SC Judges’ Protest Against CJI Dipak Misra is a Judicial Emergency

The call of the four judges is for accountability and transparency from the highest judicial office in the land.

“Nearly all men can stand adversity, but if you want to test a man’s character, give him power.” - Abraham Lincoln

These words are rankling over us today as we come to terms with the latest crisis in the judiciary.

The four most senior of the Supreme Court judges, who belong to the judicially created ‘collegium’, have declared a judicial emergency in the country. They have challenged the integrity and authority of their leader – the Chief Justice of India (CJI) Dipak Misra – who stands diminished by the very unanimity of his senior colleagues.

For a Chief Justice, there can be no more serious allegation of abuse of power than that he is picking, choosing, and allotting matters to ‘specially chosen’ benches.

The letter and the press conference by the four senior SC judges on Friday, 12 January, stemmed from exasperation and frustration, indicating the manner in which the apex court has been made to function by a single individual to the detriment of the institution. For some time now, the tension between the CJI and the next most senior SC judge, Justice Chelameswar, has been apparent.

Matters finally came to a head with the assertion by the Chief Justice of his position as ‘master of the roster’ in the open court drama of November 2017. It was one that played out embarrassingly – even tragically – in light of the institutional stage in which it was played, and the sycophancy of the senior bar, despite the protests of the petitioners who were not allowed to make their case when the matter was called.

Moreover, the position of the “mutineers’” on 12 January is greatly strengthened by Justice Ranjan Gogoi’s presence, since he is the only one among them who has something to lose – for he is next in line to succeed the incumbent CJI, and by protocol, requires a recommendation for his appointment to proceed from under the hand and seal of his predecessor.

A Throwback to Indira Gandhi’s Era

However, the crisis created by this extraordinary vote of no-confidence is not unprecedented in our country. In fact, Indira Gandhi chose to supplant the convention of seniority in appointments to the highest judicial office on two separate occasions, in 1973 and in 1977.

On each occasion, the reputation of the judges who were at the receiving-end was enhanced, while the beneficiaries who chanced upon the highest judicial office have not been able to redeem themselves before or since their acceptance of the office. But on both those occasions, the opponent was on the other side of the net.

In the present case, the stones are being thrown from inside the ‘glass house’ by individuals who are deeply conscious and visibly pained that they, as much as the high institution they serve, are all likely to be damaged by the shattering glass.

Admittedly, the allegations against the Chief Justice are unproven and have not yet been investigated, but the manner of exercise of the extraordinary administrative and judicial powers of his office have, to borrow a judicial phrase, greatly increased the preponderance of probabilities. And, for ‘ Caesar’s wife’, that should be more than sufficient.

A Precedent from Madras HC

Let me illustrate by using a judicial example from the Madras High Court. The highly regarded Chief Justice of Madras, S Ramachandra Iyer, was accused of having falsified his age. The evidence was that the judge’s younger brother had sent out invitations for his sixtieth birthday (the retirement age for a High Court judge was 60 at the time), even though the Chief Justice was holding office on the assumption that he had not yet attained the retirement age.

When the original birth certificate was procured, a petition was filed by the tenacious advocate G Vasantha Pai and a show cause notice was issued by a single judge bench of the Madras High Court to its Chief Justice.

It fell to the then CJI PB Gajendragadkar to persuade Justice Iyer to resign so as not to cause damage to the institution, which he did. In the case of CJI Dipak Misra, since he has disregarded the advice of his colleagues, it is in his own conscience that we are forced to place our trust.

The ‘Infamous’ Transgression of 1975

The other historical parallel, and (probably the more relevant one) is the premiership of Indira Gandhi, when she, as the head of the executive, in that infamous letter on the night of 25 June 1975 to President Fakhruddin Ali Ahmed, committed the first illegality of the Emergency by “permitting a departure from the Government of India (Transaction of Business) Rules 1961, as amended up to-date by virtue of my powers under Rule 12 thereof”, and dispensed with discussing her recommendation with her own Cabinet.

This innocuous exercise of unilateral power plunged the country into 21 months of darkness, after which the Constitution was amended to necessitate a written communication from the Cabinet (not the Prime Minister) to the President before the issuance of a proclamation of Emergency.

This ‘phoney’ Emergency was described and put into perspective by the scholar Granville Austin in his work on the “Working of a Democratic Constitution”.

Thus, India’s flirtation with dictatorship mercifully was brief. In retrospect, the ugly experience may have been the saving of democracy in ways not thought of by the Prime Minister when she told the Parliament that the Emergency was not to destroy the Constitution but ‘to preserve and safeguard our democracy’. It taught Indians about the dangers to democracy that lurk anywhere: of demagoguery, of leaders uncaring of liberty, of hero-worship and placing power in the hands of a few, of the dangers of citizen abdication of responsibility. 

Granville Austin

“Like the ‘McCarthy period’ in the United States, it taught that vigilance would be the price of its not happening again,” wrote Austin.

The call of the four judges on Friday, 12 January 2017, is for accountability and transparency from the highest judicial office in the land. The events have not yet unfolded in totality for us to make an estimation of the impact on our nation and our Constitution.

But it is hoped that maybe, ages hence, CJI Dipak Misra, far from the precincts of any court, can tell an audience (as Indira Gandhi told the Parliament), that this crisis of his own making was to “preserve and safeguard our democracy.” And perhaps then, another scholar will have the opportunity to conclude that a democracy was saved on this day.

(The writer is an advocate and associate fellow at Vidhi Centre for Legal Policy. The author tweets @suchindranbn. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same)

(We Indians have much to talk about these days. But what would you tell India if you had the chance? Pick up the phone and write or record your Letter To India. Don’t be silent, tell her how you feel. Mail us your letter at [e-mail]. We’ll make sure India gets your message)