At least 44 staff members of the Supreme Court of India tested positive for Covid-19 on Saturday prompting the court to take extreme measures. Judges will now conduct proceedings remotely as they work from home.

Meanwhile courtrooms are being sanitised. Various benches sat 30 to 60 minutes later than the scheduled time today. All proceedings are now being conducted via video conferencing.

Justice DY Chandrachud told NDTV, “Judicial work will not be affected by the pandemic.” Referring to the 1,600 video-conferencing links available with the SC, he said, “The Supreme Court has adequate infrastructure for judicial work,” adding, “Sixteen benches are functioning.”

India’s latest wave of Covid-19 has seen over 1,00,000 fresh cases being reported each day. Crematoria in many states are getting overwhelmed, while there are reports of shortfalls of vaccines in many states, it has now emerged that a few states have managed to procure, even allegedly hoard life-saving medication, with the patronage of powerful political parties.

Related:

Covid-19: Gujarat HC says state heading towards a “health emergency”, Gov’t stays silent
Don’t compare Kumbh Mela to Markaz event: Uttarakhand CM Tirath Singh Rawat

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A version of this article was published in the Indian Express on July 18, 2015. It makes for crucial reading today.
                                                                                      
It is barely eight days since the 40^th anniversary of the Emergency was commemorated. A dark period in independent India’s history, the formal declaration of Emergency was preceded by a period when the government of the day, bit by bit, in a sinister manner, eroded the independence of India’s Judiciary. The separation of powers on which the basic structure of the Indian Constitution squarely rests, is firm in the fundamental formation of both Judicial Autonomy and Independence. It is this judicial integrity, autonomy and independence that are under direct assault and severe threat today.
 
The tone and tenor employed by the current Attorney General, when he made his arguments in support of the National Judicial Appointment Commission (NJAC) are not only unbefitting of the post, but reflect the downgrading of the position of Attorney General that has been reduced, by successive governments, from a Constitutional Authority qualified to advise the Court on the fundamentals of the Indian Constitution and law (even if this, at time, militates against the act of a particular Government), to the reductionist role of a defence counsel, defending the policies and individuals within the government in power at the relevant time.
 
So, among other things, Rohatgi said, pushing for the NJAC as it stands today, that the Parliament is supreme in our system and even the Supreme Court needs to bow before it.
 
How inherently wrong this interpretation is. The appointment of Judges, their elevation to the highest position, as chief justices of high Courts and the ultimate one of the Chief Justice of India, their transfer among high courts of the land, all these moves manifest the inherent powers which must be both autonomous and independent. Appointments and transfers cannot be at the behest of any government though in a democracy, the government and the opposition must play a significant role. That the present system requires course correction is true, that the appointments of judges needs to open itself to scrutiny and tests of representation is also valid, but the new path charted must answer to tests of transparency and accountability, not further obfuscate them.
 
Once before, between 1973 and the actual declaration of Emergency on June 25, 1975, we experienced the brute overreach of executive power, manifest not in just the taking of political prisoners –which included the unholy mix of Communists and Jan Sanghis – but in the actual move to manipulate the Supreme Court, and through it India’s higher judiciary. India saw then the erosion of institutional autonomy that was resorted to, brazenly, by the government of the day.
 
On 25 April of that year, the government had, in a shocking move, superseded in appointment to the position of the chief justice of India, three senior-most judges, Justices Shelat, Hegde and Grover and appointed Justice Ray. The reaction from the Bar was swift and instantaneous. Bar Associations across the length and breadth of the country, Bombay, Kolkatta, Madras, Chandigarh, Bihar, Allahabad, the outrage was unanimous and expression of it courageous. The chairman of the then Bar Council of India, Ram Jethmalani in an official statement declared it as “the most shocking display of executive arrogance” and six of the country’s eminent jurists, MC Setalvad, MC Chagla, JC Shah, KT Desai, VM Tarkunde and NA Palkhivala issued a strong statement the very next day condemning the Government’s move as “a manifest attempt to undermine the Court’s independence.”  Through this one act, the prime minister made her intentions of having a ‘committed’ judiciary clear, committed not to law and the Constitution but to the whims of the Government.
 
Over the last two months or so, the country has been witness to the brash and brazen face off between the present regime in power in Delhi and India’s Supreme Court of India. Within the next few weeks, will come a decision from the Supreme Court that will, whichever way it goes, have a lasting impact. There has been little substance and even less grace in the attorney general’s arguments that have bordered on the rude and arrogant. “Parliament is supreme” he has bellowed and the Court must bow to its supremacy, is one such. That the Supreme Court of India, and many of our High Courts face a serious issue of credibility, a reality based on both perception and reality, gives this face off an even more sinister turn. The regime is riding high on this perception, never mind the fact that it, itself represents a worldview that has in past and present conduct shown scant respect for the protection of our fundamental rights or the Constitution.
 
