On Friday January 12, 2018, something unprecedented happened in
India. Four Supreme Court judges, Justices Kurian Joseph, Ranjan Gogoi, J.
Chelameswar, and Madan Lokur, revolted against Dipak Misra, the Chief Justice of
India (CJI). This was a remarkable event considering that the Supreme Court of
India has five senior judges.
Revolt of Four Indian Judges Motives, Ethics,
International Precedents and Remedies
On Friday January 12, 2018, something unprecedented happened in India. Four
Supreme Court judges, Justices Kurian Joseph, Ranjan Gogoi, J. Chelameswar, and
Madan Lokur, revolted against Dipak Misra, the Chief Justice of India (CJI).
This was a remarkable event considering that the Supreme Court of India has five
senior judges. The judges held a press conference and publicly criticized the
CJI Misra over what they termed as his arbitrary way of assigning vital cases to
benches headed by junior Supreme Court Judges, and in so doing ignoring the
senior judges. They claimed that he assigned the cases to benches of preference
regardless of the fact that the cases had far reaching effects, and consequences
on India. The press conference was held at the resident of Justice Chelameswar,
the senior most judge, which is only 200 meters from the residence of the Chief
Justice (Mahapatra, 2018).
Possible Causes and Motives
Justice Chelameswar claimed that the four judges had written a letter to the CJI
a few months ago but they did not get a positive reply from him. They also
claimed that they had called Justice Misra that same morning before holding
their press conference as CJI Misra failed to take their plea seriously. The
four judges also revolted against the CJI for turning down their request to
shift a certain politically sensitive case from a specific bench. The CJI backed
a five-judge bench to hear the case and in so doing assigned himself the sole
discretion of assigning cases to the benches he chose. This is despite the fact
that a bench led by the CJI admitted a public interest litigation (PIL) on the
probe of the death of B.H. Loya, a special Constitutional Bench of India (CBI)
judge who was hearing a case on Sohrabuddin Sheikhâ€™s encounter. The four
judges were all members of the Collegium system that appointed judges since they
all are senior judges. The four judges thought that since the matter on the
death of B.H. Loya was vital to the integrity of the judiciary, it should have
been assigned to a bench headed by a more senior judge instead of Justice Arun
Mishra, who was 10thÂ in the pecking order of the judges of the Supreme Court (Mahapatra,
2018). The four judges may have felt that the CJI used his discretion to appoint
members of a bench wrongly in order to influence the outcome of the ruling.
Nevertheless, it is vital to note that even before the revolt Justice
Chelameswar had a history of being a dissenting voice in the India judiciary.
Indeed, this was not the first time that he was speaking against a judgment of
the Supreme Court. Some of the landmark decisions of Justice Chelameswar include
nullifying Section 66 of the Information Technology Act. Justice Chelameswar
also led the bench that referred the issue of the privacy concerns of Aadhaar, a
unique 12-digit identity number issued to all Indians, to a bigger
Constitutional Bench. Justice Chelameswar was the only dissenting voice in the
Constitutional Bench. In addition, he shut out the attempt of the Indian
government to assume control of the appointment of judges (Mahapatra, 2018).
Such a person of good credentials, soon after the press conference, had a
meeting with a left wing political party leader at his residence, which caught
the attention of the media and led to attribution of political motives to his
revolt. In a way, this very act of Justice Chelameswar meeting Politician Raja
has fizzled out the whole issue as politically motivated.
Ethics of the Revolt of the Indian Judges
The issues raised by the judges involve the issue of propriety. Propriety refers
to behaving in a manner that conforms to the accepted standard of behavior and
morals. It involves the fear of going against the rules that govern behavior.
Judicial propriety required the four judges to respect the decision of the
Supreme Court and the Chief Justice to whom they are subordinate regardless of
whether they agree with the decision or not. Propriety comprises certain
principles, which include openness, integrity, objectivity, and honesty.
Therefore, addressing the media was a violation of judicial impropriety.
Convention required the judges to resolve internal matters internally. In
addition, addressing the media set a wrong precedent of publicizing the internal
matters of the judiciary. It led to the tarnishing of the image, reputation and
credibility of the judiciary since there were incapable of solving internal
matters without involving the public.
Nevertheless, the four judges justified their actions by claiming that they did
not have any other option since the CJI did not listen to their repeated pleas
to solve the issue internally. In addition, it would have been wrong for the
judges to remain silent since would have been tantamount to keeping Indian
citizens in the dark, which is an unacceptable practice in a democracy like
India. The four judges claimed that the integrity of the CJI was compromised.
Regardless of these explanations, it is vital to note that going to the press
did more harm than good to the Supreme Court. It questioned the sanctity of the
Supreme Court and opened the door to multifarious views some of which may
tarnish its image. Ideally, the four judges should have called for a conference
of all judges of the Supreme Court to discuss the issue. If this move was
unsuccessful, they could have requested help from the President.
Comparison of Indian Case with International Revolts among Judges
Canada is one of the jurisdictions where there have been public disagreements of
judges. In December 2017, Justice George Rideout of the Court of the Queens
Bench accused the Chief Justice David Smith of violating the law. Therefore, he
asked him to resign. The issue that led to the disagreement is the change in the
Judicature Act by the provincial government, which required the chief justice to
seek the approval of the Attorney Generals office prior to relocating judges
from one place to another. Chief Justice Smith claimed the law was
unconstitutional since it interfered with the independence of the judiciary.
