Justice Jasti Chelameswar, the second-most senior judge of the Supreme Court, has allegedly written a strong letter to the Chief Justice of India, Dipak Misra, flagging interference by the Executive in the functioning of the Judiciary and asking for action to be taken to address this.
The alleged letter, dated 21 March 2018, and marked to all the other judges of the Supreme Court as well, was triggered by a communication from the Union Ministry of Law and Justice to Karnataka High Court Chief Justice Dinesh Maheshwari. The Ministry had contacted Justice Maheshwari to ask him to look into allegations against District & Sessions Judge P Krishna Bhat, who the Supreme Court Collegium had recommended for elevation to the Karnataka High Court.
According to Justice Chelameswar, this was “improper and contumacious” since the matter had already been looked into by a previous chief justice of the Karnataka High Court, who had found the allegations to be “incorrect and concocted”, and the matter had been conclusively rejected by the Supreme Court as a result.
Investigation Into Allegations Concluded
The matter allegedly came to Justice Chelameswar’s attention when he was provided a copy of a “confidential report” sent by Justice Maheshwari to CJI Misra, in which he set out all the details of the central government’s communication to “look into the issue” of the allegations against Judge Bhat.
The allegations relate to a complaint by MS Shashikala, a Judicial Magistrate who had accused Judge Bhat of “atrocities and abuse of power”. The complaint was first made in June 2016, after the Karnataka High Court had suggested Judge Bhat’s name for elevation.
The Supreme Court asked the then Chief Justice of the High Court SK Mukherjee to look into the matter, who found in November 2016 that the allegations were false and had been made “only to malign” Judge Bhat.
Judge Bhat had in fact filed a report against the complainant for misconduct in 2014, which was only acted upon in February 2016. The complainant resigned in April 2016, then withdrew her resignation and instead filed the complaint against Judge Bhat.
The whole issue seemed to have been resolved, and so the Supreme Court Collegium recommended (for a second time) to the Centre that Judge Bhat should be appointed as a judge of the Karnataka High Court. However, as Justice Chelameswar allegedly notes in the letter:
For sometime, our unhappy experience has been that the Government’s accepting our recommendations is an exception and sitting on them is the norm. “Inconvenient” but able judges or judges-to-be are being bypassed through this route.
The Centre sat on the file, failing to even send it back to the Collegium to reconsider, even though it accepted the other recommendations made to them at the same time.
In December 2017, the complainant filed a fresh petition to the government, claiming that Judge Bhat had “managed” her complaint. It was after this that the Law Ministry contacted Justice Maheswari.
Justice Maheshwari Seems to be ‘More Loyal Than the King’: Justice Chelameswar
The fact that the Centre chose to bypass the Supreme Court and directly reach out to the Chief Justice of the High Court to look into the matter is itself considered a matter of grave impropriety. The Indian Express reported on 20 March that the CJI had taken a “strong view of the case which allegedly violates established procedure for appointment of judges to the high courts”.
Justice Chelameswar’s alleged letter elaborates on this point, saying:
I do not think any of us disputes that elevating a person to be a judge of a High Court is a constitutional concern involving two authorities: the Supreme Court and the executive. The role of High Court ceases with its recommendation. Any correspondence, clarificatory or otherwise, has to be between these two authorities.
The decision of Justice Maheshwari to act on the Law Ministry’s communication, without prior permission of the CJI, makes the whole situation even worse, and makes the whole thing become an example not only of Executive encroachment on the Judiciary’s independence, but a ceding of this independence and institutional integrity.
Someone from Bangalore has already beaten us in the race to the bottom. The Chief Justice of the Karnataka High Court has been more than willing to do the Executive bidding, behind our back.Justice Chelameswar
Justice Chelameswar reportedly goes on to express his displeasure at the actions of Justice Maheshwari in scathing terms, writing:
The Chief Justice, establishing himself to be more loyal than the King, acts on it, convenes a meeting of the Administrative Committee, and decides to reinvestigate the issue, thus burying the previous Chief Justice’s findings on the same issue, given at our asking. He has been gracious enough to inform us, at least now.
Action Recommended: Sitting of the Full Court
According to the alleged events taken up in the letter, it seems like the Executive was indeed trying to bypass the Supreme Court and meddle in the functioning of a high court of the country, administration of which is supposed to be the domain of the Judiciary. “The confidential report blatantly records the impropriety of the Executive directly contacting the High Court to reassess a collegium recommendation of the Supreme Court”, writes Justice Chelameswar.
The Quint has been unable to verify if the letter was actually sent by Justice Chelameswar to the CJI, but it certainly seems in keeping with his track record of speaking out against what he views as impropriety. In January this year, he was one of the four senior judges of the Supreme Court who held an unprecedented press conference (at his house) to inform the public of their concerns with the functioning of the judiciary.
The letter made public by the judges on that day specifically noted that there was a need for more discipline by judges of the higher judiciary, and raised concerns about the “independence of the High Courts”.
The new letter allegedly sent by him to the CJI elaborates much more on the risks posed by the Executive to the independence of the Judiciary, quoting US Founding Father James Madison to say that “the accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny”.
The judge goes on to note (allegedly) that it is important for the Judiciary to stand up to the government, and not just accept their instructions lying down.
Let us also not forget that the bonhomie between the Judiciary and the Government in any State sounds the death knell to Democracy. We both are mutual watchdogs, so to say, not mutual admirers, much less constitutional cohorts.Justice Chelameswar
As a result, the letter goes on to recommend a sitting of the Full Court on the judicial side to consider the matter. A sitting of the Full Court is when all the judges of the Supreme Court sit to make a decision together. This would mean a sitting of 24 judges, the current strength of the apex court. Normally the SC judges sit in benches of two or three, and only sit in benches of five or more for significant constitutional matters.
A sitting of the Full Court would be unprecedented, but in Justice Chelameswar’s alleged view, it is necessary “if this institution is to be any more relevant in the scheme of the Constitution”.
The letter includes many clever turns of phrase and sardonic comments, mostly about the actions of Justice Maheshwari, but one of the most interesting ones appears to be in the final paragraph. Noting that there is precedent from the First Judges Case in 1981 for such issues to be considered by the Supreme Court on the basis of a letter, it pointedly refers to CJI Dipak Misra as the “Master of the Roster”.
This seems to be a reference to the events of November 2017, when CJI Misra overturned an order passed by a bench headed by Justice Chelameswar. In doing so, the CJI had asserted his power as “Master of the Roster”, holding that Justices Chelameswar and Nazeer had not had the authority to refer two petitions about the medical bribery cases to a Constitution Bench.
To reiterate, The Quint has not been able to verify the authenticity of the letter. You can read the full text of it below:
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