India’s Chief Justice Under Attack by Peers

Four of the five most senior judges in India’s Supreme Court on Jan. 12 held an unprecedented press conference to complain about their colleague, Dipak Misra, the chief justice. At first glance it looked like a spat between aging legal minds angry at being side-lined during the allocation of cases by their boss, who they insist is not the boss but just the first among equals.

The event hit media headlines and stirred up political controversy because judges had never before gone so public with grievances. Their complaint – about the allocation of major cases – was also significant because it comes at a time when Narendra Modi’s Bharatiya Janata government is being accused of having little respect for key institutions that underpin India’s democracy. Amit Shah, the BJP president, was involved in one of the cases cited by the four.

The judges are back in their courts, seemingly working as if nothing untoward had happened, and official statements were issued that all was “back to normal.” Efforts have been made by both the government and the legal establishment over the weekend to play down the importance of Friday’s eruption, and also to shift attention by blaming the four judges for undermining the reputation of the judiciary.

The row has been simmering for some time and will not be so easily dismissed. Four months ago, the four judges wrote a letter to Misra, which they issued publicly, complaining about the way that cases were being allocated. The chief justice is regarded as the first among equals but, as “master of the roster” has the right to decide on the allocation, subject to a convention (recently confirmed by the Supreme Court) that nationally important and sensitive cases are given to the most senior and experienced of the court’s 25 judges.

The basic complaint of the four judges (above) is that Misra has been giving cases to junior judges who, though the four did not specify this, are either loyal to the BJP government or can be influenced – corruption has spread across the judiciary in recent years.

The letter to Misra, who is due to retire in October, complained that there “have been instances where case having far-reaching consequences for the nation and the institution had been assigned by the Chief Justices of this court selectively to the benches ‘of their preference’ without any rationale basis for such assignment.”

The real issue has been spelled out by an outspoken senior Supreme Court lawyer, Dushyant Dave, to a leading news website. He has said the protest reflected “frustration on the part of the senior judges at the conduct and behavior of the Chief Justice of India in dishing out matters of public importance and political sensitivity to a chosen few, who will decide only in favor of the government, the BJP and the RSS, and who will not independently decide those matters.”

Death of a judge

Dave said he knew of 50 other instances where leaders of opposition political parties’ cases were dismissed, while “matters affecting the current government and the political party in power” were sent “to certain judges to see that they (the government of the day and the political party in power) benefit.”

One of the four judges said that their press conference had been prompted by issues surrounding the death of a judge, B.H. Loya, in December 2014. Loya was hearing a case over the alleged killing of a gangster in a “fake encounter” in 2005. Among the defendants was Amit Shah, now the BJP president, who was accused by the Central Bureau of Investigation of ordering the killing when he was Gujarat’s home minister (and Modi was chief minister). The case was dismissed after it was taken over by another judge.

There has been continuing controversy over the cause of Loya’s death, which was recorded a cardiac arrest.

Loya’s family was reported to have alleged that he had been offered a substantial bribe shortly before he died, and there continue to be conflicting reports and testimonies involving doctors, police and others about what happened when he was taken ill.

A court headed by the chief justice last week admitted a public interest petition asking for an inquiry into the matter, but then allotted it to the 10th most senior of supreme court’s judges, not to the most senior and experienced. The four judges met Misra (above) and complained and, after he failed to meet their demands, held their press conference.

Yesterday, Loya’s 21 year old son appeared at a media conference closely flanked by two lawyers. Unexpectedly, he said that the family accepted his father’s death was natural and asked for the public debates to end. His appearance however caused more controversy with allegations that he was not reflecting the family’s views.

Other controversial cases, some involving corruption, include judgments given by Misra on appeals by a medical institute barred, along with others, from admitting students.

Of more political significance, Misra was the judge who ordered in November 2016 the playing of the national anthem in cinemas to “instill committed patriotism and nationalism” – an initiative that fitted with the government’s nationalist and authoritarian approach. Two months ago, however, he changed his mind and, along with two other judges, said it was not compulsory, which the government supported.

The reputation of the judiciary has been declining in recent years because of increasing corruption at all levels. Dushyant Dave told the news website that “the higher judiciary, corruption, political interference are destroying judicial independence for quite some time, which has always been kept under the wraps, unfortunately, due to weak bars and an even weaker press.”

Government attempts to influence the judiciary are also not new though, lawyers say, they have not blown up so seriously since the mid-1970s State of Emergency ordered by then Prime Minister Indira Gandhi.

It is too soon to forecast how this will play out. What is clear however is that the BJP, for whatever reason, does not want an inquiry into Loya’s death, and is resisting Congress Party demands for one.

Two pro-government English language television channels have this week run long programs aimed at rubbishing suggestions that there was anything controversial about the death, and attacking lawyers and others who want an judicial inquiry. All of which leads to the question of why the BJP and the government are so concerned.

John Elliott is Asia Sentinel’s New Delhi correspondent. He blogs at Riding the Elephant.