The four judges expressed their dismay regarding the way in which the administration of justice is functioning, as well as their displeasure over the Chief Justice of India (CJI) not heeding their suggestions and opinions. Incidentally, all four are part of the five-member Collegium of the Supreme Court, endowed with the duty of recommending appointment of judges to the apex court. It is not as though differences never cropped up among the judges of the higher judiciary in the past.
Justice Krishna Iyer once remarked that even though there is one Supreme Court in Tilak Marg (Delhi), within that, there are 31 Supreme Courts. But for the judges having differing opinions, there will not be any dissenting opinions of the decisions rendered by courts.
In the US Supreme Court, all the nine judges sit together and decide matters. Often, the majority opinion of five judges will carry the order of the day. In our Supreme Court, decisions are rendered by benches comprising of two or three judges.
Only in cases involving constitutionality of a statute, five-judge benches are constituted. Recently, there was a controversy over the bench presided by Chelameswar, giving permission to move an urgent matter in a case in which Chief Justice Deepak Misra’s name figured. He referred the case to be decided by a five-judge bench going down from the second seniormost judge of the apex court.
Promptly, the CJI cancelled that order and sent the matter to a three-judge bench nominated by him. It was pointed out that the CJI, as a master of rolls, can alone decide listing of matters before appropriate benches and no one can take over such power even through judicial orders.
In the recent past, there have been several instances of such decisions taken by other benches being cancelled by the CJI. One such is the vexatious question of preparing a ‘Memorandum of Procedure’ (MoP) for appointment of judges, to be drawn by the Supreme Court. A bench of two judges started hearing the reason for the delay in preparation of the MOP, on the basis of the PIL assigned to them. That order was cancelled by the CJI. The practice of the Chief Justice of a court being empowered to assign work to other judges is a British precedent.
That is how he was also known as master of rolls. There were instances when judges started deciding matters on the basis of newspaper reports or individual letters addressed to them by the public. The Supreme Court ruled (2008) that no individual judges can ever entertain such letter petitions and whether such cases should be heard or not shall be decided only by the Chief Justice.
When the Chief Justice allots portfolio periodically to various benches and at times allot specially ordered matters to a specific bench, he can, in a way, decide the outcome of the case. It is also unthinkable that he could decide matters when his own interest is involved or his name is under a cloud. Therefore, a way out must be found on the matter of allotment of roster to other judges by the head of the judiciary. The four-judge meeting essentially called for a reform in the roster allotment, as well as regulating the power of the Chief Justice.
Normally, it is the people who say that they go to court as a last resort. Now we find judges appealing to the people, calling it as a last resort. Such unconventional measures may not appeal to the conservative mind, but the issues raised by the judges are worth pondering over. We must also note that in the entire subcontinent, the Chief Justices of Pakistan, Sri Lanka and Bangladesh have been sent away, for one reason or the other. However, our pride that our judiciary is invincible is slowly withering away. We should be vigilant and ensure that there is no political interference emerging to take advantage of the difference of opinion among the judges.
The writer is Retd. Judge, Madras High Court