Locked in battle with the government over the judicial appointments issue, the coming months will be a test of Chief Justice Jagdish Singh Khehar’s leadership
The other day, we were having a cup of coffee. I told Justice Thakur that I had heard a rumour… he’s going to be the Vice President of India. He laughed it off. But why Vice President? Why not the President?” With his signature white moustache, it’s hard to tell when Justice Jagdish Singh Khehar smiles. But on January 3, the man who is as quick to crack jokes on the bench as he is to smack down those who waste his time, was almost certainly smiling. The emerald lawns of the Supreme Court resounded with laughter, as the soon-to-be Chief Justice of India poked fun at the hottest rumour of the day. But the irony of the moment was not lost on many: starting January 4, he faced one of the most daunting terms in recent times.
The coming months will be a testing time for the undersized Khehar court—with just one sister and 22 brother judges, the smallest in the last eight years. The Supreme Court has been living in the fast lane since 2014—constantly at odds with the Narendra Modi-led NDA government. The pace is about to pick up. A bitter battle for control of the Supreme Court, a Constitution-smashing crisis over the National Judicial Appointments Commission (NJAC) Act, deadlock over judicial appointments, alarming vacancies in courts, an avalanche of pending litigation and internal squabbles—that’s the legacy the 44th Chief Justice has inherited for his eight-month-long tenure, until August 2017. Will he end his term with the smile in place?
WHISPERS IN THE CORRIDORS
Inside the secret world of the Supreme Court, whispers swirl and rumours fly. After all, it is arguably the most remote, insulated and secretive institution in the country. The judges sit on high benches and decide the law of the land, far from the public gaze. No record of their discussion is allowed, no one intrudes on their proceedings. They talk when they want to and go into ‘judicial lockjaw’ when it suits them. They are the Supremos, the most powerful people in what some consider the most powerful branch of government.
“Has he, or has he not?” In other words, has the new CJI visited Prime Minister Narendra Modi in secret, which his predecessor Justice T.S. Thakur had refused to do, or not? That’s the latest on the rumour mill, spinning furiously ever since the Supreme Court announced a change of guard. Rumours have always been a fact of life in the court circuit. But after a year marked by constant corrosive bickering and sharp clashes with the government, everyone is reassessing how they should react when the next rumour comes along.
It started in December, when CJI Thakur sent up his recommendation to the President of India, naming his successor: Justice Khehar, the seniormost judge, as per convention. But as silence stretched, speculation started bubbling, about Justice Khehar being superseded by another judge, closer to the government. The rumours did not materialise but, for the first time, the higher judiciary got caught up in a web of politics, with a body of lawyers filing civil writ petitions opposing Justice Khehar’s elevation as CJI. Their claim? He’s too arrogant to be CJI.
In fact, the sharp-witted and often sharp-tongued Justice Khehar, who led the five-judge Constitution bench that struck down the NJAC Act in 2015, is an outspoken advocate of a proactive judiciary. “The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured by keeping it absolutely insulated and independent from the other organs of governance,” he had said in his individual judgment on the NJAC case. On Constitution Day on November 26, 2016, he had famously sparred with Attorney General Mukul Rohatgi at an event, when the top government lawyer said India’s Constitution placed a ‘lakshmanrekha’ on the judiciary. Khehar held that the most important line to defend was the one shielding citizens “against discrimination and abuse of state power”.
The CJI’s term will be marked by a severe shortage of judges, including a shortfall of 25.81 per cent at the Supreme Court, up from 19 per cent under CJI Thakur in 2016. Two more apex court judges—Justices Pinaki Chandra Ghose and Prafulla Chandra Pant—are due to retire. If no judges are appointed to the top court by May,
its strength will drop to an all-time low of 21. According to Supreme Court records on December 31, 2016, there are 62,537 pending cases. The court admits over 7,000 new cases and disposes of 4,895 cases a month—or over 60,000 a year, compared to about 55-80 in the US and 100-180 in the UK.
As the head of judiciary, the CJI also leads 650 judges in higher courts and 16,000 judges in subordinate courts—facing a shortfall of 44 per cent and 25 per cent respectively. In a country where judges can hardly devote more than 2.5 minutes to hear a case (DAKSH, 2016), thanks to a massive shortfall in their numbers, the whole business of justice runs the risk of coming to a grinding halt. “His biggest challenge is to first finalise the new rules for appointment of judges in the apex and high courts, and then fill the present seven vacancies in the apex court,” says former CJI R.M. Lodha. It will also be his job to stamp out public bickering among apex judges and carry his colleagues with him in the collegium, or the five-judge group in the Supreme Court that decides appointments and transfers of higher judges. With Justice Jasti Chelameswar, the sole dissenting judge in the NJAC, going public with his grievances last September, the CJI will need to keep his house in order.
Unfortunately, the central government is yet to recover from the stinging rejection in the NJAC case, explains legal scholar N.R. Madhava Menon. The quest for a revised ‘Memorandum of Procedure’, approved by both sides, will not be easy or quick. Consider the 87th draft report by a Parliamentary Standing Committee, ‘Inordinate Delay in Filling up the Vacancies in the Supreme Court and High Courts’, presented on December 6. “It seems something like a reiteration of the NJAC doctrine that was rejected by the Supreme Court,” says Menon. It proposes to overrule the “veto power” of the CJI in the appointment of judges, making it a joint responsibility of both judiciary and executive, blames the CJI for the delay in appointments and in preparing the MoP.” It also calls the judiciary’s interpretation on appointment of judges a “constitutional distortion”. “The report, currently under study, signals that there will be hiccups in the future as well,” he says.
The CJI is taking over in the middle of a blockbuster court term, marked by a host of hot-button cases, of particular significance to the government and the political community. At the heart of it is demonetisation, PM Modi’s flagship black money crusade from November 8, when Rs 500 and Rs 1,000 currency notes were banned. With a clutch of petitions filed in the Supreme Court, challenging the constitutional validity of demonetisation, the court has referred the matter to a five-judge Constitution bench, refusing to buy the government’s argument that the decision was within the exclusive domain of the
executive, and beyond judicial scrutiny.
All eyes are also on the case of public sector banks and big corporate defaulters. The Supreme Court has just directed the Centre to furnish in four weeks an “action plan” along with a list of corporates owing Rs 500 crore or more to banks—brushing aside the Reserve Bank of India’s objections against making public the names of defaulters, already submitted in a sealed cover. The court has also asked liquor baron Vijay Mallya, who allegedly transferred $40 million to his children in violation of judicial orders, to file a response in the next three weeks.
With elections round the corner, the SC is set to decide half-a-dozen politically-charged cases: from disclosure of income sources by candidates to whether chargesheeted politicians should be kept out of the polls. Less dramatic, perhaps, but no less politically sensitive will be the triple talaq case, given the impending assembly elections in UP.
WORK IN PROGRESS
On January 4, the very day he was sworn in by President Pranab Mukherjee in the Ashoka Hall of Rashtrapati Bhavan, the CJI was seen striding purposefully into the court, just like he did every morning. And just like every other day, the job of swinging the gavel got going at 10.30 sharp. Professional and punctual as ever, he disposed of 30-odd cases in about an hour: hearing, adjourning or passing orders. Just another day. And for the Chief Justice and his 22 colleagues in black robes, time to get real work done.