinion on this issue and the judges need to find a way in the full court meeting. We are no one to judge the CJI or condemn him,” said Justice (Retd) Banerjea.

He also expressed fear that the press conference may lead to the public losing confidence in the judiciary. “The press conference has caused a damage to the institution of judiciary. The four judges have given an explanation that the CJI did not listen to them but that point has not been elaborated. There is nothing to achieve by holding a press conference. Now the problems have been exposed to the public and now public might lose confidence in judiciary which is the most important part,” said Justice (Retd) Banerjea.

He questioned the fact that a copy of the letter was sent to the law minister. “This opens avenue for doubts and questions that there is executive interference in the judiciary,” he added.