Crisis of Justice


Beyond the tornado created by the unanticipated and almost unthinkable press conference by Supreme Court’s four top judges against the Chief Justice of India, the sudden quietude suggests a war within between the Left and the Right in the Indian judicial system

Parsa Venkateshwar Rao Jr

Parsa Venkateshwar Rao Jr

Parsa Venkateshwar Rao Jr is a Delhi-based journalist, who’s worked with Indian Express in multiple editions, and with DNA in Delhi. He has also written for Deccan Herald, Times of India, Gulf News (Dubai), Daily Star (Beirut) and Today (Singapore)

A senior Supreme Court lawyer, in a casual conversation nearly a month after the unprecedented press conference on January 12, 2018 by Supreme Court Justices J. Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurien Joseph airing their unhappiness with the way senior judges were overlooked in the allotment of important cases, said that (the press conference) was an old story.

She said that what they (the four senior judges) did was right and implied that they had committed no sacrilege, and that it was good that they came out and spoke up. But the matter of the rebellion of the judges was over, she said. What mattered now was the right-wing tilt of the Supreme Court judges, which threatens the liberal values of the constitutional system.

As a matter of fact, the heart of the matter is the perceived right-wing tilt of the Supreme Court and the judges’ rebellion was incidental. In more explicit terms, the fear of the liberals is that the judges are delivering judgments that favour the right-wing BJP-led NDA government of Prime Minister Narendra Modi. Two cases pending before the court are cause for concern. The first is the Public Interest Litigation (PIL) regarding the death of CBI court judge BH Loya on December 1, 2014.

The case was allotted to Judges Arun Mishra and Shantana Gouder. After the press conference of January 12, Justice Mishra on January 16 asked the case be put up before the “appropriate bench”. And on February 1, Chief Justice Dipak Misra made the roster system public and specified the kind of cases that each of the judges would deal with.

He has kept to himself all matters arising out of Public Interest Litigation (PIL). The Supreme Court bench comprising Chief Justice Dipak Misra, Justices DY Chandrachud and AM Khanwilkar have made it clear that the court will only deal with the causes of the death of Judge Loya and it would not be concerned with issues involved in the Sohrabuddin fake encounter case. The petitioners contend that there is a crucial connection between the issues involved in the Sohrabuddin case and the death of Judge Loya.

The second issue is the appeal in the Babri-Masjid-Ramjanambhoomi case against the 2010 judgment of the Allahabad High Court. There is apprehension that the Supreme Court under Chief Justice Misra might deliver a verdict that would favour the Modi government. The Supreme Court bench said that the case would not be treated as a matter of inter-faith contest but as a land dispute.

Politics and Camouflage

The clarifications of the Supreme Court in the Loya and Ayodhya cases indicate that these are being treated in purely legal terms and that the politics surrounding them will not be allowed to intrude into the court. But it is the politics of these cases, however extraneous they may be to their judicial merits and intricacies, that steal the limelight and dominate discussions and perceptions.

There are three interesting, intersecting views of the tremors caused by the January 12 press conference which is now being sought to be dismissed as of no serious consequence. The first is that there is serious trouble at the top in the Supreme Court and that personality clashes between the judges reveal that there are not enough rules and conventions for the running of the Supreme Court, and it leads to the Chief Justice of the day asserting more power than he really should. The second view is that the protesting judges were really objecting to the court kowtowing to the Modi government because of ideological affinities. The third is that there is an ideological conflict between the dissenting judges and the chief justice. It really boils down to a clash between Chief Justice Mishra and other judges like Justice Arun Mishra who is seen to be favoured by the chief justice on the one hand, and the four dissenting judges on the other. The issue becomes a little more complicated when observers and critics infer that the chief justice is seen to leaning towards the right-wing ideology of the BJP, and that the four conscientious objectors are liberals and secularists. Chief Justice Misra was part of the majority of the Constitution Bench headed by then chief justice JS Khehar which declared the National Judicial Appointments Commission (NJAC) Act to be unconstitutional because it infringed upon the concept of the independence of the judiciary, which is seen as one of the basic features of the Constitution. Hence, any constitutional amendment that violates the basic structure is held to be unconstitutional. And it was Justice Chelameswar, who wrote the lone dissenting judgment, upholding the validity of the NJAC Act.

What gave rise to the apprehension that Chief Justice Mishra was a right-winger was the ruling he gave that all the cinema halls should play the national anthem and that it will help inculcate the spirit of nationalism. But later, a Supreme Court bench of which Chief Justice Mishra was a member modified the order saying that it was not mandatory to play the anthem. Justice D.Y.Chandrachud of the same bench had observed that it was not necessary to wear patriotism on one’s sleeve. At the conference of the Chief Justices of High Courts in Delhi in November, 2017, Chief Justice Mishra ticked off Union Law Minister Ravi Shankar Prasad saying that it is for the judiciary to interpret the constitution, even if that meant reviewing policy.

Collegium Conundrum

The court has not yielded ground on the issue of the appointments of judges. As pointed out by Supreme Court lawyer and Congress politician Kapil Sibal in an interview to Parliamentarian has pointed to the instance of the government rejecting the name of Uttarakhand Chief Justice K.M.Joseph for the Supreme Court. If the court were really leaning towards the government of the day, then it should have had no problem in getting its recommendation through. There is then a battle that is on between the government and the judiciary, and Chief Justice Dipak Mishra is indeed the face of the judiciary at the moment.

There is an uneasy, brittle truce between the government and the Supreme Court at one level. At another level, there are dissonances in the Supreme Court. The January 12 press conference of the four judges is a sign of the intra-court friction. There is of course nothing momentous either with the tautened relationship between the judiciary and the executive, or the stresses and strains among the judges of the apex court.

What is surprising is there is no redrawing of the dividing lines nor is there any definitive redefining of roles.

A senior law officer speaking on condition of anonymity felt that the developments arising out of the press conference as well as the foregrounding of cases like that of the Ayodhya dispute or that of the case concerning Judge Loya’s death in suspicious circumstances have been shaped by implicit political agendas of all those involved, and that when things come to the Supreme Court they are not considered on the basis of intrinsic merits but for political fallout.


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