SC judges' rift with CJI: Is Opposition trying to impeach Dipak Misra by fuelling drama around 'rebellion'?

Recent SC, CJI crisis reflects a pattern in which old empire is trying to strike back by rendering institutions dysfunctional through orchestrated attacks.

Sandip Ghose January 16, 2018 06:46:40 IST
SC judges' rift with CJI: Is Opposition trying to impeach Dipak Misra by fuelling drama around 'rebellion'?

There are many ways to look at last Friday's imbroglio in the Supreme Court. But, like most things in life, the timing of the implosion is significant if not intriguing.

That much was wrong inside the grand premises on New Delhi's Tilak Marg has been a poorly kept secret for long. Corruption in the higher judiciary has been spoken of not only in hushed tones inside chambers and corridors but sometimes even in open court. Eminent lawyers like Ram Jethmalani and Shanti Bhushan have submitted to the reigning chief justices of the day names of retired CJIs and judges who, in their view, would have failed the 'Caesar's wife' test. However, in a closed club of senior counsels and former judges, impeachments have been all too rare.

Similarly, differences and conflicts between judges are not unknown. As eminent barrister Harish Salve pointed out, anyone making it to the highest judiciary of the land would, by definition, have a "robust intellect". Judges, after all, are also human and it would be highly unnatural if strong individuals do not have occasional disagreements.

SC judges rift with CJI Is Opposition trying to impeach Dipak Misra by fuelling drama around rebellion

File image of Chief Justice of India Dipak Misra. PTI

Salve said in his long years of practice he has seen such bouts of tensions from close quarters and as Solicitor General, he was personally privy to quite a few such situations. But, those were always resolved within closed doors among the bench. Surely, there could not have been a unanimous agreement always and at times brother judges would have had to bury their differences in a spirit of "agree to disagree".

A few retired judges like Justice RS Sodhi and Justice Santosh Hegde, who appeared on television, expressed similar views. Unfortunately, this time around, the family linen has tumbled out of the Washing machine into the lawns of a judge's residence.

Justice Chelameswar's discomfort with the Collegium precedes the present chief justice (he refused to attend Collegium meetings even in CJI TS Thakur's tenure). The current saga ostensibly began with a letter the four senior judges had written to the chief justice a couple of months ago.

The concerns raised by them were certainly worthy of consideration. But, Justice Dipak Misra is not the first CJI whose administrative decisions have raised eyebrows. There were other CJIs, during the tenure of these four eminent judges in the Supreme Court, who did not have a lily-white reputation.

Not that any of that can be a justification, no specific instances were cited at the press conference at Justice Chelameswar's residence, which can be deemed as posing 'a grave danger to democracy'. It is only after persistent prodding by some journalists and non-journalists (who had gate-crashed into the presser) that Justice Ranjan Gogoi yielded the Judge Loya case had something to do with the impasse. Obviously, more was left unsaid than said, leading to avoidable inferences, insinuations and innuendos.

Sections of the media and a few notable members of the bar were quick to extrapolate that the crisis had arisen out of arbitrary decisions of the chief justice in allotting cases between the various benches. While reluctantly admitting the CJI as 'master of the roster', they hinted that his decisions to assign certain 'sensitive' matters to relatively junior judges were not innocuous.

Among the political parties, quite predictably Congress with its battery of legal eagles came out all guns blazing. Stopping short of accusing the chief justice of acting at the behest of the government, they questioned his prerogatives. It was repeatedly said that he is at best the first among equals with no special powers and can be held accountable even for administrative decisions.

Rahul Gandhi, in an entirely unwarranted intervention, went a step ahead to advise that the senior-most judge of the Supreme Court must hear the Judge Loya case (which many thought was a sheer giveaway of the Congress' game plan). Some loose cannons in the press and from the lawyer fraternity plainly talked of government interference in the Judiciary.

However, to a lay observer, if one were to go by the government's track record in the Supreme Court over the last three years, it has been at the receiving end more often than not.

In fact, "legal management" was never seen as a forte of the Narendra Modi government unlike the Congress, which has historically been a party of lawyers. Therefore, if the BJP government tried to meddle with the courts, it has certainly not been very successful or effective at that.

Dhananjay Mohapatra of The Times of India, one of the most experienced and knowledgeable Supreme Court reporters has compiled a list of cases from the past twenty years to show there is no precedence that "sensitive cases" must go to the senior-most judges. Then, there is also the question of who, or what criterion, determine a case is 'sensitive' or not?

On this too, Salve commented tongue firmly in cheek to a TV Channel reporter: "... you should ask these questions to lawyers who handle matters of national interest and not to me, who deals with cases of petty commercial interest".

This is what makes the timing of the press conference curious. The letter of the judges released to the press was written several weeks ago. So, what exactly precipitated the showdown? Was Justice Loya's case of such tremendous national importance for the judges to take it to the peoples' court or the "nation" as Justice Chelameswar announced?

If that was indeed so – does it not betray a certain predisposition in the minds of the four judges, which itself may have been a reason for the CJI to refer it to another bench.

This is what lends credence to the theory that there was more to it than meets the eye. It is not for this writer to infer if this could be a spillover of the Medical College bribery case, which the CJI had taken away from Justice Chelameswar's court. While Justice Chelameswar would have reasons to be miffed, it is difficult to believe that someone of his stature would have taken it personally to heart. However, the lawyers who were rebuffed did not make any secret of their hostility and, coincidentally, these are the same people who have been most vocal against the CJI over the weekend.

Similarly, it would be tempting to attribute reactions of the Congress to their discomfiture over Justice Misra's order to reopen SIT investigations on the 1984 Sikh riots or his presiding over Ram Janmabhoomi case hearing, that is slated to commence soon. But, that would be entering the realms of speculation, which is best avoided in a legally loaded issue.

However, it is clear from the developments of the last few days that the incumbent CJI is isolated among his colleagues of the Collegium and a certain section of the Bar, who have very clear ideological and political affiliations. This reflects a kind of polarisation that one is seeing in many institutions of the country and here Justice Misra is the quintessential "outsider" in an eco-system that was kept watertight till recently.

A pattern seems to be emerging in which the old empire is trying to repeatedly strike back by rendering institutions dysfunctional through well engineered and orchestrated attacks. Whether the Supreme Court is its latest target can only be a subject of conjecture.

If one were to subscribe to conspiracy theories then this could easily pass as an attempt by elements in the Opposition to impeach by subterfuge since they neither have "justiciable evidence" (as Pratap Bhanu Mehta calls it) nor the numbers in Parliament to move an impeachment motion.

All this while, the chief justice himself has not uttered a single word on the issue and is going on with his court work as usual. The government to its credit has maintained a studied silence, calling it an internal matter of the Judiciary. Barring some unconfirmed report of the prime minister's principal secretary being spotted in a car outside the chief justice's residence, it would appear they have at best left the matter to the attorney general's wisdom and standing in the Judiciary.

It is entirely possible that after the outburst truce will be restored, the crisis will blow over and the judges will return to the bench, as indeed they have done today. But, the earth would have moved a few inches after the weekend tremors.

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