Need to correct the system, not impeach the chief justice, says Justice Chelameswar

Justice Jasti Chelameswar, the most senior judge in the Supreme Court after Chief Justice of India Dipak Misra, on Saturday, said seeking an impeachment of the chief justice, he said it would not solve the problems in the judiciary. “I do not know why we are obsessed with impeachment,” he said. “We need to correct the system.” Both the Congress and the Communist Party of India (Marxist) had said that they were considering impeachment proceedings against Misra. But senior Congress leader Mallikarjun Kharge said on Thursday that the party was no longer considering it.

Chelameswar was talking to journalist Karan Thapar at an event organised by the Harvard Club of India in New Delhi, titled “Role of judiciary in democracy”. He was among the four senior judges of the top court who had, in a press conference in January, raised questions, among other things, about Misra’s role as the “master of roster” and asked why the chief justice had bypassed established traditions of the court in assigning cases to benches.

He warned that the chief justice’s power to allocate cases to benches must be exercised with responsibility, Bar and Bench reported. If cases are allotted to preferential benches, it would erode the public’s confidence in the institution, he said.

When Thapar asked if the cases being allocated to preferential benches would imply that a particular judge was pliable, the judge disagreed. “I won’t say pliable,” he said. “It creates doubts about the integrity of the institution.”

The judges had confirmed during the press conference in January that they had also taken up with the Chief Justice the case of CBI judge Brijgopal Harkishan Loya. Loya was presiding over the case relating to the fake encounter of Sohrabuddin Sheikh, in which Bharatiya Janata Party president Amit Shah was an accused. Loya died in December 2014. In November 2017, the Caravan magazine brought out startling revelations that raised doubts on whether Loya’s death was natural. Since then, there have been demands for an independent probe into the death.

On Saturday, Chelameswar said that he had never questioned the listing of the Judge BH Loya case. “But what is the basis on which sensitive cases are being allocated?” he asked.

The judge said that the objective of the roster system was to ensure the efficiency of hearing and disposing of cases. However, it took more than a year to deliver the judgment in the disproportionate assets case involving late Tamil Nadu Chief Minister J Jayalalithaa, he observed.

Medical Council of India case

Chelameswar heard a petition on November 9, 2017, that was moved by advocate Kamini Jaiswal, who sought a court-monitored investigation of the alleged Medical Council of India bribery scam. He had referred the case to a five-judge Constitution bench, but the order was nullified the next day by a new five-judge bench that CJI Misra had formed.

“I still cant understand what was the problem with the order passed by [the] Bench presided by myself,” Chelameswar told Thapar on Saturday. “It is practice to mention matters before second-most judge when CJI is sitting in Constitution Bench.”

He said he was acting within his power to by constituting the Constitution Bench of five senior-most judges.

Chelameswar has expressed concerns to the chief justice on other matters too. On March 21, he wrote to Misra expressing concern about the government’s interference in judicial functioning. He asked why Karnataka High Court Chief Justice Dinesh Maheshwari had decided to investigate a judge the Supreme Court Collegium had recommended twice for promotion to the High Court on a complaint directly forwarded by the Union law ministry. The Centre, he argued, had no business writing directly to the High Court’s chief justice, neither did the chief justice have any authority to launch an inquiry. Chelameswar suggested in his letter, and sought a full sitting of the apex court to discuss it.