If I Were The Chief Justice Of India...

Tomes have been written in double quick time on the ‘extraordinary event’ on live television, of four of the senior-most judges comprising the collegium, railing against the Chief Justice of India for his conduct in ‘arrogating’ to himself the power as the Master of Roster, and possibly kowtowing to the ruling dispensation by allowing the appointment process of judges to linger.

The appearance of the group of four has been variously christened as ‘unfortunate’, ‘uncalled for’, ‘setting a bad precedent’ and so on. None has adverted to what the Chief Justice could have to say in response.

Here is my take on Chief Justice Dipak Misra’s response, in the most dignified yet affirmative way, asserting his status as captain of the Indian judicial family, owing his allegiance only to law, Constitution and his conscience.

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Dear Brother Judges,

It is with equal or more anguish and concern for institutional integrity and judicial discipline associated with high constitutional office each of us is holding, and required to be true to the oaths we have taken, in particular, in the position of Chief Justice, I ‘happen’ to hold, that I am sending this reply.

However, in line with the decency and decorum with the office I hold, I refrain from hogging media attention, and instead communicating it to the four of you in private and confidential. But, I make it clear that the four of you together or individually are free to make it public, if you so deem it fit. For I have nothing to hide.

Try as I might with my limited faculties, I am unable to identify the ‘judicial decisions’ impacting the justice delivery system and impacting the administrative functioning of my office, in any adverse manner. Feel free to illustrate, if you so desire, your ‘highlights’ with instances, for men of law, you would appreciate that proof or evidence is the foundational precept for any imputation.

Be that as it may, I am singularly grateful to you for the small mercies you have chosen, in flagging off that while the Chief Justice was undeniably ‘First among Equals’ - he was the Master of Roster ‘with privilege to determine the roster”. Having been Chief Justice of more than one High Court, before I assumed this office, please do grant me the little bit of experience in the office and in the handling of the roster.

The twin rules you have chosen to zero in on in your letter in the administration of the ‘roster roll’, as senior most judges of this court, you would be well aware of more than one pronouncement affirming the roster control with the Chief. And when the spokesperson judge, among you, alluded to ‘extraordinary event’ you were party to and thanking the media for its huge presence, I was deeply touched by your emotional connect to ‘save democracy’ as you put it. In the Westminster model of democracy we practise, the Prime Minister gets the right, privilege and prerogative to chose his Cabinet companions and such power is akin to the roster control, a Chief Justice is possessed of.

I am truly astounded that I have ‘arrogated’ to myself a power, which you have in your letter conceded was a power, by historical and constitutional construct, all my own . Pray, what power I arrogated to myself I did not have.

And then the most amusing thing is your ‘departure’ reference to ‘unpleasant and undesirable consequences’ and the ‘chaos’, ‘it’ may leave behind: I wonder whether the four of you were confessing to the attributes associated with the drama enacted by you. Sorry to use the expression ‘drama’ for it was not fictional but played out in broad daylight on the live idiot box. It honestly made sad and unfortunate viewing, as it brought down the institution not by a notch or two, but by all the four of you. You sacrificed institutional integrity at the altar of expediency – and I am still wondering what the true motives were. If it was meant to protect the institutional integrity on the moral compass, built over generations by our forefathers and predecessors, I would have gladly joined you in your public performance.

To rebut the charge, as lawyers, we are prone to, I have little difficulty in relying on your generous concession in your letter I, as Chief Justice was decidedly, the Master of the Roster and had the ‘privilege’ to pick ‘matters, ’composition’, and strength of the Benches. The complete give away in your letter, when it came to the brass tacks, was your touching reluctance not to divulge the ‘details’ to ‘avoid embarrassing the institution’ – when the whole spectacle the four of you orchestrated in front of the glare of cameras, broadcast to the nation at large, was nothing short of demeaning the institution, we belonged to. As a trained loyalist to the oath I had taken, I for one, cannot imagine, no matter what the cause, if it could propel such senior most sitting judges to cover the institution in ignominy, all in the name of protecting its fair name. Nothing could be more ironical and further from the truth.

