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Judiciary vs legislature: Long-running feud only proves that regardless of outcome, status quo alone triumphs

The elevation of Justice KM Joseph to the Supreme Court has brought to an end a long-running saga, one that has brought to the fore the deep divisions that run between the judiciary and the legislature in India.

It was in February this year that Joseph's name was first recommended by the Supreme Court Collegium. That it was approved only in August, over six months after the original recommendation, would be cause for concern. Especially so because of other developments that have also taken place in the meantime.

Here's a look at the major flashpoints that have come up between the two in the last eight months:

Judges' revolt:

On 12 January this year, the four senior most judges of the Supreme Court — Justices J Chelameswar, Ranjan Gogoi, MB Lokur and Kurian Joseph — held a press conference in Delhi, where they said the situation in the top court was "not in order" and many "less than desirable" things have taken place. Unless this institution is preserved, "democracy will not survive in this country", the four judges said.

 Judiciary vs legislature: Long-running feud only proves that regardless of outcome, status quo alone triumphs

The four senior-most judges of the Supreme Court held a press conference in January this year. PTI

The four said they had met Chief Justice of India Dipak Misra and apprised him of these misgivings, but they "failed to persuade" the CJI that certain things are not in order, and he should take remedial measures. "Unfortunately our efforts failed. And all four of us are convinced that democracy is at stake and many things have happened in recent past," Chelameswar said.

Asked what these issues were, he said they included the "allocation of cases" by the chief justice. "It is too well settled in the jurisprudence of this country that the chief justice is only first amongst equals — nothing more or nothing less," the letter read.

But the issue was quickly put to rest. The Bar Council of India (BCI) held a subsequent press conference, where it said that its members have met 15 judges of the Supreme Court following the crisis in the apex court and they have been assured that the issues have been resolved. "Kahani khatam ho gaya (the story is now over)," BCI chairman Manan Kumar Mishra told a press conference in New Delhi.

'Impeachment' of Justice Misra:

But while the story was said to be over, another battle was brewing in the Parliament. In April, Opposition parties launched an unprecedented bid to impeach CJI Dipak Misra, accusing him of failing to protect the independence of the judiciary from executive interference, among other charges.

A petition, backed by lawmakers from seven parties, raised five charges against the CJI, including an accusation that he arbitrarily used his power to allot sensitive cases, and questioning his conduct in the acquisition of land. The petition to impeach him for "acts of misbehaviour" and misuse of authority was signed by 64 serving members of the Upper House of the Parliament.

They belonged to the main Opposition Congress Party, the Communist Party of India and Samajwadi Party — a powerful regional party in the key northern state of Uttar Pradesh — and four other parties.

However, the apex court ​dismissed the petition as withdrawn. Rajya Sabha chairman Venkaiah Naidu had earlier rejected the motion for 'impeachment' helmed by Congress leader Kapil Sibal on the grounds that they were mere allegations and even those who were making the allegations were not sure of them.

CJI remains the master of the roster

Another criticism raised by the four rebel judges against CJI Dipak Misra was that he used his powers as 'Master of the Roster' to unfairly assign cases to benches deemed more receptive to those issues.

But in July, a bench of Justices AK Sikri and Ashok Bhushan maintained that the CJI is the "master of the roster" and has the prerogative and authority to allocate cases to different benches of the apex court.

A five-judge constitution bench and a three-judge bench have already held that the CJI is the master of the roster. Justice Sikri said, "As far as the role of CJI as master of the roster is concerned, there is no dispute that he is the master of the roster and has authority to allocate cases to different benches of the Supreme Court."

It again proved that in the Supreme Court of India, or indeed in the many tussles involving the judiciary and the legislature, the status quo always prevails.

Justice KM Joseph elevation row:

Justice KM Joseph was elevated to the Supreme Court on Friday, but it wasn't a straightforward process. The government sat on the process for over six months, refusing to accept the collegium's recommendations.

The government's contention at the time was that having another Supreme Court judge from Kerala would distort the carefully maintained composition of the apex court. The apex court already had Justice Kurian Joseph, who was elevated as a Supreme Court judge on 8 March, 2013, from the Kerala High Court, while there were also two other high court chief justices — Justices TB Radhakrishnan and Antony Dominic — the parent high court for both of them being Kerala. Radhakrishnan is currently the Chief Justice of Chhattisgarh High Court, while Dominic is Chief Justice of Kerala High Court.

Furthermore, as a report on NDTV argued, KM Joseph's elevation could have been delayed also because there is no Dalit judge on the roster of Supreme Court justices. It said that ever since KG Balakrishnan retired as the Chief Justice of India in 2010, not a single Dalit judge has been elevated to the Supreme Court or even as the chief justice of a high court.

The government is facing a backlash from Dalits over a court verdict that relaxed provisions of the SC/ST Atrocities Act, and has pointed out in the past that the communities have not been represented in the Supreme Court for a long time.

Finally, on Friday, Joseph's candidature was approved, proving that the collegium remains supreme.

The more things change...

As BV Rao wrote on 13 February, one month after the four judges' revolt, "Why has nothing changed? This has .... more to do with how the Supreme Court has evolved as an opaque institution of absolute and unbridled authority in the last three decades, giving unto itself, incrementally but purposefully, powers that tilted the balance of power between the three pillars of democracy."

"That is why dramatic and unprecedented as the press conference was, it was not going to significantly change the way the Supreme Court functions. We are none the wiser if democracy is any better off today than on 12 January. The top judiciary has retreated behind that opaque wall of privilege into familiar radio silence. There it will stay, ring-fenced from any and all oversight from any other organ of democracy even as it judges all others. And that is a tragedy bigger than 12 January. It is not of Justice Misra's making. It has been building up over the last three decades. And every top judicial officer, past and present, is responsible for arrogating to themselves qualities of invincibility that the Constitution never intended granting. To the 'nation' — and the democracy that the judges wanted to pay their debt to — that is of bigger concern than which judge gets to sit on which matter. But that is a debate for another day," he added.

And so the more things change, the more they remain the same. At least within the hallowed walls of the Supreme Court.

With inputs from agencies

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Updated Date: Aug 03, 2018 15:07:15 IST

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