Four SC judges air differences with CJI Misra

Krishnadas Rajagopal
NEW DELHI, January 13, 2018 00:25 IST
[Supreme Court Judges (L-R) Kurien Joseph, Chelameswar, Ranjan Gogoi and Madan B Lokur addressing the Media in New Delhi on Friday.]

Supreme Court Judges (L-R) Kurien Joseph, Chelameswar, Ranjan Gogoi and Madan B Lokur addressing the Media in New Delhi on Friday.   | Photo Credit: R.V. Moorthy
CBI judge Loya was hearing the Sohrabuddin encounter case

In an unprecedented act, four senior judges of the Supreme Court on Friday held a press conference and publicly accused Chief Justice of India Dipak Misra of selectively assigning cases to judges of his choice without any rational basis.

Transcending judicial protocol that sitting judges should not interact with the media, Justices Jasti Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph — the senior-most judges after the CJI — accused Justice Misra of assigning cases of “far-reaching consequences to the nation” to junior hand-picked judges against the time-tested convention, practice and tradition of the court.

In a letter addressed to the CJI and circulated at the press meet, the four said certain Supreme Court judges arrogated to themselves the “authority to deal with and pronounce upon” cases which ought to be heard by other appropriate Benches. The letter is of October 2017 origin.

Efforts at remedy failed

Justice Chelameswar, speaking for the four, said they had collectively tried to persuade the Chief Justice to take remedial measures but their efforts failed.

The judges said that with the independence of the judiciary and the future of democracy at stake, they had “no other choice but communicate to the nation to please take care of this institution.”

Justice Chelameswar said they decided to act now because they did not want “any wise men to say 20 years later that Justices Chelameswar, Ranjan Gogoi, Lokur and Kurian sold their souls and did not take care of the interests of this illustrious institution.”

He said, “The administration of the Supreme Court is not in order. Many things undesirable have happened in the last few months. As senior-most judges of the court and of this country, we hold a responsibility to the institution and to the nation.”

Justice Chelameswar recounted that the trigger for the press conference was a meeting they held with the Chief Justice on Friday morning regarding the assignment of a petition, seeking an independent probe into the mysterious death of CBI judge B.H. Loya, to a particular Bench. (Loya was the CBI judge hearing the Sohrabuddin Sheik encounter case).

The four had expressed their reservations to the CJI about the assignation of the Loya case. But the CJI had refused to budge. They had then informed him of their intention to go public.

Though Justice Chelameswar did not name the Loya petition, Justice Gogoi, who is scheduled to take over as Chief Justice of India after Chief Justice Misra retires on October 2 this year, spoke up to say the petition is indeed regarding judge Loya’s death. “Yes, yes. It was the Loya case,” Justice Gogoi said. “It is the discharge of our debt to the nation that brought us here. We have discharged our debt to the nation by saying what is what,” he said. The revelation at the press conference came a couple of hours after a Bench led by Justice Arun Mishra heard the Loya petition.

Read the full text of the letter submitted by four Supreme Court Judges to the CJI

 Read the full text of the letter submitted by four Supreme Court Judges to the CJI
January 12, 2018 14:17 IST

[Left to right, Justice Kurien Joseph, Justice Chelameswar, Justice Ranjan Gogoi and Justice Madan B Lokur, all Supreme Court Judges, addressing the media in New Delhi on Friday.]

Left to right, Justice Kurien Joseph, Justice Chelameswar, Justice Ranjan Gogoi and Justice Madan B Lokur, all Supreme Court Judges, addressing the media in New Delhi on Friday.   | Photo Credit: R.V Moorthy

Dear Chief Justice,

It is with great anguish and concern that we have thought it proper to address this letter to you so as to highlight certain judicial orders passed by this Court which has adversely affected the overall functioning of the justice delivery system and the independence of the High Courts besides impacting the administrative functioning of the offices of the Hon. Chief Justice of India.

From the date of establishment of the three Chartered High Courts of Calcutta, Bombay and Madras, certain traditions and conventions in the judicial administration have been well established. The traditions were embraced by this Court which came into existence almost essentially after the abovementioned Chartered High Courts. These traditions have their roots in the Anglo-Saxon jurisprudence and practice.

