Supreme Court judges vs CJI: Dipak Misra must lead the resolution | By Barkha Dutt | columns | Hindustan Times
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Supreme Court judges vs CJI: Dipak Misra must lead the resolution | By Barkha Dutt

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

columns Updated: Jan 12, 2018 23:55 IST
Supreme Court judges Kurian Joseph and J Chelameswar addresses the media, New Delhi, January 12, 2018
Supreme Court judges Kurian Joseph and J Chelameswar addresses the media, New Delhi, January 12, 2018(Arvind Yadav/HT PHOTO)

The unprecedented media conference by four of the five senior-most 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.

Justice Chelameswar and Justice 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.

Barkha Dutt is an award-winning journalist and author

The views expressed are personal