Given this complex scenario, it becomes necessary to look close and hard at the present attempt (even more crass than in the 1970s) by the executive to browbeat our judiciary. We need to step back in real memory to the May of 1973, when a historic protest meeting was held in Bombay. Among the galaxy of speakers that addressed the meeting and included M. Hidayatullah, JC Shah, CK Daphtary, HV Iengar, K Subha Rao and of course, NA Palkhivala, the speeches, pithy and substantive, voiced strong dissent against the then Central government’s brazen move. My grandfather, MC Setalvad, India’s first Attorney General was among the speakers. I was eleven at the time.
 
The speeches were inspiring and erudite. [They were reproduced later into a booklet, A Judiciary Made to Measure] published by NA Palkhivala.]  Setalvad, who had been both India’s first Attorney General and the chairperson of the first Law Commission and Palkhivala had both reacted sharply to senior lawyer and union minister M. Kumaramangalam’s speech in Parliament, defending the government’s action. There is a chilling similarity between what was said then and what Rohatgi is saying today.
 
Kumaramangalam, justifying the central government’s actions said that since Parliament was supreme in the Indian scheme of things, it was but natural that when it comes to the appointment of the Chief Justice, the Government of the day will select a person who shall uphold the Government’s view of the Constitution!  Setalvad, critiqued this interpretation as partisan and misguided since this meant that the Government was bound to uphold not the philosophy in fact underlying the Constitution but a particular Government (and by that logic, a particular party’s) understanding of that philosophy. 
 
To further quote, Setalvad, he said, “We all know that when a judge takes office, including the Chief Justice, he takes on oath of office and his oath pledges him, among other things, to decide cases in accordance with the Constitution. Now if he looks at the Constitution and feels that its interpretation, is according to him, in a particular direction or it has a particular meaning, he has not to give that direction or meaning to the words of the Constitution. He has to apply to the words of the Constitution, contrary to his own understanding, the philosophy of the Government. Let us analyse what the philosophy of the Government would, in ordinary practice, mean. The philosophy of the Government would mean the philosophy of the ruling party. Today it may be the philosophy of the ruling Congress, tomorrow it may be the philosophy of another party-it may be the Jan Sangh, it may be the Swatantra. Therefore, the judge or the Chief Justice has to keep track, when he is sitting on the Bench, in interpreting the Constitution, not of the language and the words of the Constitution, but of the philosophy of the ruling party which may change from time to time….”
 
What could be the consequences of such a move? Setalvad, “So, you have not to have an impartial Chief Justice but a judge or a Chief Justice who will bear in mind what, in effect, the Government thinks the Constitution means…….And the mischief does not end there. It goes further. Though the observations which were made in the Lok Sabha by Mr. Kumaramangalam refer to the office of the Chief Justice, they would apply all the way down to all judicial appointments. Every judge of the Supreme Court when making a decision in which Government policy is in question will have to think of his prospects of being appointed the Chief Justice and bear in mind what the philosophy of the Government of the day is, if he wants to be in good favour with the Government of the day is, if he wants to be in good favour with the Government in order to earn his appointment as the Chief Justice. Nay, it will travel down further. Take the judges of the High Court. Naturally and rightly they all aspire, as soon as they grow senior, to be selected for the highest Court in the land. But they must bear in mind that in order to be so selected they must also interpret the Constitution, not as they think it requires to be interpreted, but according to the philosophy of the Government in power at the centre for the time being.”As chair of India’s first law commission, MC Setalvad had with others also recommended that there should a severe restriction on post retirement postings for Judges of the higher courts.
 
Succinctly arguing against the ‘pre eminence of Parliament over the Court argument’, NA Palkhiwala, India’s pre-eminent jurist had said at the same historic meeting held in Bombay that,  “….Mr. Kumaramangalam has argued that the Government wants a Chief Justice who is able to recognize that Parliament is sovereign; that Parliament’s powers in relation to the future are sovereign powers….This ability required of the Chief Justice makes a mockery of the Constitution. Parliament has no unfettered sovereignty. The Constitution is supreme over Parliament; and not Parliament over the Constitution. The fundamental rights which are the basic human freedoms are fetters on Parliament’s powers. The Supreme Court has itself held by a majority in the great Constitutional case decided on April 24, 1973, that Parliament has no power to amend the Constitution in such a way as to alter the basic structure or framework of the Constitution; and the Government’s emphatic arguments to the contrary were expressly rejected. Mr. Kumaramangalam’s statement amounts to a refusal to accept the law as laid down by the Supreme Court.”
 
