ROUTINE VS URGENT IN CJI’S COURT
When Congressman Kapil Sibal, claiming to represent the Sunni Waqf Board in the Ayodhya Ramjanmabhoomi title dispute, sought to put pressure on the three-men bench headed by the then chief justice Dipak Misra last year to delay hearing of the case until after the 2019 Lok Sabha elections, he almost invited a rebuke from the court. The bench, which questioned the lawyer-politician with a flourishing practice as to what the elections had to do with the case, went ahead with the hearing and achieved steady progress, which made it appear that an early resolution of the dispute was on the cards. It also declared that no adjournments would henceforth be allowed.
But by an unexpected twist to the tale, Sibal can now have the gratification of getting his wish fulfilled by default. New Chief Justice Ranjan Gogoi has adjourned the hearing to January 2019, rejecting a plea by the Uttar Pradesh government for an early decision, saying the court had its own priorities. The court’s decision has led to Hindutva elements getting restive and putting pressure on the Modi government to go for the ordinance route to overcome the delay and go ahead with the construction of the Ram Mandir at the disputed site.
Justice Gogoi made it clear on his first day itself as CJI that cases would be taken up only in a routine manner and there would not be any urgent hearing of matters brought up by lawyers as very important issues. The CJI, who has been expressing frustration at the long pendency of cases at various forums, promised to come up with new parameters and streamline the practice of mentioning cases. “Till then, only matters where someone is getting evicted or hanged or killed would be heard,” he declared. The approach is at variance with the practice followed during Justice Dipak Misra’s time, when matters of urgent nature were taken up for hearing straightaway.
Apart from the Ayodhya dispute, the new CJI has refused to consider the perceived urgency in a number of cases, including the tricky Sabarimala issue in which a large number of review petitions have been filed in view of an explosive situation that is developing there due to stiff resistance from devotees to the entry of women to the hill shrine. The temple is scheduled to reopen for a full season lasting over two months by the middle of this month, but the issue would be taken up only a couple of days before the scheduled opening of the temple. An urgent plea to consider the matter ahead of a one-day puja on coming Monday was not allowed on the ground that it was only for one day and things can be managed. The Kerala government is deputing 5,000 security personnel, including armed commandoes at the temple complex alone, to maintain order, not to speak of the elaborate bandobast all along the routes leading to the temple.
Well, it’s all about approaches. Justice Gogoi was one of the four judges in the dramatic presser under the leadership of Justice Chelameswar, which was all about the approaches of the former CJI. So, it is patent that the new incumbent would naturally make a break from the past.
The four judges, two of them now serving on benches headed by Justice Gogoi, had expressed serious issues about the ways of the former chief justice, which could “not only lead to unpleasant and undesirable consequences of creating doubt in the body politic about the integrity of the institution. Not to talk about the chaos that would result from such departure.” The judges also referred to instances where cases “having farreaching 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 rationale basis for such assignment.”
If one applies the essence of the grievance to decisions in several cases of national importance, it may be seen to provide the ground to suspect a connection between the constitution of the bench and the nature of the decision arrived at. This was, in fact, the burden of argument in the complaint by the aggrieved judges. So, the decisions of the new CJI may be expected to reflect a departure from the line adopted by the former chief justice.
If there is one man ruing about his misfortune in the wake of the new approach, it would be Karnataka BJP leader Yeddyurappa, whose fate was sealed by a midnight hearing of a Congress-sponsored petition, which had no possibility whatsoever of making it worthy of such urgent consideration if Dipak Misra had followed the standard procedure, the type of which Justice Gogoi is now talking about. The previous midnight session was to hear a plea against the execution of Yakub Memon for his role in the 1993 Mumbai blasts case. The Congress lost the plea to stop the swearing in, but when the hearing resumed the next morning, the court reduced the 15-day window that was allowed by the Governor to one day and ordered a floor test. The rest is history.
Had the issue been considered in a routine manner, which is the prevailing order today, for all one knows about Yeddyurappa, he would have been sitting on the chair now occupied by H D Kumaraswamy. Also, the coming days will reveal how the change of approach reflects in the court’s judgments.