“Unless This Institution Is Preserved … Democracy Will Not Survive”: On the Day of the Loya Hearing, Four Senior Judges of the Supreme Court Speak Out

This morning, before they sat down in their respective courtrooms, four of the senior-most judges of the Supreme Court of India met the chief justice, Dipak Misra. “For some time, the administration of the Supreme Court is not in order. There are many things which are less than desirable which have happened in the last few months,” Jasti Chelameswar, the senior-most among the four, later said during a press conference. He sat beside the other three judges—Ranjan Gogoi, Kurian Joseph and Madan Lokur. “We thought we owed a responsibility to the nation. We tried to collectively persuade the chief justice that certain things are not in order and therefore you should take remedial measures,” Chelameswar continued. “Unfortunately, our efforts failed.”

“All four of us are convinced,” he added, “that unless this institution is preserved and it maintains its equanimity, democracy will not survive in this country.”

Speaking for the four judges, Chelameshwar made clear that while their differences with the chief justice go back a few months, they had gone to meet him this morning “with a specific request.” When asked if the request pertained to petitions seeking an independent investigation into the mysterious circumstances surrounding the death of the judge BH Loya in 2014—which were listed to be heard before lunch today—Gogoi, who is expected to be appointed the CJI later this year, answered: “Yes.”

At the time of his death, Loya was presiding over the Sohrabuddin encounter case, in which the BJP president Amit Shah was a prime accused. In November 2017, The Caravan reported the shocking claims raised by the family of Judge Loya.

The two petitions, filed by Tehseen Poonawalla, a political commentator, and Banduraj Sambhaji Lone, a journalist based in Maharashtra, respectively, soughtan investigation into Loya’s death. They were listed to be heard in court number 10, before a bench comprising the judges Arun Mishra and Mohan Shantanagouder. In seniority, the two judges are ranked 10 and 22 respectively among the 25 judges of the Supreme Court. The bench clubbed the petitions and heard them at 11.30 am. The bench asked the counsel for the state of Maharashtra to procure Loya’s post-mortem report, and listed the matter for hearing on 15 January. (Recently, two separate petitions seeking an inquiry into Loya's death were filed before the Bombay High Court as well.)

Responding specifically to queries about the meeting with the CJI in the morning, Gogoi said during the press conference that “it was the issue of an assignment of a case.” “Since all our efforts to convince the CJI that an appropriate decision has to be taken failed, we had no other option but to communicate it to the nation,” Chelameshwar said. He added that the four judges “don’t want another 20 years later some very wise men in the country” to say that “Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph sold their souls; they didn’t take care of this institution; they didn’t think of the interest of the nation.” “So we place it before the people of this country,” Chelameswar said.

The judges also released a seven-page letter that Chelameswar said they had written to the CJI “a couple of months back.”  The letter discusses in detail the the chief justice’s role and position in the framework of the Supreme Court. The judges stated in the letter that they were “sorry to say that” the court’s rules regarding the assignment of cases “have not been strictly adhered to” and asked the CJI to finalise the memorandum of procedure at the earliest.

Chelameswar’s estimation suggests that the letter was written around the time of the controversy surrounding the CJI’s decision in a case pertaining to the Medical Council of India. In November, the Campaign for Judicial Accountability and Reforms filed a petition in the Supreme Court asking for the constitution of a Special Investigative Team, headed by a former CJI, to investigate a first information report registered by the Central Bureau of Investigation, regarding a corruption scandal emerging out of a medical college in Lucknow.

The petition stated that on the advice of the Medical Council of India, the health ministry had declined the permissions for the medical college to begin functioning on two different occasions. Both times, two different benches of the Supreme Court had instructed the MCI to reconsider the college’s application. The FIR stated that the managers of the Prasad Education Trust, which was setting up the medical college, were in conversations with several individuals and a retired high court judge, who were allegedly acting as middlemen on behalf of members of the higher judiciary adjudicating the case. Both benches of the Supreme Court included the chief justice Dipak Misra.

On 8 November, Chelameswar admitted the petition and listed it be to be heard within two days. Later that day, Prashant Bhushan, the counsel for the petitioners, received a call from the Supreme Court registry, informing him that the CJI had moved the matter and placed it before a different bench, of which Chelameswar was not a part—it comprised AK Sikri and Ashok Bhushan.

The two-judge bench transferred the matter to a constitution bench, led by CJI Misra. Following a disorderly and acrimonious hearing, the five-judge bench—which also included the justice Arun Mishra—dismissed the petition. The judgement, pronounced by the CJI, ruled that the chief justice is the master of the court’s roster.

The four judges addressed the subject of the roster in their letter. “The convention of recognizing the privilege of the Chief Justice to form the roster and assign cases to difference benches of the Court is a convention devised for a disciplined and efficient transaction of business of the Court but not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues,” they wrote. “It is too well settled in the jurisprudence of this country that the Chief Justice is only the first amongst the equals – nothing more or nothing less.”

“We are sorry to say that … [t]here have been instances where case having far-reaching consequences for the Nation and the institution have been assigned by the Chief Justices of this Court selectively to the benches ‘of their preference’ without any rational basis for such assignment,” the judges stated.

At the press conference, a journalist asked Chelameswar what the next step would be, and whether the judges wished for the chief justice to be impeached. He responded: “Let the nation decide.”