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What CJI Misra does this weekend will decide the future of Indian judiciary

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The four judges have shattered the judiciary’s code of silence. How this crisis ends is up to Chief Justice of India Dipak Misra.

On this momentous day, it is tempting to twist former British Prime Minister Harold Wilson’s familiar line: a week is a long time in politics. Let me suggest, therefore, that a weekend is a long time in India’s judicial history. We are talking about this weekend.

That is because the four judges who brought their institutional questions into public debate said, when asked how this would affect the working of the Supreme Court, that they will return Monday and it will be business as usual.

Much will happen in the 48 hours before that. Behind-the-scenes conciliation efforts, political activity, and most importantly, deep reflection by the four in front, the Chief Justice of India—who may feel in the line of fratricidal fire—and by the remaining 20. Remember, that in our system, all Supreme Court judges are equal. In the court, even the Chief Justice is just the first among the equals. Administratively, though, he is in charge. That is where issues rise.

Graphic showing ThePrint's Editor-in-Chief Shekhar GuptaFor it to be business as usual Monday onwards, much give-and-take will have to take place between the two “sides”. I use quote marks because it is unfortunate to describe two sets of our topmost judges as two sides. It is doubly unfortunate because, unlike the rest of us mortals who go to court hoping a judge with complete power over us will adjudicate fairly on our dispute, the honourable judges have no such option. Who will judge the judges is an old and much misused line. But here, that isn’t an option either. This needs an older, taller, fairer institutional mind to weigh in and address the issues.

That avuncular figure doesn’t exist anymore. Over the past two-and-a-half decades, the Supreme Court has ring-fenced, if not quarantined, itself within its own institutional confines. The law minister has very little say, at least not since the days of the Congress party’s Hans Raj Bhardwaj, never mind that often his political guile ran ahead of his legal skill or stature. It is also unlikely that President Ram Nath Kovind, relatively new to the job yet, would have the weight to counsel the judges, though it is possible this has arrived as his moment to establish himself as a man of stature befitting the President of the Republic. Somebody will need to blow the whistle, call the play to halt and convince all players that they belong on the same side of the goal.

In the Anglo-Saxon system we follow, the judicial practice is guided by precedents. In this case, unfortunately, no such is available. There have been  supersessions and internal politics, victimisation for being a good judge and rewards for being a friendly one, especially in the Indira Gandhi years. These years also gave us probably our most respected judge of all time: Justice H.R. Khanna. Never mind that he was denied his due to be CJI. There have been strong disagreements within, but never like this, when everything has been sealed and confined within the Collegium for decades now.

Nothing is transparent here, nothing is made public. No disagreements, dissent, why somebody is appointed a judge or denied. Nothing. Nothing is put on the record. There is nothing for the citizens, nothing for Parliament and nothing for historians. The most senior judges in this all-powerful club have had a vow of silence and secrecy. It wasn’t broken until now. I am not willing to use an expression like omertà here even while adding a hundred words in qualification. Let’s just say, it’s been like, as we say, ghar ki baat, ghar mein hee rehni chahiye (whatever happens within the household must remain here). This has now been broken, first by Justice Jasti Chelameswar, second in seniority after the CJI, and now by the other three as well.

It was easy to understand where the judiciary was coming from when it fought the political class and gave itself the Collegium. Many of us (including this writer) have given it the fullest support over these contentious years. The logic was, whatever the system’s flaws, it is better than having the politicians mess with it. Because we did not want to end up with a disaster like the CBI and now various other agencies over the years.

In fairness, the judiciary has not disappointed us. When a big question of constitutional propriety or liberty has come up, as most recently with privacy being a fundamental right, it has made the right calls. But, in the process, it has also shut itself too tight. It is anachronistic in these times of hyper-transparency, including live transmission of parliamentary proceedings, Right to Information Act, and now large-scale hacks and leaked phone-taps which our own courts are repeatedly holding lawful.

Over the years, the judiciary became much too protective of this exclusive domain. Membership of the Collegium also became an indicator of rank and protocol. Any questions on its proceedings or demands of transparency were resented. Chelameswar’s revolt isn’t out of the blue. He has been demanding openness in the Collegium, including the minuting of its proceedings. Denied, he had begun abstaining from its meetings until a while ago. The latest blowout is over the constitution of the benches to handle some “sensitive” cases, now in the public domain and being discussed in detail.

Justice Chelameswar called this a defining moment. There are instances in our political history of one man’s rebellion or action becoming a defining moment, striking at the power of an almighty leader or a comfortable government. Indira Gandhi was at the peak of her power when one high court judge, Justice Jagmohan Lal Sinha of the Allahabad High Court, broke her momentum.

Rajiv Gandhi was similarly hurt by another individual, V.P. Singh’s revolt. Would UPA have lost out as badly as it did in 2014 without CAG Vinod Rai’s defiance? Although, in fairness, part of that credit must also go to Justice G.S. Singhvi, who gave those firm judgments on the biggest scams, especially on 2G.

