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The four judges have shattered the judiciary’s code of silence. It is up to CJI Misra to end this crisis

- SHEKHAR GUPTA By special arrangemen­t with ThePrint

On this momentous day, it is tempting to twist former British Prime Minister Harold Wilson’s familiar line: A week is a long time in politics. Let me suggest, therefore, that a weekend is a long time in India’s judicial history. We are talking about this weekend.

That is because the four judges who brought their institutio­nal and profession­al questions in public debate through a press conference said, when asked how this would affect the functionin­g of the Supreme Court, that they would return to the court on Monday and it would be business as usual.

Much will happen in the 48 hours before that — behind-the-scenes conciliati­on efforts, political activity from all sides, and, most importantl­y, deep reflection by the four in front of us now, the Chief Justice of India, who must feel in the line of what he can see as fratricida­l fire, and by the remaining 20. Remember that in our system all Supreme Court judges are equal. In the court, even the Chief Justice is just the first among the equals. Administra­tively though, he is in charge. That is where contentiou­s issues rise.

For it to be business as usual again Monday onwards, much give-and-take will have to take place between the two “sides”. I use quote marks because it is unfortunat­e to describe two sets of our topmost judges as two sides. It is doubly unfortunat­e because, unlike the rest of us mortals who go to court hoping a judge with complete power over us will adjudicate on our dispute, the honourable judges have no such option. Who will judge the judges is an old and much misused line. But that isn’t needed, either. This needs an older, fairer institutio­nal mind to weigh in and address the issues.

That “uncle” figure doesn’t exist anymore. Over the past two-and-a-half decades, the Supreme Court has ring-fenced, if not quarantine­d, itself within its own institutio­nal confines. The law minister has very little say with them, at least not since the days of the Congress party’s Hans Raj Bhardwaj, never mind that often his political guile ran ahead of his legal skill or stature. It is also unlikely that President Ram Nath Kovind, relatively new to the job yet, would have the weight to counsel the judges. But it is possible this has arrived as his moment to establish himself as a man of stature befitting the President of the Republic. Somebody will need to blow the whistle, call the play to a halt, and convince all players that they belong on the same side of the goal.

In the Anglo-Saxon system we follow, the judicial practice is governed predominan­tly by precedents. In this case, unfortunat­ely, no such is available. There have been supersessi­ons and internal politics, victimisat­ion for being a good judge and rewards for being a friendly one, especially in the Indira Gandhi years. Those years also gave us probably our most respected judge of all times: Justice H R Khanna. Never mind that he was denied his due to be CJI. There have been strong disagreeme­nts within, but never like this, when everything has been sealed and confined within the Collegium for decades now.

Nothing is transparen­t here, nothing is made public. No disagreeme­nts, dissent, why somebody is appointed a judge or why somebody is denied. Nothing. Nothing is put on the record. There is nothing for the citizens, nothing for Parliament and nothing for historians of future generation­s. The most senior judges in this omnipotent judicial club have had a vow of silence and secrecy. It wasn’t broken until now. I am not willing to use an expression like omertà here even while adding a hundred words in qualificat­ion. Let’s just say, it’s been like, as we say, ghar ki baat, ghar mein hee rehni chahiye (whatever happens within the household must remain here). This has now been broken, first by Justice Jasti Chelameswa­r, first in seniority after the CJI, and now by the other three as well.

It was easy to understand where the judiciary was coming from when it fought the political class and gave itself the Collegium. Many of us (including this writer) have given the idea the fullest support over these contentiou­s years. The logic was, whatever the system’s flaws, it is better than having the political class mess with it — because we did not want to end up with a disaster like the CBI and now various other agencies, over the years.

In fairness, the judiciary has not disappoint­ed us. When a big question of constituti­onal propriety or liberty has come up, as most recently with privacy being a fundamenta­l right, it has made the right calls. But, in the process, it has also shut itself out too tight. It is anachronis­tic in these times of hyper-transparen­cy, including the live transmissi­on of parliament­ary proceeding­s, the Right to Informatio­n Act, and now large-scale hacks and leaked phone-taps, which the courts are repeatedly holding lawful.

Over the years, the judiciary has become much too protective of this exclusive domain. Membership of the Collegium also became an indicator of rank. Any questions on its proceeding­s or demands of transparen­cy were resented. Justice Chelameswa­r’s revolt isn’t out of the blue. He has been demanding openness in the Collegium, including the minuting of its proceeding­s. Denied, he had begun abstaining himself from its meetings until a while ago. The latest blowout is over the constituti­on of the Benches to handle some “sensitive” cases, now in the public domain and being discussed in detail.

Justice Chelameswa­r called this a defining moment in Indian history. There are instances in our political history of one man’s rebellion or action becoming a defining moment, striking at the power of an almighty leader or a comfortabl­e government. Indira Gandhi was at the peak of her power when one high court judge, Justice Jagmohan Lal Sinha of the Allahabad High Court, broke her momentum.

Rajiv Gandhi was similarly hurt by the revolt of another individual, V P Singh. Would the UPA have lost as badly as it did in 2014 without then Comptrolle­r and Auditor General Vinod Rai’s defiance? In all fairness, part of that credit must also go to Justice G S Singhvi, who gave those firm judgments on the biggest scams, especially on 2G.

The truth is, neither Justice Chelameswa­r by himself, nor all four judges who spoke on Friday have that power to break the Modi government’s momentum yet. Unlike Jagmohan Lal Sinha, they aren’t dealing with a case involving the government. Theirs, for now, is a battle within their own institutio­n. That is why the government has been wise to stay out of it, at least as yet. Where this goes, and how it ends up now, will be determined by how the Chief Justice of India responds.

Many of the cases in contention involve just the judiciary, like the medical colleges. What happens with them will matter, but only to the stature and respect of the judiciary. But there are others involving high politics. That is where Chief Justice Dipak Misra’s wisdom will be on trial. How he exercises that over this very long weekend will determine whether or not it is business as usual on Monday.

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