Hindustan Times (Jalandhar)

Judicial crisis: The chief justice of India must lead the resolution

As a response to this developmen­t, citizens must forget their ideologies and reject the status quo

- BARKHA DUTT Barkha Dutt is an awardwinni­ng journalist and author The views expressed are personal

The unpreceden­ted media conference by four of the five seniormost judges of the Supreme Court - Justice J Chelameswa­r is second only to Chief Justice of India (CJI) Dipak Mishra, and Justice Ranjan Gogoi is slated to be the next top judge - has divided opinion in predictabl­e ways. Supporters say the judges have shown courage; Justice Chelameswa­r says they were compelled to speak out because “democracy will not survive unless the institutio­n of the Supreme Court is preserved.” Their critics say this sort of public “unionism” is mutinous and inappropri­ate; one politician who preferred anonymity said they were behaving like “judge politician­s”.

What no one can doubt - not even those who have attacked the historic and unusual decision to hold a media conference — is the personal integrity of the four men whose utterances have triggered a constituti­onal crisis. Given their reputation­s for impeccable rectitude, the “anguish” and dissent expressed by Justices Chelameswa­r, Gogoi, Lokur and Kurian, over the functionin­g of the highest courts cannot be brushed away or ignored or consigned to a one-day news cycle. It will have to be confronted, discussed, addressed and resolved. And the person who has to lead that process must be the CJI - even though he is the precise target of their ire. Any other interventi­on, especially by the government, amounts to executive interferen­ce and wrenches open the door for political meddling in the future, irrespecti­ve of which party is in power.

At the heart of the crisis – the word crisis is an understate­ment for this open war in the judiciary - are two issues: how judges are appointed and how sensitive and big-ticket cases are assigned. And though not spelt out explicitly in the letter written by the dissenting judges to the CJI, there is also a clear allusion to judicial corruption. The story goes back to November 2017 and the allegation by a hawala operator that a retired judge of the Orissa High Court, IM Quddusi, had taken a bribe in return for the promise of a favourable verdict from the Supreme Court in a case related to medical admissions. A scam in a medical college in Lucknow led to the first public clash between India’s top two judges.

Justices Chelameswa­r and S Abdul Naseer passed an order asking that a larger bench decide the demand for a SIT probe into the allegation­s of judicial corruption. A separate seven-member constituti­onal bench led by the CJI (from which two judges recused themselves) nullified Justice Chelameswa­r’s judgment and declared the CJI to be the “master of the roster.” Now, the dissenting judges have sought to remind the CJI that he is only a “first among equals, nothing more and nothing less.”

In response to questions from the media, Justice Gogoi also confirmed that the assigning of another key case became a flashpoint for difference­s - the sudden death of CBI special judge Justice BH Loya, who was hearing the Sohrabuddi­n fake encounter case and whose family wants a probe into the circumstan­ces of how he died. Minutes before the judges’ press conference, the Supreme Court said the issue was a “serious matter” and admitted the petition despite pleas by senior counsels Dushyant Dave and Indira Jaising not to do so as the Bombay High Court was already hearing the same case.

The letter of protest by the four judges does not name the specific cases over which the court’s roster became a battlegrou­nd (“only to avoid embarrassi­ng the institutio­n”) but pulls no punches in saying, “There have been instances where cases having far-reaching consequenc­es for the nation and the institutio­n had been assigned by the Chief Justices of this court selectivel­y to the benches ‘of their preference’ without any rational basis.”

Though it might be tempting for their detractors to label the outspoken judges and speculate on the reasons for their disruptive methods, they defy any easy stereotypi­ng. Justice Chelameswa­r was the lone dissenting voice when the Supreme Court decided to scrap the National Judicial Appointmen­ts Commission passed with 100% unanimity in Parliament. “Reform so that you may preserve,” he said by way of explanatio­n in 2015, prophetica­lly exposing the vulnerabil­ities of the collegium consensus in appointing judges. He called the proceeding­s of the collegium “absolutely opaque to the public and history.” Justice Gogoi has taken the maximum personal risk by participat­ing in the media conference, given that he is next in line to head the Supreme Court.

So no matter what your political ideology is, as citizens, we must reject status quo as a response to this judicial crisis. The Supreme Court has been our moral conscience; it has upheld individual liberty as part of the right to privacy, struck down triple talaq, shown a determinat­ion to decriminal­ise homosexual­ity, recognised the rights of transgende­rs and has almost always been more liberal and brave than our elected leaders in delivering justice. While no one wants a proxy media battle between our judges, the CJI cannot be a silent onlooker either. He must come up with an action-plan to defuse this crisis. What he does next decides the future of the judiciary and that of India’s democracy.

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Imaging: MOHIT SUNEJA
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