Last week India witnessed, for the first time in its history, the spectacle of an open and public revolt in its much respected Supreme Court. However, by the end of the week, a major and unsettling denouement seemed have been averted with all sides saying that discussions will be held to sort out matters internally and appealing to outsiders not to interfere or make political capital out of the conflict, writes P.K.Balachandran in Daily Mirror.
Even the four judges who had raised the banner of revolt against Chief Justice Dipak Misra, expressed the hope that a reasonable way out will be found for the sake of the credibility of the institution in the eyes of the public.
Interventions by the all India bar and former judges of the Supreme Court and High Courts, and the studied silence of the government and the opposition parties have helped place the responsibility for resolving the issues at stake at the door of the Chief Justice and his judges so that they do not become became part of partisan politics and worsen an already bad situation.
However, the revolt gives an opportunity to the judiciary and the government to take a deep and hard look at the issues plaguing the Indian judiciary, including the Supreme Court. The issues relate both to internal management of the judiciart and its relations with the executive and political arms of the State.
Political inclinations and caste, communal and regional considerations have shaped appointments in the judiciary. Governments and members of the judiciary have both used each other to promote their political and individual interests.
When Indira Gandhi was Prime Minister and battling the powerful right wing old order called the “Syndicate”, she had introduced the concept of the “Committed Judiciary” to pack courts with judges of her political, economic and social persuasion.
While this led to the legalization of her radical social welfare and equalitarian policies, it also destroyed the equally desirable concept of a neutral and independent judiciary. It harmed the theory of the Separation of Powers between the Judiciary and the Executive.
From then on, selection of judges became arbitrary. In 2013, the parliament passed a law creating a joint government-judiciary structure to select judges, but this gave equal power to the Judiciary and the Executive. Therefore the body was not autonomous. At any rate, this law was struck down in 2014 as being “unconstitutional” and the judiciary reverted to the collegial system. But this too has not been working satisfactorily.
There have been charges of corruption against judges and a judge had even been sentenced for it. Political, communal and caste considerations have continued to vitiate appointments.
The extraordinary powers given to the Chief Justice have also come under criticism as these could be misused as the author of the Indian Constitution Dr.B.R.Ambedkar had warned in the Constituent Assembly in the late 1940s. He had said that the character of a Chief Justice could be as flawed as that of a common man and that there should be checks and balances against arbitrariness at the highest levels of the judiciary.
Misuse of Rules
What is disturbing is that while rules and norms have been established, there have been instances when judges have misused them. Rules and norms may appear to have been observed, but a closer look would reveal a violation of the spirit of these regulations.
It is the issue of subversion of rules by Chief Justice Dipak Misra which was brought to the fore publicly when four of the 25 judges of the Supreme Court revolted and held the first ever press conference by judges to air an issue troubling them.
Justice J.Chelameswar, Ranjan Gogoi, M.B.Lokur and Kurien Joseph called an urgent press conference on Friday and also issued a statement in which the main issue was the observance of norms regarding the assignment of cases to benches to hear important cases.
The disgruntled judges did not dispute the primacy of the Chief Justice in deciding which should hear a case, but they expected Chief Justices to be reasonable, unbiased and rational in deciding the bench to which a case should go. The judges suspected a political rat in Dipak Misra’s assigning judges to hear politically critical cases.
The statement issued by the protesting judges said: “ There have been instances where cases having far reaching consequences for the nation and the institution had been assigned by the Chief Justices of the court selectively to the benches of their preference without any rational basis for such an assignment. This must be guarded against at all costs.”
Justice Loya’s Death
The statement did not allude to any particular case or cases, but the judges let it be known that they had in mind the case relating to the mysterious death in 2014 of Justice B.H.Loya of the Central Bureau of Investigation Special Court while he was hearing a case in which the Bharatiya Janata Party (BJP) President, Amit Shah, was an accused.
The case had to do with the extra-judicial killing of gangster Sohrabuddin. Suspicions were aroused and agitations were staged, when Shah was discharged in the case after the death of Justice Loya.
Even as a case relating to the death was being heard at the Bombay High Court, Chief Justice Dipak Misra admitted a Public Interest Litigation seeking a fresh probe into Loya’s death and assigned the case to a bench under Justice Arun Mishra, who is 10 th. In the pecking order of the court’s 25 judges.
The four protesting judges said that the nationally important Justice Loya death case should have been assigned to a bench of more senior judges.
Additionally, the Supreme Court led by Chief Justice Misra entertained a Public Interest Litigation (PIL) relating to the murder of Justice Loya even though the Bombay High Court was already hearing the case. The Chief Justice asked the Bombay High Court to send all the documents relating to the case.
According to The Citizen the bench under Arun Mishra has two judges who are very junior. Justice Ashok Bhushan had risen very fast and become a Supreme Court judge as recently as May 2016. Justice Abdul Nazeer is the only Supreme Court who has never been a Chief Justice of a State. He became a Supreme Court judge only in 2017.
The rebelling judges suspected an ulterior political motive in Dipak Misra’s admitting a petition to hear the Justice Loya death case even though the Bombay High Court was hearing it.
The Citizen also pointed out that the Supreme Court had also taken up other cases under controversial circumstances. Lawyers Kapil Sibal and Rajiv Dhawan had objected to the court’s taking up the Babri Mosque-Ram temple case before the 2019 parliamentary elections. They feared that the ruling of the court could affect the outcome of the elections, given the sensitivity of the issue.
Sibal pointed out that Bharatiya Janata Party (BJP) leaders Dr.Subramanian Swamy and Yogi Adityanath were anxious to carry out the construction of the Ram temple in place of the demolished Babri Mosque in the holy city of Ayodhya in Uttar Pradesh to please the Hindu majority before the 2019 parliamentary elections. Their plan to use the issue to win votes is being stymied by the fact that the matter is sub-judice.
Sibal argued that since the case involved critical issues relating to Indian democracy and the fundamental character of the Indian State (whether it is secular or biased towards Hindu beliefs) it should not be heard hurriedly. He pointed out that the case involved studying 19,000 documents which will require time.
It is not clear whether the revolt of the four judges will bear fruit or fizzle out for lack of support in the government and the polity. One only hopes that the crisis will make Indian politicians and the Indian intelligentsia look critically at the judiciary from the top to the bottom and come up with cures for its ills.
(The featured image at the top shows the rebellious judges – Kurien Joseph, Justice J.Chelameswar, Ranjan Gogoi, M.B.Lokur: Photo: Hindustan Times)