One of the well-settled principles is that the Chief Justice is the master of the roster with the privilege to determine the roster, necessity in multi-numbered courts for an orderly transaction of business and appropriate arrangements with respect to matters with which members/Bench of this Court (as the case may be) is required to deal with which case or class of cases is to be made. The convention of recognising the privilege of the Chief Justice to form the roster and assign cases to different members/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. It is too well-settled in jurisprudence that the Chief Justice is only the first among equals — nothing more or nothing less.

In the matter of the determination of the roster, there are well-settled and time-honoured conventions guiding the Chief Justice, be the conventions dealing with the strength of the Bench which is required to deal with the particular case or the composition thereof.

A necessary corollary to the above mentioned principle is the members of any multi-numbered judicial body including this Court would not arrogate to themselves the authority to deal with and pronounce upon matters which ought to be heard by appropriate Benches, both composition-wise and strength-wise with due regard to the roster fixed.

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. There have been instances where cases having far-reaching consequences for the nation and the institution had been assigned by the Chief Justice of this Court selectively to the Benches "of their preferences" without any rational basis for such assignment. This must be guarded against at all costs.

We are not mentioning details early to avoid embarrassing the institution but note that such departures have already damaged the image of this institution to some extent.

In the above context, we deem it proper to address you presently with regard to the order dated 27.10.2017 in R.P. Luthra vs. Union of India, the effect that there should be no further delay in finalising the Memorandum of Procedure in the larger public interest. When the Memorandum of Procedure was a subject matter of a decision of a Constitution Bench of this Court in Supreme Court Advocates-on-Record Association And Anr. vs. Union of India [(2016) 5 SCC1] it is difficult to understand as to 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 yourself) and the Memorandum of Procedure was finalised and sent by the then Honourable Chief Justice of India to the government 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 Memorandum of Procedure as finalised by the Collegium has been accepted by the Government on the basis of the order of this Court in Supreme Court Advocates-on-Record Association (Supra). There was, therefore, no occasion for the Bench to make any observation with regard to the finalisation of the Memorandum of Procedure or that that issue cannot linger on for an indefinite period.

On July 4, 2017, a Bench of seven judges of this Court decided In Re, Hon'ble Shri Justice C.S. Karnan [(2017) 1 SCC 1]. In that decision (referred to in R.P. Luthra), 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 learned judges with regard to the Memorandum of Procedure.

Any issue with regard to the Memorandum of Procedure should be discussed in the Chief Justices conference and by the full Court. 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.

The above development must be viewed with serious concern. The Honourable Chief Justice of India is duty bound to rectify the situation and take appropriate remedial measures after a full discussion with the other members of the Collegium and at a later stage, if required, with either Hon'ble Judges of this Court.

Once the issue arising from the order dated 27.10.2017 in R.P. Luthra vs. Union of India, mentioned above, is adequately addressed by you 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.

With kind regards,

[SIGNED]

Justice J. Chelameswar

Justice Ranjan Gogoi

Justice Madan B. Lokur

Justice  Kurian Joseph

A letter reveals anguish at judicial orders

NEW DELHI, January 12, 2018 23:35 IST
Updated: January 13, 2018 12:08 IST



[Making a case: Justice J. Chelameswar during a press conference in New Delhi on Saturday.]

Making a case: Justice J. Chelameswar during a press conference in New Delhi on Saturday.   | Photo Credit: R.V. Moorthy
Judges say they do not want to quote the names of cases assigned to select Benches

A letter written by the four senior-most Supreme Court judges to Chief Justice of India Dipak Misra reveals their anguish at the recent judicial orders and an erosion in the judicial independence of the court.

Read the full text of the letter submitted by four Supreme Court Judges to the CJI

Justices J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph said the letter, written in October 2017, did not mend matters. Their efforts to convince the Chief Justice to take corrective measures had failed, forcing them to go public.

The letter said the Chief Justice’s authority, as the master of the roster to decide which Bench should decide which case, did not make him a “superior authority”. “The Chief Justice is only the first among equals — nothing more or nothing less,” the letter said. Yet, they 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 rational basis for such assignment.”

