Top SC judges curiously kept off constitutional issues: Justice AP Shah

New Delhi: Stating that “seniority is not the sole criterion, but seniority does matter” while allocating cases to judges, former Chief Justice of Delhi High Court AP Shah has said it is “strange” that four of the top five judges of the Supreme Court, other than the Chief Justice of India (CJI) – Justice Dipak Misra, have been “curiously kept out of all constitutional matters”.
Justice Shah was speaking in the context of CJI Justice Dipak Misra making public the assignment of cases in the Supreme Court for the first time after he was publicly criticised by four judges (Justices Jasti Chelameswar, Ranjan Gogoi, MB Lokur and Kurian Joseph) who are seniormost after Justice Misra.
At a first-of-its-kind press conference held on January 12, the four senior Supreme Court justices had voiced their criticism of how major cases were assigned by the Chief Justice.
“In the roster made public, we see that all four judges who made this public declaration are kept out of all important matters, be it the Ayodhya case, the Aadhaar matter or the land acquisition row. While it is true that seniority is not the sole criterion, but seniority does matter,” said Justice Shah, delivering the BG Verghese Memorial Lecture on the topic “Chief Justice: First Among Equals” in New Delhi.
According to the roster that was made public, the Chief Justice will hear all Public Interest Litigations and cases related to elections, criminal cases, social justice and appointment of constitutional functionaries.
Justice Shah said, “In the present scenario, in the roster made public, we see that all four judges who made this public declaration are kept out of all important matters, be it the Ayodhya case, the Aadhaar matter, or the land acquisition row. While it is true that seniority is not the sole criterion, but seniority does matter.”
“The fact that all four of the top five judges of the Supreme Court, other than the Chief Justice, have been curiously kept out of all constitutional matters, is surely strange and something to be questioned,” said Justice Shah.
About the press conference by the four senior Supreme Court judges, Justice Shah further said, “I believe that the four senior judges of Supreme Court felt so troubled by the goings on in the judiciary and the Supreme Court in particular over the past few months that they felt driven to go public, for otherwise, they would be in transgression of their constitutional duties. In my mind there was no doubt as to the intentions behind the press conference. All four of the judges risked something or the other in being a part of this public conference.”
Justice Shah called for judicial reforms, asking why the Right to Information Act has not applied to the judiciary.
“For many decades, the judiciary has hidden behind a mask of constitutionalism, defending its silence as an intrinsic feature of its institutional integrity and role as a constitutional authority. But such a display of silence and integrity comes up short when it is at the cost of the rule of law, and principles of transparency and accountability,” said Justice Shah.
Talking about the need of reform in judicial system, Justice Shah said, “I believe the Indian judiciary has much to learn from many places – from other courts of the world, or even from within the Indian judicial system itself. Whether it is developing a strong culture of trust and consultation like the English, or building a clear, transparent, seniority- and rule-based system of allocation like the Europeans, or avoiding the ad hoc-ism of Russia, we have a lot to learn and adopt and evolve for ourselves.”