Gath­er­ing Storm

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

India Today - - INSIDE - By Da­mayanti Datta

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”.

JUDGE WANTED

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.

HOT-BUT­TON CASES

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.

CHANDRADEEP KU­MAR

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