Insitutional damage

The letter said it did not want to embarrass the institution by quoting the names of the cases which were assigned to select Benches, where they were met with quiet burials.
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Brief introductions to the four justices who raised concerns over Supreme Court functioning


The judges said such instances and departure from the tradition of impartiality of the court had damaged the institution.

The press conference follows a recent judgment of a Constitution Bench, led by Chief Justice Misra, which declared the authority of the Chief Justice of India as the master of the roster.

The Bench held that it was the “exclusive domain” of the CJI, and none other, to allocate cases to judges in the court. The Constitution Bench was formed after a Bench, led by Justice Chelameswar, decided to hear a petition for a fair investigation into a case of conspiracy to bribe Supreme Court judges in a private medical college case.

The case was decided by a Bench led by the Chief Justice.

The Constitution Bench effectively overruled Justice Chelameswar’s order to have the case before him. Ultimately, the petition was dismissed by a three-judge Bench of Justices R.K. Agrawal, Arun Mishra and A.M. Khanwilkar and ₹25 lakh in costs was imposed on the NGO.

MoP issue

The letter also highlighted an order passed by a Bench of Justices A.K. Goel and U.U. Lalit that there be no delay in finalising the memorandum of procedure (MoP) for appointment of judges to the Supreme Court and the High Courts.
Also Read

All eyes on Ranjan Gogoi, next in line


The letter said there was no occasion for Justices Goel and Lalit to pass such an order when the Collegium had already finalised the MoP and sent it to the government on March 2017.

It said the government had met the draft MoP with silence, which meant that the Centre accepted the terms of the Collegium. Besides, any issue with the MoP had to be decided at the Chief Justices’ Conference and by the Full Court, and not by a Bench of two judges.

Judiciary in turmoil

Editorial

January 13, 2018 00:04 IST

Updated: January 13, 2018 00:17 IST

It is a great misfortune that an internal rift has moved inexorably towards a full-blown crisis

It is a development that is both momentous and unfortunate. The press conference held by four senior judges of the Supreme Court has exposed an unprecedented level of dissension in the top echelons of the judiciary. It is regrettable that the banner of revolt has been raised in such a public way against the Chief Justice of India, Dipak Misra. Regardless of who is right in the current dispute over the administrative functioning of the CJI, the reverberations of what took place on Friday will not easily subside and will be felt for a long time to come. There was ample evidence over the last few months that the highest court was in a state of ferment; the question is whether it could have been handled internally rather than be dragged into the open like this. Although Justices J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph — the seniormost judges after the CJI — did not reveal too many details, it is clear that their grievances are rooted in their perception that Justice Misra is misusing his administrative powers to assign cases “selectively”, disregarding conventions on allocation of judicial work. They have added for good measure that cases with far-reaching consequences for the nation and the institution are being assigned to junior judges and Benches “of their preferences”, a suggestion that is being read by some as an ominous reference to an unknown external hand. It ought to be underscored here that the Chief Justice is indeed the master of the roster; even the four judges concede that this is a well-settled law, one that is reflected in a Constitution Bench judgment in 1998. While accepting the rule that the Chief Justice alone can decide the composition of Benches and allot judicial work, they allege that Justice Misra is departing so far from set conventions that it would have “unpleasant and undesirable consequences”, ultimately casting a doubt on the integrity of the institution itself. Logically, this is an internal matter of the judiciary, one that is best settled through deliberations in a full court meeting of all the Supreme Court judges themselves.

