The unprecedented turmoil in the Supreme Court in the wake of the four senior most judges taking exception to CJI Dipak Misra’s style of functioning last Friday continues to fester and has not been resolved so far, Attorney General K K Venugopal acknowledged Tuesday.
“Let’s hope things will be finally settled within the next two or three days,” Venugopal said even as Supreme Court Bar Association President Vikas Singh felt the continuing impasse might end by this weekend. When he met the CJI on Sunday, Singh got the impression that normality will return to the Apex court within a week.
The dissenting judges have been attending court since Monday so as not to precipitate matters. These judges – Justices J Chalameswar, Rajan Gogoi, Madan Lokur and Kurian Joseph – maintained they had gone public on the ground that some damage had been done to the highest judiciary and they were trying to contain it.
When the apex court reassembled on Monday after the weekend, Chief Justice Misra as the “Master of the Roster” listed seven cases that will be heard by a Constitution bench leaving out the four senior most judges. The five-judge bench comprises the Chief Justice himself, Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan.
It will commence hearing on a range of crucial matters among others like the challenge to the constitutional validity of the Aadhar Act and its 2013 judgement recriminalising gay sex between consenting adults. The same combination of judges had heard various Constitution Bench matters in October last year including the power tussle between the Centre and the Delhi government over the administrative jurisdiction and a matter pertaining to passive euthanasia.
While it was widely believed that the issues raised by the four judges remained an internal matter of the S C, it needed to be resolved within the four walls of the Apex court steering clear of any outside intervention. At the same time, various Bar Councils, retired judges and civil society were emphatic that the matter should be resolved quickly.
Differences among judges was more than procedural revolving around Bench formation.
This aspect has taken a beating over the last four days. If the four judges believe ulterior motives have been at play in the constitution of Benches, the people have the right the know the basis on which it is done. Several eminent jurists and respected public figures have been highly critical of the four judges for going public against the CJI.
If such internal matters are made public, there is an inherent danger of the people losing faith in the courts leading to irreparable damage to the country. Keeping such sensitive matters under wraps comes in the way of people taking a view on the basis of facts. The process of the constitution of Benches to adjudicate matters has to be transparent and based on norms even as the Chief Justices have to control that process.
There should be no room for any doubt in this regard. The issue of allocation of cases to different Benches has been simmering for several months. The problem pertains to the CJI reportedly ignoring senior judges in allocating important and high-profile cases. The possibility of this administrative tussle might have prevailed during the tenure of many CJIs in different governments at the Centre.
The problem stems from allocating important cases to junior judges. This has invariably led to the CJI’s integrity being questioned. Has the much talked about judicial independence led to self-preservation of judges and judicial activism?
Rendering impartial justice cannot be compromised. Tradition and jurisprudence deny power to a Chief Justice to send cases to the courts of his own preference to avoid being a gate keeper for justice as an interested party in favour or against anyone. That is why a system is in place seeking to minimise the risk of injustice.
If there is an anomaly whereby the system fails to deliver justice, then it must be remedied expeditiously. The present crisis has underlined the imperative need for bringing about direly needed judicial reforms. The question is will the Supreme Court be able to evolve a consensus on this issue which brooks no delay?
The writer is a senior journalist and commentator.