It was a historic sight: Four senior judges of the Supreme Court, two of whom are future chief justices, surrounded by a gaggle of journalists firing away. Outside the pulpit of their courtrooms, without their black robes, and on the other side of an interrogation, the judges looked oddly vulnerable, and ill-prepared to deal with the media. On January 12 justices J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurien Joseph “discharged their debt to the nation”, and pre-empted “wise men” from questioning them 20 years later. Theirs was a cry of anguish and helplessness at the way Chief Justice Dipak Misra was functioning in his capacity as master of the roster. The chief justice is first among equals, and has administrative powers to oversee the smooth functioning of the country’s highest court. As master of the roster, the chief justice allots cases to his fellow judges and forms benches, an exercise that follows few conventions, is not transparent, and the best that can be hoped for it is that it reflects some kind of consensus within the court.

The four senior judges who took the extraordinary step of calling a press conference said Justice Misra’s functioning was a threat to democracy, and that the public had the right to know. These are strong words and even stronger insinuations. While heeding the calls of their conscience, the dissenting judges overthrew every judicial principle of restraint, and openly violated the self-imposed code of “Restatement of values in judicial life” adopted by the full bench of the Supreme Court in 2007. The public spectacle of a press conference is expressly barred in that.

The Supreme Court’s internal contradictions have for a while now been a subject of much public murmuring. The press conference brought the split into the open. Four judges next in seniority to the CJI had lost their faith in him, and it needed a press conference to deliver the message. In the letter the judges released to the media they said: “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 rational basis for such assignment.”

The judges cannot say this much and refuse to reveal more—the integrity of the institution and reputation of their colleagues at the bench both have been put on the chopping block. It also invites the political class to indulge in mudslinging.  After this pronouncement, judgments in certain cases will always be shrouded in a cloak of suspicion.   

The CJI is being accused of bench-fixing in matters of national importance to suit the central government. This is an unfortunate statement, and casts aspersions on other judges of the Supreme Court without any proof. The judges cannot say this much and refuse to reveal more—the integrity of the institution and reputation of their colleagues at the bench both have been put on the chopping block. It also invites the political class to indulge in mudslinging.  After this pronouncement, judgments in certain cases will always be shrouded in a cloak of suspicion. That is too high a price to pay for however legitimate the grievance may have been with allocation of work.

While this is a rare case of public disagreement in the Supreme Court, the problem is rooted in the higher judiciary’s closed-door functioning and an institutional reluctance to submit itself for scrutiny. From appointments to division of work to even bringing it under the RTI, the court has favoured opaque systems that it alone controls. It is accountable to no one, and has through decades of case-law, from Kesavananda Bharti’s all-encompassing basic structure doctrine to the two Judges’ cases subsumed powers to itself the Constitution’s makers had not even dreamt of. There is no way to stop an errant judge or even a chief justice, short of impeachment which really is the remedy of the last resort involving the legislature.  And no, a media trial isn’t the answer either. The press conference sets an unwelcome precedent; it gives a roadmap to disgruntled elements in the judiciary.

As far as Justice Misra is concerned, he cannot ignore the charges by his colleagues, and no closed-door compromises reached can save the institutional integrity of the Supreme Court. Once the four judges questioned the CJI in public, the answers too have to be given to the people. As the head of the judiciary, it is incumbent upon him to do damage control. Explaining the way rosters are set and his discretionary role in it would be a first step. Protecting the sanctity of the judicial process in the cases questioned by the four judges would be another way. There’s isn’t much time to make amends. Justice Misra will retire soon, and at stake are both his and the Supreme Court’s legacy.