The letter written by the four judges to the Chief Justice, which became available to the media, and the manner in which the press conference played out, suggest that the grievances go much deeper than what was written or said. The germ that led to the outbreak of the current conflict could be the controversial Prasad Education Trust case, in which the petitioners alleged that some individuals were plotting to influence the Supreme Court. In an unusual order, a Division Bench headed by Justice Chelameswar went ahead to delineate the composition of the Bench to hear the case, in which charges of judicial corruption were made, coupled with hints that there would be a conflict of interest if Justice Misra were to hear it. Eventually, a five-judge Bench headed by Justice Misra overturned the order and asserted that the CJI was indeed the master of the roster and that he alone could assign cases and decide on the composition of benches. While there is no questioning who has the power to determine the roster, what the four judges are essentially questioning is how this power has been exercised. Judicial work is primarily allocated based on a roster, and individual cases are allotted to Benches based on the category under which they fall. Once the roster is fixed, the CJI should ordinarily see that it is duly followed. Exceptions must be rare, and that too only for compelling reasons. While it is not clear in how many cases such exceptions were made, the four judges seem to have had an issue over the petition that sought an inquiry into the death of special CBI judge B.H. Loya in 2014 being posted before a particular Bench. The deceased judge was hearing the Sohrabuddin ‘fake encounter’ case, in which BJP president Amit Shah was an accused but later discharged. Given the political sensitivity of the matter, the concern expressed over this case is something that must be squarely addressed in a way that dispels any misgivings.
As for the government of the day, it must stay steadfastly away from the internal conflict in the judiciary — something that it has professed it will do. Rather than be inexplicably silent, it must disclose its position on the Memorandum of Procedure for judicial appointments and communicate this clearly to the Supreme Court. One of the specific issues raised in the letter written by the four judges relates to this issue. They have suggested that since the Centre had not responded to the MoP, effectively it was deemed to have been accepted. Given this, they have questioned why a two-member Bench had reopened the issue when the matter was already decided by a Constitution Bench.
Rather than brush away the concerns of the four judges, the Chief Justice must convene a meeting of the full court and give them a patient and careful hearing. Disapproval of the form of their protest must not cloud the substance of their grievances. That four senior Supreme Court judges could have been pushed to take such a drastic and unprecedented step suggests that the differences were allowed to fester and divisions allowed to run deep. Also, that they believed, rightly or otherwise, that their options of settling their differences internally were exhausted. It is best that there is no more airing of differences in public and that this incident is regarded by posterity as an aberration rather than a precedent. About a year ago, the nation was discomfited that the executive and the judiciary were publicly, and often very strongly, disagreeing over judicial appointments. An internal rift in the judiciary is far more serious. It poses the risk of diminishing the image of the judiciary and the esteem it enjoys in society. This institution has illumined national life for more than six decades, but a dark shadow hangs over it now. It is a moment for collective introspection.

http://www.thehindu.com/opinion/editorial/judiciary-in-turmoil/article22431846.ece

Rights in the age of big data

January 13, 2018 00:02 IST
Updated: January 13, 2018 00:13 IST

Data protection legislation should be about protecting people, not innovation

“What do judges know that we cannot teach a computer?” There is a substantial public sentiment that distrusts legal rules and state structures and looks to technology for solutions. After all, many trust their smartphones more than they trust their government. But what may seem as a fairly modern libertarian opinion, voiced in pitch decks and technology conferences, and buoyed by the success of the information economy, has much deeper roots. Such ambitions of a technology centric society were voiced more than forty years ago by John McCarthy, an influential computer scientist and professor at Stanford who coined the term, “artificial intelligence”, and nurtured it into a formal field of research. It was not that such assertions were without prominent challengers, noticeably Joseph Weizenbaum whose 1976 book titled Computer Power and Human Reason put people at the centre of technological progress, rather than being its subjects.
Many concerns

Debates on permission-less innovation, social leapfrogging facilitated by technology, and challenges to the legal order have now acquired greater urgency without losing any of their polemical flavour, shifting from academia to law-making. Concerns are being voiced this month in several Indian cities by members of the public, civil society groups, academic experts and technologists, think tanks, industry associations and technology companies to a committee headed by Justice B.N. Srikrishna, a former Supreme Court judge, tasked with making recommendations and drafting a data protection law. This committee holds immense promise but a white paper it published, the primary public document on the basis of which public comment is solicited, gives reason for concern.

The white paper, published late last year, extends into 233 pages and poses 233 distinct questions. While the sheer breadth of the paper poses granular choices, the broader framing of the document proceeds from a premise of weighing the scales between individual rights and technological innovation. The first few pages note the rationale of the committee “to harness the benefits of the digital economy and mitigate the harms consequent to it”.