The truth is, neither Chelameswar by himself, or all four who spoke today, have that power to break the Modi government’s momentum yet. Unlike Jagmohan Lal Sinha, they aren’t dealing with a case involving the government or its dominant leader. Theirs, for now, is a battle within their own institution. That is why the government has been wise to stay out of it, at least yet. Where this goes, and how it ends up now, will be determined by how the CJI responds.

Many of the cases in contention involve just the judiciary, like the medical colleges. What happens with them will matter, but only to the stature and respect of the judiciary. But there are others involving high politics. That is where Chief Justice Dipak Misra’s wisdom and judgement will be on trial. How he exercises that over this very long weekend will determine whether or not it is business as usual Monday.

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  1. Shekhar, this is the first article of yours I have read where I did not end up any wiser at all ! You have to take a stand on whether the press conference, which has damaged the top court the most, was the only resort available for course correction. The First Estate (I consider Judicial Review over and above the Legislature) going to the Fourth Estate ! For a ‘turf war’ ? what precedent are they setting ? Why did they not resign rather than going to press? Even if the CJI is wrong as they allege, the ‘due process’ must have been followed by these judges.

    There is an Arab saying: ‘a camel is a horse made by a committee’. Our justice system is a camel anyway – and must be so because the ‘check and balance’ is the founding principle of a just democracy. Whatever little horse-ship is left with CJI, must not be taken away. If the judges do not like the heat, they should have gotten out of the kitchen rather than argue on the minor issues of pepper and salt.

  2. Dear Sir,

    1.I am a reader of National Interest since you started writing the column in the Indian Express;sometime in 1995.I even remember, vaguely the note on the first page of the Indian Express,highlighting the start of a new column.An Editor writing about National Interest? It was,(the title) a touch bordering on hubris for me then.

    2.Today, the one column I refuse to miss reading for anything is this one.That also tells you as to how credible you are today,in the midst of unbearable partisan cacophony.

    3.Yes,the CJI and his brother/sister Judges can rise up to the occasion,and use this crisis to take,sagely, defining,transformative decisions,making our democracy,and faith in our judiciary stronger.

    3.Recently,we had reports of of our former Chief Election Commissioner moving into an old age home.That reminded me of the chaos he created for the political class when he was the CEC,the legal battles that ensued,and the credibility and strength of the multi member Election Commission today.(Despite the recent mishandling of the Gujarat dates)

    4.For me,the Election Commission analogy is more pertinent.

    5.The bigger challenge is that that the media machines,the what’sup warriors have already let loose their venom.
    Stand up with the CJI hashtags have sprung up;blatantly false messages floated already. One egregious example is that Justice Chelameswar was against NJAC!

    6.I am optimistic that the CJI and his fellow judges will keep aside personal egos,partisan politics,and do what is right for the country.

    Yours as ever,
    Colonel Sekhar

  3. “… they aren’t dealing with a case involving the government or its dominant leader.” What about Justice Loya’s death? such “omissions of convenience” do not befit a senior journalist like you.. have some shame, the nation is in crisis. Surely you can see that.

  4. This is same secrecy or silence which had been saving corrupt or pliable judges. Collegium is also a “save ourselves club” who wants to do everything hush-hush and do not want to face any scrutiny in the name of freedom. Constitution makers didn’t make Collegium but they themselves institutionalise it and called it basis structure.It is Good for judiciary that this division is in public, it will help them reform.That is what we hope.

  5. Modi should refrain from copying IndiraGandhi.Hedoes not have that calibre.Whatever has happened Modi/BJP havesown the seeds for such outcome.Whole country is watching their DEMOLITION game one after another.Demontisation has already demolished BANKING and it the turn of JUDICIARYnow.

  6. I think the four senior judges have been very fair, patient, understated. Two others have come forward in solidarity. Doubtless, among those who have not indicated their minds, it could be an almost even split. The most hopeful portent is the promise that it will be business as usual on Monday morning. Had the four judges said they could not possibly work in such a stultifying atmosphere, we would have had a full blown crisis on our hands, one the government could not have ducked. 2. The CJI retires in October. Each judge has his own temperament. What is being agitated at the moment is the administrative prerogative of constituting benches and assigning cases to them. The good judges are simply requesting that it be done in an impartial manner, along well set conventions and precedents. No forum shopping, to put it very candidly. That is not a difficult proposition for any CJI to concede. That should be the agenda for the weekend. 3. What if the weekend is not productive ? That press conference was also a call to arms. Great wisdom if those possibities are not explored. There are some compelling takeaways for the government as well. It would be gracious to drop the MoP obstruction. Let the collegium improve upon its existing procedures, as seems to be happening.

