The Four judges of Supreme Court who recently held a press conference appealed to the public through the media with a request ‘please take care of the institution and take care of the nation’. The judges namely Justices Chelamaeshwar, Rajan Gogoi, Madan B Lokur and Jurien Joseph were complaining that the Chief Justice as “Master of the Roaster” is actually behaving as a “Master” and he should not do so. They said that their efforts to make him allocate sensitive cases only amongst the top 5 judges were not being heeded and some cases are being allocated to the junior judges.
The revolting judges agreed that this was an unprecedented situation and they wanted to go through this exercise as otherwise history would accuse them of having sold their souls.
The conference itself was held very clumsily. The judges did not have the press release nor a proper statement to be handed out to the press. There were favoured lawyers who were in the crowd of the journalists and Mr Shekar Gupta a veteran journalist was even invited to sit on the dais. Immediately after the press meeting, the CPI party leader Daniel Raja, a known opposition party leader was seen shaking hands with Justice Chelameshwar giving a political colour to the entire episode.
The judges came out as completely inexperienced in not only the manner in which they conducted the press conference but also the manner in which they were fumbling for words during the interaction.
Justice Chelameshwar said that what they wanted to share was a letter they had written to the CJI a copy of which would be shared and that is all they wanted to say. Gagoi confirmed that there is nothing more to say beyond the letter but inadvertently admitted that the admission of the case in the Justice Loya’s death was a reason for this press meet.
Mr Dushyant Dave has been the advocate strongly advocating that the Justice Loya case should not be heard by a specific judge and it should be heard only by one of these four judges as if they would give a decision in his favour only.
Another advocate Mrs Kamini Jaiswal who is bitterly against Mr Amit Shah indicated in her subsequent statements that the possibility of Mr Amit Shah not being convicted was the reason behind this revolt. It was as if Teetla Setlwad was speaking through Kamini Jaiswal.
Yet another advocate Indira Jaising has also been vocal with similar views indicating that the politics of “Anti Amit Shah” forces were truly pushing the judges into a corner with the press conference.
It appears that these three advocates are either directly or indirectly responsible for the current mess in the Judicial system and are unmindful of the damage that they have done to the Indian judiciary for their own personal gains.
It was not surprising that Congress followed up with its own Press Conference though it was also as indecisive as the Judges press conference. It appeared as if Mr K.S.Tulsi had strongly opposed Congress getting into this controversy but Kapil Sibal and P Chidambaram pushed through the conference. Rahul Gandhi in his usual style spoke a rehearsed sentence and ran away without taking questions.
With the Meeting of D Raja with Chlemeshwar and the Congress press conference, it was clear that the Four Revolting Judges were playing the tune of the political parties. However much they may try to whitewash their intentions, the perception with the public is clear that this was a political agenda playing out through the four judges.
It appeared that these four judges wanted to say more but were restraining themselves. Finally the charges made by the four judges appeared hollow and self defeating. Had they been more forthright, they would have atleast sounded more convincing.
Since then, several legal luminaries are expressing their views on the points raised. A large number of advocates are on the side of the Four revolting Judges while a large number of past judges are holding the view that conducting of the press conference was wrong.
If we ignore the perceptions and focus more on the problem they have highlighted, then solution is not difficult to find.
The accusation is that while the CJI is considered as having a discretion to constitute benches and allocate cases to any of them, he should do so only with the consultation of the 5 senior most judges who form the collegium.
While the Judges 2-5 in seniority who held the Press Conference hold that CJI is only the “First amongst equals ” and not more important than any of them, they consider that other judges of the supreme court who are 6-25 in seniority are lesser mortals who are not equal to the first five.
This does not seem to be a logical l argument and has to be rejected.
Either all the judges have the privileges attached to their seniority in which case the CJI as the senior most has higher privileges that includes the management of the roaster, or they should agree that all judges of the Supreme Court are equally competent to handle any legal matter before them without fear or favour and with the legal expertise required.
