Not since the days of the Emergency in the 1970s has the judiciary in India faced a more controversial year than it did in 2018. Judgements of the courts cause controversies, but rarely have judges been in the eye of political storms like it happened this year. From a historic press conference in January by four senior judges of the Supreme Court – the first such instance since Independence – to an impeachment motion in the Rajya Sabha in April seeking the removal of a chief justice, 2018 was deeply tumultuous for the men and women in black robes. Here is a recap of how the crisis unfolded through the year:
Scams, scandalous hearings
As a matter of ethics, Supreme Court judges have always been stoically silent about what happens inside the courtroom. The undeclared rule has been that any misunderstanding must be sorted out within. This silence has also been seen as a form of defence against outside interference, which can compromise the independence of the judiciary. But all these assumptions were blown to smithereens in January when the four senior judges of the Supreme Court decided that “sunlight is the best disinfectant”.
The genesis of the controversy goes back to September 2017, when the Central Bureau of Investigation named former Odisha High Court judge IM Qudussi in a first information report in what has been called the “medical college scam”. He was arrested, then released on bail. The case pertains to alleged attempts to influence Supreme Court and High Court orders in favour of a medical college through former members of the judiciary. A public interest litigation was moved in November seeking a special investigation, which was referred to a five-judge Constitution bench by Justice J Chelameswar, then the second senior-most judge in the Supreme Court. A day later, Chief Justice Dipak Misra hurriedly put together a five-judge bench and nullified Chelameswar’s orders. In December, the court dismissed two petitions making similar prayers and imposed heavy costs on the petitioners.
As the fire lit by the medical college scam was being put out, another storm was brewing. A petition demanding an investigation into the death of former Maharashtra judge BH Loya stunned the Supreme Court and led to the press conference that split the court right down the middle.
On January 12, Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph spoke to reporters making charges that implied that the independence of the judiciary had been compromised as the chief justice was acting in a less-than-desirable manner.
Two important points were raised. The first was a question over the memorandum of procedures for judges’ appointments. A letter the judges had written to Misra, which was released at the press conference, questioned the rationale of a bench asking for the memorandum to be finalised when this had already been completed in March 2017.
The second was the question of assigning cases to benches, which is the chief justice’s role as master of the roster. The letter said cases had been assigned by going against convention. When asked if the assignment problem involved the allocation of the petition seeking an investigation into Loya’s death, Gogoi answered in the affirmative.
At the time of his death in October 2014, Loya was hearing the Sohrabuddin Sheikh encounter case, the prime accused in which was Bharatiya Janata Party president Amit Shah. Two months after Loya’s death, Shah was discharged from the case. An investigation by Caravan, published in November 2017, raised doubts about whether Loya had died from natural causes. A public interest litigation was moved, seeking an investigation.
Observers are still unclear about what the judges’ press conference really achieved. In April, a bench headed by Misra dismissed the petition seeking an investigation into Loya’s death. Misra continued to assert his position as the master of the roster and important cases continued to be kept away from benches headed by senior judges.
Also in April, the controversy in the judiciary turned political with the Congress deciding to move an impeachment motion against Misra in the Rajya Sabha.
As the Supreme Court was in the midst of the controversy over Loya’s death, proceedings in the Ayodhya-Ram mandir case had also begun. Congress leader and senior lawyer Kapil Sibal, appearing for one of the parties, wanted the court to postpone the hearings to after the 2019 Lok Sabha elections because of the sensitive nature of the case. This did not happen.
In March, the Congress decided to move an impeachment motion in the Rajya Sabha against Misra, making it the first such attempt against a sitting chief justice in independent India. The charges against Misra included illegal acquisition of land in Odisha, his handling of the medical colleges scam petitions, and the points raised against him by the four judges in their January press conference.
The notice for the motion was rejected by Rajya Sabha chairman Venkaiah Naidu. The Congress then moved a petition in the Supreme Court challenging the rejection of the motion. But it withdrew the petition after the court refused to provide it with a copy of the order on the formation of a five-judge bench that was set to hear the case. Since Misra was the subject of the impeachment motion, there was a conflict of interest in him assigning the case to a bench.
Like the press conference, nothing substantial came out of the impeachment motion. But the controversies in the judiciary did not end with this.
KM Joseph’s elevation
The Supreme Court collegium’s recommendation in January that Justice KM Joseph, the Uttarakhand High Court chief justice at the time, be elevated to the apex court was the subject of yet another row. The Centre objected to Joseph’s name and returned the file, arguing that there were several High Court chief justices senior to him were waiting for a call to the Supreme Court. The government also claimed that Joseph’s parent High Court of Kerala was already adequately represented in the Supreme Court. Many speculated that the real reason for the government’s opposition to Joseph’s elevation was his judgement striking down the Centre’s decision to impose President’s rule in Uttarakhand in March 2016. However, Union Law Minister Ravi Shankar Prasad denied that this was the case.
After three sittings, the Supreme Court collegium reiterated Joseph’s elevation in July. But the appointment notification placed him lowest in a list of three judges, even though the decision to elevate the other two had been taken much later by the collegium. Thus, Joseph lost his seniority.
These controversies eclipsed some extraordinary judgements the Supreme Court delivered in 2018, including rulings decriminalising homosexuality and allowing the entry of women of menstruating age inside the Sabarimala temple in Kerala.