  7. Why don’t these four judges complaints to the President of India before coming to Public. Have they lost confidence in the Constitutional authorities. If yes, then India democrace have all the right to lost faith on these four milord

  8. तीन साल पहले तक देश की न्याय व्यवस्था सर्वश्रेष्ठ थी। हर गरीब को न्याय मिल रहा था।

    निर्दोष जेल से बाहर और अपराधी अंदर थे।

    1984 के दंगा पीड़ित हो, या भोपाल गैस कांड के विक्टिम, जेसिका, आरुषि सबको न्याय मिल रहा था।

    अभी अचानक देखो कैसे न्याय व्यवस्था चरमरा गई।

    कुर्सी का खेल

  9. कोंग्रेसी पूवॅ मुख्यमंत्री वीरभद्र सिंह कि बेटी हाईकोर्ट कि जज, हामिद अंसारी का बेटा फिरोज अंसारी जज, पूर्व मुख्यमंत्री गागोई का बेटा सुप्रींम कोर्ट का जज, पूर्व सुप्रींम कोर्ट का मुख्य न्याय़ाधिश ठाकुर भी कोंग्रेश के नेता का बेटा है

    कोंग्रेस की औलादों से भरे पड़े है मिलार्ड

  10. अब एक जज है जस्टिस गोगोई – ये असम का है और असम के पूर्व मुख्यमंत्री केशब चंद्र गोगोई का पुत्र है, केशब चंद्र गोगोई कांग्रेस के मुख्यमंत्री हुआ करते थे, और ये जज साहेब कोंग्रेसी मुख्यमंत्री के पुत्र है और इन लोगों के साथ घूम रहा है शेखर गुप्ता जैसा अफ़ज़ल प्रेमी, अवार्ड वापसी गैंग का कुख्यात पत्रकार, और ये लोग कह रहे है की देश का लोकतंत्र खतरे में है, भैया 2018 का साल है 2019 में चुनाव है, अब ऐसे सभी लोग सामने आते रहेंगे, क्यूंकि 2019 में कांग्रेस को चाहिए सत्ता इसल

  11. Why should CJI spend time on a issue which has ‘ulterior’ and ‘Anti-India’ motives. Timing of these press-conference is very crucial. These four judges have made the press-coneference just after CJI has re-opened the 1984 sikh riots case. These four persons want to protect congress

  12. In case of Justice Jasti Chelameswar, one of the prime movers in the revolt against CJI Dipak Misra on Friday, it was non-adherence to seniority in elevation to the SC as a judge that robbed him of the chance of becoming the CJI.

    Justice Chelameswar was appointed as an HC judge on June 23, 1997, which was after the appointment of CJI Misra and his immediate predecessor Justice J S Khehar. Justice Misra was appointed as an HC judge on January 17, 1996 while Justice Khehar was appointed on February 8, 1999. But Justice Chelameswar became chief justice of Gauhati HC on May 3, 2007, much before Justice Khehar (November 29, 2009) and Justice Misra (December 23, 2009).

    However, Justice Chelameswar’s seniority advantage of more than two years over Justices Khehar and Misra was nullified by the then collegium, which appointed Justice Khehar as an SC judge on September 13, 2011, nearly a month before Justices Misra and Chelameswar took oath on October 10, 2011.

    Fate again played a trick with Justice Chelameswar as he took oath after Justice Misra, the latter, thus, becoming senior to him.

    If seniority had taken its course, Justice Chelameswar would have taken over CJI on January 4, 2017 after the retirement of then CJI T S Thakur; ie, before even Justice Khehar, who was succeeded by Justice Misra on August 28, 2017.
    With the collegium, along with destiny, deciding otherwise, Justice Chelameswar has never refrained from articulating his gripe about the games played in the collegium as it selects people as judges of the SC and HCs.

    He had put this angst on record in his dissenting judgment as part of the five-judge bench, which by majority had quashed the NJAC which was meant to end collegium’s monopoly in the appointment of judges of HCs and SC.

    So coming to the main point….If CJI Dipak Misra resigns or gets removed today Chelameswar will succeed him.

    Point to be noted my lord.

    FACT OF THE MATTER IS THERE 7-9 STATES GOING FOR ELECTION. Congress is loosing one by One- They tried the JIGNESH CIRCUS- NOW JUDICIARY- ALREADY SOWED THE SEED-NEXT WILL BE DEFENCE ( British ruled Indi with just 20000 officers- and with the help of 2000000 police&Military- Congress Will try new trick and again fail- CORRUPT MEDIA IS BEHIND THIS ALSO

  14. Whether you like it or not it has become political. Your article has a lot of loaded messages. You all may be trying to trip Modi Govt. But people are seeing through your game plan. Many still remember how Shekhar Gupta was ripped apart by Shazia Ilmi on a panel discussion in NDTV calling him a power broker. Less said the better.

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