Friday, 10 July 2020

Supreme Crisis in the Supreme Court

Updated: January 25, 2018 10:49 am

On January 12, four of the top five Justices in the Supreme Court broke with decades of tradition and held an unprecedented press conference to accuse the Chief Justice of India, Dipak Misra, of improprieties regarding the assignment of sensitive cases to benches of the Court. Justice Chelameswar, the second most senior Justice of the Court, led the charge, and was joined by Ranjan Gogoi, M B Lokur and Kurian Joseph.

Former Chief Justice T.S. Thakur spoke out against the press conference – questioning the utility of the press in resolving internal procedural issues in the court, and slamming the unprecedented and unproductive move of turning “matters relating to administrative, business and judgment side of the top court” into a political circus.

Meanwhile, the Supreme Court Bar Association held an emergency meeting, during which they called for a compromise between the parties. They suggested all pending PIL cases be handed by either the Chief Justice or one of the defectors.

However, the dissenters claimed to be holding the press conference under duress. They claimed that Justice Misra was subverting the impartiality of the Supreme Court by handing “sensitive” cases off to “junior” Justices – name checking Justice Arun Mishra, the 10th most senior judge in the country, as an example. This was then called “a grave danger to democracy”. Justice Gogoi even referred to the conference as one discharging a “debt to the nation.”

Yet it is unclear what duty the dissenters were referring to. No previous Justice or group of Justices has ever felt compelled to hold such a press conference.The substance of the dissenter’s complaints was vague and contained no specific instances or complaints – instead focusing on the vague accusations of impropriety and “arbitrariness”.

After probing from members of the press and the legal fraternity present, the dissenters mentioned pending PIL’s regarding the death of Judge Loya were related to their concerns. On Friday the dissenters had demanded that the Loya case, due for a hearing on January 15, be reassigned. When Chief Justice Misra refused to do so, they decided to hold the controversial press conference.

The Loya case refers to a petition before the Supreme Court requesting a full, independent investigation of the death of Judge Loya of the Bombay High Court. Thetiming of Judge Loya’s death, in the middle of the Sohrabuddin Sheikh encounter case, has been considered by some to be suspicious. Two PIL’s were filed requesting an independent investigation into the death – one before the Mumbai High court, and a second before the Supreme Court. The second was to be heard by the Supreme Court on Monday, and Chief Justice Misra empaneled a bench of two Justices to hear the case, under Justice Arun Mishra.

The Loya case has been subject to several allegations of political machinations – both in the disposition of the Sohrabuddin Sheikh case afterwards and in the institution of a second PIL in the Supreme Court. The dismissal of charges against Amit Shah in the Sohrabuddin case in particular has been the subject of accusations and speculation. Meanwhile, the institution of the second suit before the Supreme Court has been viewed as motivated to undercut the hearing before the High Court.

While none of these allegations have been proven, the concern of the dissenters regarding this case specifically suggest they have already made up their minds. Whether this will permit them to make unbiased assessments of the facts remains to be seen.

The Justices have remained mum on their motives – claiming the conference was an act of patriotism, nothing more. However, others have speculated on less savory motives behind the press conference. The most common allegations are of partisan political gamesmanship. Opposition party members were quick to associate themselves with the defectors. CPI leader D. Raja visited Justice Chelameswar shortly after the conference for briefing on the situation, while Rahul Gandhi demanded that the senior most Judge hear the Loya case himself.

The political angle to the conflict has been the most discussed, and is a compelling argument. Yet others have alleged that Justice Chelameswar’s personal ambitions may be behind the move. Justice Chelameswar is the longest serving Justice on the court – having been appointed to the High Court two months before Chief Justice Misra and being appointed to the Supreme Court alongside the same. However, since Misra took the oath of office before Chelameswar, he became Chief Justice upon former Chief Justice Khehar’s retirement.

Of course, the Loya case itself may be part of the equation on its own. The allegations of improper assignment of the case, when considering the Chief Justice’s role as Master of the Rolls, seem to suggest a tangential complaint. Then, there is the eleventh-hour request for a change in panel, and what would seem to be an overreaction to a reasonable denial. This would suggest that the four dissenters have their own opinion of the case, and are worried that the judgement may go another way.

Whatever the motivation of the dissenters, the conflict among the five top judges in the country has not died down. While the business of the court resumed on Monday, trouble is still brewing under the surface. On Monday, it was announced that a five-justice constitutional bench had been formed to look into several key cases over this session of the court. This bench will be headed by CJI Misra, and contains none of the dissenter’s justices. Instead, it includes Justice A K Sikri, Justice A M Khanwilkar, Justice D Y Chandrachud and Justice Ashok Bhushan.

This bench will be hearing a number of serious cases in the near future – including hearings on the validity of the penal law on adultery, which applies only to married man forextra-marital sexual relationships with married women; the bar on entry to the Sabrimala temple by women between the ages of ten and fifty years old; whether Parsi women retain their religious identity after wedding a man from a different religion; and the timing of a lawmaker’s disqualification on facing a criminal trial.

Afterwards, the January 15 hearing on the Loya case was postponed to January 16, allegedly due to the unavailability of one of the empaneled Justices. Justice Arun Mishra held chamber hours instead, and allegedly broke down at the ferocity of the accusations against him. Where the case goes from here remains to be seen, but the Court’s turmoil shows no signs of dying down.

By Akash Kashyap


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