Expecting that the rule of “First amongst Equals” applies only to the first five and not to all the 25 judges of the Court indicates a self serving argument.
If we admit that the roaster allocation had some “Motive” behind it as implied by these four judges, we can also imply a “Motive” behind the accusation of the four revolting judges. If CJI wants to avoid handing over some sensitive cases to any of these four and wants to give it some other judge down the line which is a departure from the procedure indicates a “Bad motive”, then the demand that such cases should be handed over only to them and not to anybody else also indicates a “Bad Motive” on the part of the four judges.
If we leave aside these perceptions since these judges are not transparent about their motives and want to hide behind the respect they enjoy as judges of the highest court of the land, let us accept that the only grievance is that the allocations are being done not in accordance with the established procedures of the past where all the five senior most judges worked together as a collegium and distributed sensitive cases only amongst themselves so that none was unhappy but the current CJI is trying to break this tradition.
Perhaps this is making these judges insecure and their friend lawyers also more insecure because they were perhaps existing in the system more by the strength of their relationship with the judges rather than their ability to fight a case on the merits.
The solution for this is not in asking the media and the public to adjudicate since what “We the people ” may say will not be palatable either to these judges nor to their favoured lawyers. Nevertheless since they have sought our advise, let us provide them the advise.
The problem is about allocation of cases to the 25 judges of the Supreme Court in an equitable manner that justice is done to the petitioners. The criteria of seniority is only relevant as a demonstration of the expertise of a judge and not otherwise. Each judge may however carry a badge of domain expertise based on the type of cases in the past where he would have examined a particular domain in depth and thereby gained an expertise. There cannot be any expertise based on qualifications since the College qualifications of all the judges are at least 3 decades old and has no relevance today. For example, Mr Chelameshwar being a student of Physics in his college does not make him a domain expert in a case involving Noise pollution or Electric outage etc.
Either the judges have to declare their top three areas of interest/specialization based on their own self introspection or based on the cases they might have handled in their career and have to be tagged with the domain of expertise which were required to resolve them.
Assigning a “Domain Expertise Tag” to every judgement released by a judge in all the Courts is a process that has to be introduced now so that after a decade or so, it becomes a reliable barometer to tag a Judge with his area of domain expertise. Criteria for this needs to be developed and adopted.
In the meantime, an adhoc measure can be adopted where each judge of the Supreme Court is asked to declare three areas of interest that is used as his “Specialization Tag”.
Every judge will automatically have a seniority tag also. Using these two tags along with a “Random Allocation Tag”, it is possible for the Chief Justice to select a Judge or a Bench of multiple judges for assigning any case.
For this purpose, the CJI may categorize a case as “Requiring a specific domain expertise”. He can use is “First amongst equals” privilege to do so. Similarly, he can decide on whether the case requires a single judge or more judges to be in the bench. Having decided these two parameters out of his privilege of being the CJI, he can proceed to allocate cases in the following manner. CJI can also determine the workload of a judge and determine if he has to be part of the selection for a given case or not.
a) In case of single member allocations, the choice can be completely randomized, such as picking up a judge out of the 25 (or lesser numbers if some is over burdened with cases at present). It is possible to do this by computerized allocation with priority criteria for domain expertise and seniority to be set to zero.
b) In cases where two judges are there in a bench, one of the selections can be made on domain expertise criteria and the other on random basis.
c) In cases there there are three or more members in the bench, one member may be selected on seniority basis, second on domain expertise basis and the third randomly.
In larger benches the criteria can be repeated for the balance vacancies to be filled up.
This process leaves enough scope for the CJI to exercise his privilege and also provide opportunities for the senior members to be part of the important cases where there are at least 3 members. The single member benches which are prone to manipulation by friendly advocates would be randomized so that no advocate would gain an unfair advantage with a petitioner saying “I Know this Judge, Come to me”.
If the Supreme Court wants a software to be developed for the purpose, I am sure that there would be many software professionals who would be willing to develop it for free as their contribution to protect the institution which is the concern of these four revolting judges.