Subsequent paragraphs provide further explanation: “Since technologies such as Big Data, the Internet of Things, and Artificial Intelligence are here to stay and hold out the promise of welfare and innovation, India will have to develop a data protection law... to ensure a balance between innovation and privacy.” This framing of a trade-off between the demands of technological innovation and individual rights is a terrible bargain for our future. It presumes to hold both fundamental rights and innovation as somewhat equal, or at the very least as competing values. This appears contrary to the context and the mandate of the committee, as well as principles of individual liberty.
The right to privacy

The formation of the Justice Srikrishna Committee on data protection was cited by government lawyers in the midst of Supreme Court hearings on the fundamental right to privacy in the Puttaswamy case. This submission was taken note by the Supreme Court of India, most prominently in the judgment authored by Justice D.Y. Chandrachud who observed that a “carefully structured regime for the protection of data” may be created, having “due regard to what has been set out in this judgment”. The judgment itself in previous paragraphs proceeded from a premise of asserting that the right to privacy exists as a natural right inherent in all fundamental rights of the Constitution. At the root of this is the liberty of the individual that finds expression through concepts such as autonomy and dignity — choice and freedom. Justice Chandrachud further noted that privacy has positive and negative features, where it restrains “an intrusion upon the life and personal liberty of a citizen”, and also requires “an obligation on the state to take all necessary measures to protect the privacy of the individual”.

A joint reading of all the six separate opinions which flow into the heart of the judgment lead to a singular inescapable conclusion. The privacy protections that limit state intrusion and data protection laws should shield individuals rather than commercial interests or technological innovation.

At this point a concern may arise about the dangers of a legal disruption to innovation. But using individual rights as a foundation is not the same as advocacy of Luddism — and may even be its very opposite. By avoiding a binary bargain between the benefits of rights and technology, a sound legislation would further innovation as a social goal that serves human needs. It would make big data subject to greater legality, the Internet of Things best suited to the Internet of people, and artificial intelligence subject to natural rights. To forge such an understanding, a fundamental acknowledgement has to be forthcoming that technology is a means, and not the end in itself. It must exist and work within the framework of the rule of law. While traditional legal systems are slow to adapt and change, the right regulatory design will prevent pure market mechanisms that concentrate power and cause harm to individuals. Doing otherwise would alert us to a danger as forewarned by Weizenbaum, that “technological inevitability can thus be seen to be a mere element of a much larger syndrome. Science promised man power. But, as so often happens when people are seduced by promises of power, the price extracted… is servitude and impotence. Power is nothing if it is not the power to choose.”

A practical way to operationalise individual choice in a data protection law is for the Srikrishna Committee to take the benefit of past expert efforts. Most noticeably by the Justice A.P. Shah Committee which a little over five years ago proposed nine privacy principles acting on a “fundamental philosophy” of “ensuring that the privacy of the data subject is guaranteed”. To operationalise these principles and account for “innovation” the A.P. Shah Committee among other things recommended, “the Privacy Act should not make any reference to specific technologies and must be generic enough such that the principles and enforcement mechanisms remain adaptable to changes in society, the marketplace, technology, and the government.” However, such existing recommendations proceed from a clear acknowledgement of data protection protecting individuals and not about protecting innovation, state interests for welfare objectives, or commercial interests of technologists and corporations. To ignore them would be to chart a perilous path that has become apparent over the past few months with wider implementation of Aadhaar.
Constitutionalism as guide

The Aadhaar project, which aims to usher a data-driven revolution in the private sector and at the same time act as a state policy panacea, has become a topic of continuing public concern. Repeated press reports indicate continuing data breaches, exclusion and theft of benefits, lack of legal remedies and the prospect of profiling and surveillance. Sufficient evidence exists today persuading us to honour constitutionalism, privileging individual rights over innovation. In doing so, we must forsake the artificial reasonableness of a balancing exercise between unequals. Such caution was counselled by Justice Srikrishna himself when he quoted the Garuda Purana in an article critiquing judicial activism to state, “He who forsakes that which is stable in favour of something unstable, suffers doubly; he loses that which is stable, and, of course, loses that which is unstable.”

Apar Gupta practises law in New Delhi