As for the Memorandum of Procedure (MOP) issue – you have referred to- your letter bristles with inconsistencies. Yes, this Court had ruled the National Judicial Appointments Commission to be unconstitutional, thus continuing to vest in us the powers of the Collegium. While so, this court generously conceded that to strike a healthy harmony and balance between the institutions, Collegium could evolve a MOP and put it in place, by a consensual process. It is in the fitness of exchanges, there was ‘to-ing and fro-ing’ of the MOP and the 16 March 2017, Collegium approved MOP lies with the central Government. While you have construed the ‘silence’ from the Executive as tacit approval or a fait accompli, you claim that as Chief Justice I may have failed in not finalising the MOP and allowing the process to linger. Sorry, I have been in office only for a few months and it is not given to me to browbeat constitutional powers or from constitutional positions and my endeavour is to create a congenial and amiable environment where constitutional heads reach a consenting MOP. If that is seen as yielding to the Executive, reading your letter between the lines, so be it.

And your reference to R P Luthra vs UOI verdict of two brother judges, makes it even more interesting. After the National Judicial Appointments Commission (NJAC) verdict, there have been many a recommendation by the Collegium and mostly unanimously, unless one of you chose to ‘boycott’, and even the more recent ones, including the latest recommendation to elevate a practising woman lawyer, for the first time, was a unanimous decision. If that be so, it defies logic that the lingering MOP in progress was a cause for anguish and concern. Yes, MOP needs to be done and dusted and in quick time, but our decision to upload the Collegium deliberations and decisions, has ensured that sunlight was the best disinfectant against an opaque process, as we conceded in our NJAC verdict itself.

I am gratified that in the last paragraph of your letter for “Chief Justice is duty bound to rectify the situation and take all remedial measures”. Most welcome solitary sane submission of substance in the otherwise avoidable letter written more in anger than anguish, if I may so, with utmost respect. Most welcome. The doors of the Collegium have always been open and exchanges are meant to be principled, even if heated and differences of opinion expressed but respected, and ultimately decision reached by consensus, almost all of the time.

In fine, I have read the letter patiently. Read it again and again, for learning is a continuing process and the higher you go, the more humble you need to be. Let me say with all the humility at my command, and I have a lot to be humble about, I am aware, that it is not given to me in personal or professional life to ride rough shod, based on my occupying the ‘leadership’ position. It is but an office of authority meant to be not only exercised with honesty, discipline, diligence but also with conviction. If per chance I may have been seen to be ‘arrogating’ to myself a power which I did not have, I would be glad to concede in contrition.

But neither your press conference nor the letter have convinced me that it was the ‘institution’ in your heart, mind and soul when you embarked on this unfortunate and avoidable adventure. I may have been far wiser if the so called differences were sorted in private as gentlemen do, rather than belittle the one institution we owe for our very existence as a live and throbbing democracy and sworn to by us in our oaths to uphold the constitutional principles, the very soul of our nation.

While I cannot urge you to withdraw the letter or the deflecting imputations, I would be grateful, if you search your conscience and do so. But from my side, I carry no hard feelings from the bad odour and taste that has been left behind by your public act. This too shall pass. But hopefully the institution is too strong and important to be trashed by us minions and all of us together can fulfil our constitutional obligations as well as we can or been performing, either in the Collegium or in the Court or in the administrative sphere, till date.

My conscience is clear and you having conceded my status to sit over the roster power and the MOP also now in the lap of the Executive, I owe no apology to anyone. I promise my fellow countrymen that I shall continue to discharge my obligations to the best of my ability, conscientiously with no dishonest intent or ill will or malice, and that to me would suffice to conclude this response.

Jai Hind.

Sd. Dipak Misra

(Who happens to be Chief Justice of India)