Four senior-most judges of the Supreme Court, who today created a storm by coming out in the open listing a litany of problems in the functioning of the top court, had written a letter to Chief Justice of India Dipak Misra a couple of months ago.
In their scathing criticism of the Supreme Court's functioning, they raised issues which included that cases having "far-reaching consequences for the nation", were being "selectively" assigned to the benches of "their preference".
The seven-page letter, which was made public by Justices J Chelameswar, Ranjan Gogoi, M B Lokur and Kurian Joseph at their joint press conference, said that certain judicial orders passed by the apex court "has adversely affected the overall functioning of the justice delivering system and the independence of the high courts, besides impacting the administrative functioning of the office of the Hon'ble Chief Justice of India."
The judges said that unless this institution is preserved, "democracy will not survive in this country and added that they wrote the letter to the CJI with "great anguish and concern".
Justice Chelameswar said the four judges had met the CJI this morning and "raised issues affecting the institution" but had "failed to persuade CJI that certain things are not in order and therefore you should take remedial measures. Unfortunately our efforts failed."
The letter, written about two months ago, said there have been "instances where cases 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 rationale basis for such assignment. This must be guarded against at all costs."
"It is too well settled in the jurisprudence of this country that the chief justice is only first amongst the equals -- nothing more or nothing less."
It also spoke about the controversy relating to the issue of delay in finalising the Memorandum of Procedure (MoP) for appointments of judges in the higher judiciary.
It said when the MoP was the subject matter of a decision of a Constitution Bench, it was "difficult to understand" how any other bench could have dealt with the matter.
"The above apart, subsequent to the decision of the Constitution Bench, detailed discussions were held by the collegium of five judges (including myself) and the MoP was finalised and sent by the then Chief Justice of India to the Government of India in March 2017.
"The Government of India has not responded to the communication and in view of this silence, it must be taken that the MoP as finalised by the Collegium has been accepted by the Government of India on the basis of the order of this court....
"There was, therefore, no occasion for the bench to make any observation with regard to the finalisation of the MoP or that, that issue cannot linger on for an indefinite period," the letter signed by the four judges said.
"In that decision (referred in C S Karnan), two of us observed that there is a need to revisit the process of appointment of judges and to set up a mechanism for corrective measures other than impeachment. No observation was made by any of the seven judges with regard to the MoP," it said.
It said that any issue with regard to MoP should be discussed in the Chief Justices' conference and by the full court and such a "matter of grave importance", if at all required to be taken on the judicial side, should be dealt with by none other than a constitution bench.
Maintaining that this development must be viewed with "serious concern", it said the CJI is "duty bound to rectify the situation" and take appropriate remedial measures after a full discussion with other members of the collegium and at a later stage, if required, with other judges of the apex court.
It said once the issue arising from the October 27, 2017 order, when a two-judge bench of the apex court had agreed to examine the issue of delay in finalisation of MoP on judicial side, was adequately addressed by the CJI and if it becomes so necessary "we will apprise you specifically of the other judicial orders passed by this court which would require to be similarly dealt with".
The letter said a well settled principle was that the CJI was the master of the roster but this was "not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues."
It also said that it was a necessary corollary that members of the judiciary would not "arrogate" to themselves the authority to deal with and pronounce upon matters which ought to be heard by appropriate benches.
"Any departure from the above two rules would not only lead to unpleasant and undesirable consequences of creating doubt in the body politic about the integrity of the institution. Not to talk about the chaos that would result from such departure.
"We are sorry to say that of late the twin rules mentioned above have not been strictly adhered to," the letter said.
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