When we look back at those dark, dark days when authoritarian rule, the atrocities at Turkman Gate et al, the silver lining in the cloud were and are the audible protests from across the Bar. Today, when we await a verdict on which the future of India could hinge, a studied silence, by and large, prevails. Faced with a regime defined by its credo of vendetta-driven governance, the India that was built on the wisdom of men and women who had through sweat, principles and toil fought against a colonial oppressor, today needs to give voice to a spirited resistance that reaffirms our fundamentals.

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Four of the five senior most judges in the Supreme Court –five of whom constitutes its Collegium—have in an unprecedented move-challenged the CJI for alleged nepotism in assigning cases to pre-chosen benches in a press conference in New Delhi 

Four of the five senior most judges of the Supreme Court – Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph – in a letter to Chief Justice of India Dipak Misra expressed concern on certain judicial orders passed by the top court which has “adversely affected the overall functioning of the justice delivery system.”

They said they sent the CJI the letter but didn’t hear back, and then they met him again this morning, to no avail.”We collectively tried to persuade the CJI that certain things aren’t in order so take remedial measures but unfortunately our efforts failed,” said Justice Chelameswar.The four judges said many “undesirable” things have occurred in the judiciary lately.”The administration of the SC is not in order and many things which are less than desirable have happened in last few months,” said Justice Chelameswar.

A few minutes before the press conference, the SC said, separately, that the “mysterious death of Justice BH Loya is a serious issue”. They asked the Maharashtra government to present all documents to do with his death to the court on Monday. Justice Loya was hearing the Sohrabuddin fake encounter case and died under mysterious circumstances.

The judges also had a grievance that the PIL seeking a probe into Justice Loya’s death was assigned to court no. 10 and not to any of the first four benches other than CJI-led bench.

• The judges have—months after the issue has been festering– literally blown the lid off a growing rift with Chief Justice Dipak Misra. The explosive statements were made at a press conference “The four of us are convinced that unless this institution is preserved and it maintains its equanimity, democracy will not survive in this country,” Justice J Chelameswar said on the lawns of his residence. He is the second most-senior judge of the Supreme Court.
• Being pushed to the wall, the four senior most judges after the CJI, said that their concerns include cases of far-reaching consequences” being allocated without transparency. They made available a letter written by them to the Chief Justice two months ago, alleging “selective assignment of cases to preferred judges” and that “sensitive cases were being allotted to junior judges”.
• Justices J Chelameswar, Ranjan Gogoi, Madan Lokur and Kurien Joseph said repeated attempts to alert the Chief Justice to their concerns – including a meeting with him this morning – had failed to make any progress which is why they decided to voice their complaints publicly.
• When asked if their complaints include the case of the death of a CBI judge, BH Loya, “yes” said Justice Gogoi. This was however only the last of a string of such instances.
• The Chief Justice in December was backed by four other top judges in asserting that he is the “master of the roster” and is alone authorized to allocate cases. The four judges who met the press today said that the rules make him “only the first amongst the equals, nothing more or nothing less.”
• The public confrontation today comes amid growing calls for the judiciary to show more transparency including in how judges are selected for promotion and assignment to the High Courts and the Supreme Court.
• Sources in the government said that the explosive trading of charges today is being seen as “an internal matter of the judiciary” on the administration of the Supreme Court and the government sees no reason for it to intervene.
• In December, the Chief Justice was accused by some lawyers of inappropriately involving himself in hearing a case that alleges judicial corruption even though he was has been involved in earlier hearings of a linked matter – about whether bribes were paid by a medical college to reverse its blacklisting by the government.
• While the immediate prompt coincided with the Loya case, the Ayodhya dispute, the Aadhar case are two major instances where ‘handpicked benches’ have been  were chosen. In the Ayodhya Babri Masjid Demolition case,  CJP Dipak Misra, Ashok Bhusan, S Abdul Nazeer are slated to the hear the matter on February 8.  The Aadhar matter, crucial to privacy and national security is to be placed before a five judge bench from January 17.
• Background of the Loya case: Judge Loya was hearing a case that accused BJP president Amit Shah of murder when he died in Nagpur in December 2014. His family has alleged that his death was unnatural and came after he was offered 100 crores as a bribe to rule in favour of the BJP leader. Medical records show Judge Loya died of a cardiac arrest. Within weeks of his death, Amit Shah was acquitted.
• The Supreme Court has been asked to order an independent inquiry into Jude Loya’s death. This morning, the case was assigned to a bench that does not include the four senior judges who held today’s press conference.

