Supreme Court judges vs CJI Dipak Misra: The cases behind the controversy

The unprecedented press conference by four judges on Friday exposing a rift within the Supreme Court collegium comes just a day after it recommended fresh appointments of judges to the Centre. Justices Jasti Chelameswar, Ranjan Gogoi, MB Lokur and Kurian Joseph criticised an alleged lack of transparency in the selection of judges to try cases, calling it a cause for “serious concern”. The triggers for the unprecedented step lie in key cases in the recent past. (Full coverage)

Here is a recap of the flashpoints:

Loya PIL

The immediate flashpoint, according to one of the dissenting judges, was over who should hear pleas regarding the death of special CBI judge BH Loya. “This morning we went to the CJI with a specific request but unfortunately we were denied,” said Justice Jasti Chelameswar, without specifying the request. “So we were left with no choice but to take it to the nation,” he said. Asked whether the issue raised with the Chief Justice was about Loya, Justice Gogoi said, “Yes”, according to an ANI report.

Medical college bribery case, November 10, 2017

A five-judge constitution bench headed by Chief Justice of India Dipak Misra in November ruled that it is the prerogative of the Chief Justice to decide which bench should hear a particular case. The bench effectively overturned the order of a two-judge bench comprising Justice Chelameswar and Justice S Abdul Naseer a day earlier, which had ordered the setting up of a bench of top five judges in a matter alleging bribing of judges by medical colleges to obtain favourable orders.

Memorandum of Procedure, October 2017

A petition questioning the delay in finalising the Memorandum of Procedure (MoP) for the appointment of judges to the higher judiciary was dealt by a bench of justices AK Goel and UU Lalit in October last year. The bench had issued a notice to the attorney general on the issue. However, the matter was listed in front of a special bench of three judges headed by the CJI on November 8, which recalled the October 27 order of the two-judge bench. Such a matter, the four judges said in their letter written to the CJI two months ago, should have either been dealt by a constitution bench or taken up at the chief justice’s conference and the full court comprising all judges of the SC. The letter said the development must be viewed with “serious concern”.

In addition, legal experts say the four judges may have also had an issue with the Constitution Bench set up to hear the challenge to Aadhaar and the Rakesh Asthana case.

Rakesh Asthana’s appointment, November 2017

In this case, the appointment of Aasthana as special director of the Central Bureau of Investigation was challenged by activist group Common Cause before the Supreme Court. After a few changes in the bench hearing it, the case was eventually heard by a bench comprising Justice RK Agrawal and Justice AM Sapre, and headed by the former (the 8th most senior judge in the apex court). The bench dismissed the challenge.

Aadhaar case

In the Aadhaar case, a five-judge constitution bench of the Supreme Court led by CJI Misra will from January 17 begin hearing petitions challenging the legality of the 12-digit bio-metric unique identification number.

Besides the CJI, the bench comprises justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan. No senior judge is part of the bench. The second senior-most judge on the bench is Justice Sikri who is sixth in seniority. Besides, the ‘original’ bench on Aadhaar matters was headed by Justice J Chelameswar and it was this bench that had referred the petitions for hearing before a five-judge bench, which wanted that Aadhaar be tested against the right to privacy, a fundamental right. The four senior judges may have also had an issue with this, the experts added.