This lend to tensions between judges when Chief Justice Smith approved the
relocation of Justice Thomas Christie from Saint John to Frederiction despite
the fact that the province had temporarily blocked his relocation. This prompted
Rideout to claim that Smith was breaking the law and setting a bad precedence
and should therefore resign (Bissett, 2018).
In Australia, Athol Moffitt, the former President of New South Wales Court of
Appeals, criticized James Wood, New South Wales Supreme Court Justice, for
making public statements on the drug wars in the state of New South Wales.
Justice Moffitt claimed that it was wrong for judges to venture into politically
disputed areas as this risked interfering with the independence of the judiciary
and public confidence on the judiciary (Lee, 2011).
Public conflict among members of the judiciary also occurred in Bangladesh in
late 2017. The government was infuriated by the decision of the Chief Justice
S.K. Sinha to scrap the authority of parliament to impeach judges of the Supreme
Court. In an unprecedented move, the judges of the Supreme Court refused to sit
in Sinha's bench over allegations of moral lapses and graft, which they had been
told by President Abdul Hamid. On September 30, 2017, President Hamid had
invited all five Supreme Court judges to the presidential palace but barred the
chief justice from the meeting. He subsequently held long discussions with the
judges. The chief justice was accused of graft after he left the country for
Australia in mid-October 2017 (Habib, 2017).
In the U.S., judges of the 9thÂ Circuit Court of Appeal engaged in a public feud
over the travel ban implemented by President Donald Trump. Five 9th A Circuit
judges recorded their opposition to the decision that three other judges of the
9thÂ Circuit had issued the previous month. The decision of the three judges
refused to allow the reinstatement of the first version of the travel ban that
Trump had implemented using an executive order. The five judges who opposed the
travel ban included Judges Alex Konziski, Jay Bybee, Carlos Bea, Sandra Ikuta,
and Consuelo Callahan (Gerstein, 2017). The public disagreements show the sharp
divisions in the U.S. judiciary on the implementation of President Trump first
Executive Order banning Muslim travel to the U.S. in line with his campaign
Revolts in the Judiciary and Democracy
The judiciary helps in safeguarding the democracy of a country. In addition,
public perception is the foundation of democracy. This is the major reason as to
why so much effort is invested to manage public perception. Sadly, the
perception of the democracy is harmed when there is mutiny in the judiciary. In
the case involving the four judges of the Supreme Court of India, the judges
failed to acknowledge the fact that the Chief Justice as the first among equals
has the right to safeguard the welfare of the judiciary and its public
perception. Therefore, the four judges erred in washing the dirty linen of the
Supreme Court in public. They should have solved these problems internally. They
should have respected the institution of judiciary by respecting the fact that
it is above the people that manage it. In addition, the public pronouncements of
the four judges are a sign that the judiciary is getting politicized. Therefore,
by making pronouncements to the press, the judges engaged in unethical conduct.
Since the Chief Justice is the master of the roster, he should not distinguish
between VIP and non-VIP cases. The Chief Justice is empowered by the
constitution to assign cases to any judge. It was wrong for the four judges to
expect that they should receive certain cases. It is also vital to note that the
Chief Justice should also bear the blame of the tarnishing of the image of the
judiciary. As the father of the judiciary, he should not have allowed the issues
to go out of hand. The Bangladesh case shows the negative impact of such a
revolt on democracy. It shows the revolt may be used by people in power to
influence the judiciary and overthrow a chief justice who they perceive does
provide them with preferential treatment.
Remedies for Non-Recurrence of Such Revolts
Similar revolts may be avoided by ensuring that there are efficient systems to
address the concerns of members of the judiciary. People should also not be
quick to rebuke the judges for their mutiny. Instead, more focus should be put
on their grievances to ensure they are tackled effectively. It is also vital for
the government to stay away from the internal conflicts of the judiciary to
ensure it maintains its autonomy. May the computerization of roster and
developing of an algorithm which allocates cases to various benches without any
human intervention, be the best solution to avoid such concerns.
Written by: Dr.V.V.L.N. Sastry, Researcher in Law at Walden University, USA.
# Bissett, K. (2018, February 8). Public dispute among New Brunswick judges is
'extraordinary,' professor says.Â National Post. Retrieved from: http://nationalpost.com/pmn/news-pmn/canada-news-pmn/public-dispute-among-new-brunswick-judges-is-extraordinary-professor-says
# Gerstein, J. (2017, March 17). 9thÂ Circuit judges in nasty feud over Trump
travel ban.Â Politico. Retrieved from: https://www.politico.com/story/2017/03/9th-circuit-judges-feud-trump-travel-ban-236211
# Habib, H. (2017, October 15). Bangladesh Chief Justice faces 11 charges,
including graft.Â The Hindu. Retrieved from: http://www.thehindu.com/news/international/bangladesh-chief-justice-faces-11-charges-including-graft/article19866619.ece
# Lee, H. P. (2011).Â Judiciaries in Perspective. Cambridge: Cambridge
# Mahapatra, D. (2018, January 13). Final trigger: Rejection of demand for
senior bench to hear PIL on Judge Loya's death.Â Times of India.Â Retrieved