 
 
Full letter to the Chief Justice of India from the Supreme Court judges:

Dear Chief Justice,
It is with great anguish and concern that we have thought it proper to address this letter to you so as to highlight certain judicial orders passed by this court which has adversely affected the overall functioning of the justice delivery system and the independence of the High Courts besides impacting the administrative functioning of the office of the Honourable Chief Justice of India.

From the date of establishment of three chartered High Courts of Calcutta, Bombay and Madras, certain traditions and conventions in the judicial administration have been well established. The traditions were embraced by this court which came into existence almost a century after the above mentioned chartered High Courts. These traditions have their roots in the anglo-saxion jurisprudence and practice.

Once of the well settled principles is that the Chief Justice is the master of the roster with a privilege to determine the roster, necessity in multi-numbered courts for an orderly transactions of business and appropriate arrangements with respect to matter with which member/Bench of this court (as the case may be) is required to deal with which case or class of cases is to be made. The convention of recognising the privilege of the Chief Justice to form the roster and assign cases to different members/benches of the court is a convention devised for a disciplined and efficient transaction of business of the court but no a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues. It is too well settled in the jurisprudence of this country that the Chief Justice is only the first amongst the equals — nothing more or nothing less. In the matter of the determination of the roster there are well settled and time honoured conventions guiding the Chief Justice, be the conventions dealing with the strength of the Bench which is required to deal with a particular case or the composition thereof.

A necessary corollary to the above-mentioned principle is the member of any multi-numbered judicial body including this court would not arrogate to themselves the authority to deal with and pronounce upon matter which ought to be heard by appropriate benches, both composition wise and strength wise with due regard to the roster fixed.

Any departure from the above two rules would not only lead to unpleasant and undesirable consequences of creating doubt in the body politic about the integrity of the institution. Not to talk about the chaos that would result from such departure.
We are sorry to say that off late the twin rules mentioned above have not been strictly adhered to. There have been instances where case has far-reaching consequences for the nation and the institution had been assigned by the Chief Justice of this court selectively to the benches ‘of their presence’ with any rationable basis for such assignment. This must be guarded against at all costs.

We are not mentioning details only to avoid embarrassing the institution but note that such departures have already damaged the image of this institution of some extent.

In the above context, we deem it proper to address you presently with regard the order dated 27th October, 2017, in R B Luthra vs. Union of India to the effect that there should be no further delay in finalising the Memorandum of Procedure in the larger public interest. When the Memorandum of Procedure was a subject matter of a decision of a Constitution Bench of this court in Supreme Court Advocates-on-Record Association and Anr. vs Union of India, [(2016) 5 SCC 1] it is difficult to understand as to how any other bench could have dealt with the matter.

The above apart, subsequent to the decision of the Constitution Bench, detailed discussions were held by collegium of five judges (including yourself) and the Memorandum of Procedure was finalised and sent by then Honourable Chief Justice of India to the Government of India in March 2017. The Government of India has not responded to the communication and in view of this silence, it must be taken that the Memorandum of Procedure as finalised by the collegium has been accepted by the Government of India on the basis of the order of this court in Supreme Court Advocates-on-Record Association (Supra). There was, therefore, no occasion for the bench to make any observation with regard to the finalisation of the Memorandum of Procedure or that issue cannot linger on for an indefinite period.

On 4th July, 2017, a bench of seven judges of this court decided In Re Honourable Shri Justice C S Karnan [(2017) 1 SCC 1]. In that decision (referred to in R P Luthra) two of us observed that there is a need to revisit the process of appointment of judges and to set up a mechanism for corrective measures other than impeachment. No observation was made by any of the seven learned judges with regard to the Memorandum of Procedure.

Any issue with regard to the Memorandum of Procedure should be discussed in the Chief Justices’ conference and by the Full Court. Such a matter of great importance, if at all required to be taken on the judicial side, should be dealt with by none other than a Constitution Bench.
The above development must be viewed with serious concern. The Honourable Chief Justice of India is duty bound to rectify the situation and take appropriate remedial measures after a full discussion with the other members of the collegium and at a later stage, if required, with other Honourable Judges of this court.

Once the issue arising from the order dates 27th October, 2017, in R P Luthra vs Union of India, mentioned above, is adequately addressed by you and if it becomes so necessary, we will apprise you specifically of the other judicial orders passed by this court which would require to be similarly dealt with.

With kind regards,
J. Chelameswar
Ranjan Gogoi
Madam B Lokur
Kurian Joseph

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