The Honorable Dissent: Who said, what? – Part II

Guest post by Namratha Murugeshan

It has almost been a month since the four puisne judges of the Supreme Court addressed the public regarding a ‘crisis’ in the Indian judiciary. A lot has been said and written by lawyers, judges, legal scholars and multiple other stakeholders in this interim period. The aim of the present post is to summarize some of these opinions. For further coverage do look at the previous post on this issue here.

Through several interviews with members of the judiciary and previous law ministers, The Indian Express elaborated on the role of the CJI as the ‘master of the roster’ and emphasised on the fact that the discretion exercised by him must be within constitutional boundaries. Apart from highlighting the divided opinion within the legal community on this matter, B V Acharya additionally commended the CJI and the Prime Minister on maintaining silence on this issue and preventing further cause for speculation. According to Karan Thapar, the press conference was an indication of the possible pliability of some junior judges of the court by the CJI and political actors. He further commented that the 4:1 split of the senior-most judges might render the collegium system dysfunctional.

A common thread running through multiple opinions was regarding the accountability of the Chief Justice’s (CJI) office. Sruthisagar Yamunan said that despite the unprecedented press conference, the judicial institution seems to have retracted to its original opacity by portraying the matter as an ‘internal conflict’. He also mentioned the severe impact of CJI’s administrative control over allocation of cases on the justice delivery system. Echoing this thought, Seema Chishti cited the Medical Council of India case as an example of misuse of the  CJI’s powers  as the ‘master of the roster’. Similarly, Akshay Deshmane tied the matter back to the petition by Campaign for Judicial Accountability and Reforms (CJAR) on 10 November 2017.

Placing this crisis in historical context, Arun Thiruvengadam wrote that this issue is indicative of ripples being felt in all constitutional institutions of India’s democratic governance. Explaining the powerful nature of the Indian judiciary and the expansion of its role over the years since independence, he emphasized on the role of the Basic Structure doctrine and Public Interest Litigation in establishing its unprecedented authority which often goes unquestioned now. Writing for The Week, C Uday Bhaskar pointed out that Justice Ruma Pal had raised the issue of unquestioned authority of the Apex Judiciary in November 2011 itself. He said that the combination of professional shortcomings and moral iniquity has historically gone unquestioned within the walls of the judiciary and this has led to selective application and interpretation of the law.   

In anticipation of the possible outcomes of the press conference, several scholars have primarily focused on the previous responses of the judiciary to such disruptions. Rooting the crisis to institutional norms, Alok Prasanna Kumar highlighted the possibility of a satisfactory resolution by drawing inspiration from the cases concerning the transfer of Justice Jayant Patel and designation of senior lawyers in High Courts. In both the instances not only did the the institution accept its fault but also arrived at new norms to address the issue. On the contrary, CPI(M) General Secretary Sitaram Yechury expressed his scepticism over the judiciary resolving this conflict from within and suggested an intervention by the legislature. He sought the said intervention on grounds that it was paramount to re-establish the faith of the Indian people in the institutions of governance. Countering this suggestion Rajdeep Sardesai argued that the loss of faith in the judiciary stemmed from its vexed relationship with the Executive. He cited the practice of appointing judges as governors and committee-heads post retirement as possibly enticing judges to rule in favor of the incumbent political class.    

In the meanwhile, the Supreme Court adopted a new roster of allocation for cases on the 5th of February, 2018. Detailing the working of the new roster, Prashant Bhushan said that the new system evokes more questions than addressing the concerns raised by the judges in their press conference. He said that the new roster allows for the CJI to aggregate important cases to himself.  It should be noted that this matter is the same concern raised by the four senior judges in their press conference on the 12th of January, 2018. Krishnadas Rajagopal elaborated on the new system of allocation wherein cases are divided based on subject matter for the first time in Indian judicial history. He pointed out that in doing so the CJI has entirely allocated the PIL jurisdiction to himself. The ‘revolting quartet’ who form the rest of the collegium have been handed cases concerning matters of various significance none of which seem to be of national importance. 

Despite a tectonic shift caused by the press conference and questions still unanswered, the court has continued to perform its judicial function. While some have regarded the event as a favorable turning point in the Indian judiciary, others have condemned the four senior judges for setting an unwelcomed precedent.  It might be too early to contemplate how the event will go down the annals of the history. However, one thing is certain – the administrative powers of the Chief Justice’s office is now under great scrutiny – whether adequate safety nets will be imposed to prevent its misuse is the looming question. 

 

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