Wherever you stand on it personally, the decision of the four senior judges of the Supreme Court to go public with their discontent over the functioning of the Court was a watershed moment for the Indian judiciary.
Never before have judges held a press conference to raise concerns about the independence of the judiciary, to provide the media with a letter that says that cases have been assigned to judges without any rational basis.
The judges who have taken this extraordinary step – Justices Chelameshwar, Gogoi, Lokur and Kurian Joseph – are the other members of the Collegium apart from the Chief Justice of India, Dipak Misra. The events of Friday demonstrate stark differences of approval between them and the CJI, which has the potential to affect the smooth functioning of the Court going forward – certainly a cause for concern.
The legal fraternity are far from the only ones concerned, but the statements released by the various lawyers’ groups on Saturday – in particular the Supreme Court Bar Association (SCBA) – can help us formulate a few scenarios that could play out when the apex court resumes business on Monday morning.
Scenario 1 – Reallocation of Major Cases
The four judges have pointed out in their letter that “In the matter of the determination of the roster there are well-settled and time honoured conventions guiding the Chief Justice, be the conventions dealing with the strength of the bench which is required to deal with a particular case or the composition thereof.”
They believe that these conventions have not been followed in the allocation of benches for “cases (sic) having far-reaching consequences for the Nation and the institution”.
The SCBA issued two unanimous resolutions as their response to the situation. However, although they took no sides and urged the judges to resolve their issues in a meeting of the full court without outside interference, they also made a recommendation that if accepted, would benefit everyone involved, and go a long way towards addressing the concerns of the four senior judges.
The recommendation was that all PILs – which (despite mostly being frivolous) tend to address some of the biggest Constitutional and institutional issues in the country, such as the Aadhaar case or the petition to investigate Judge Loya’s death – should be heard only by the courts of the five senior-most judges of the Court (ie: the courtrooms of the Collegium judges).
The SCBA proposed using this method to not just deal with PILs going forward but also reallocate existing cases – which would mean transferring the Judge Loya petition to one of these senior courts.
Given that Justice Gogoi’s response at the press conference indicates that the flashpoint that forced them to go public was the assignment of the bench for the Judge Loya case, this could be a huge step towards defusing the situation.
The judges’ dissatisfaction with senior judges not hearing crucial cases would thereby be addressed, while the CJI would demonstrate that he had, as urged by Attorney-General, risen to the occasion and shown maturity and statesmanship.
It would also help reassure the nation of the unity among the judges, and allow all four judges to return to their courtrooms and conduct business as usual, as they stressed they wanted to do – and allow the CJI to do the same.
Scenario 2 – Prospective Allocation of Major Cases
At the same time, reallocating existing cases could be viewed as a lack of faith in the ‘junior’ judges of the Court who are hearing some of the major cases, such as Justice Arun Mishra, whose bench has been assigned the Judge Loya petition. Owing to the unavailability of the other judge on the bench, Justice MM Shantanagoudar, the case will not be taken up on Monday.
To avoid this creating further friction, a middle path would be to avoid reallocation of major cases, but ensure that all PILs and cases dealing with big-ticket Constitutional issues are henceforth assigned only to the five senior courtrooms. This would not affect the allocation of the Aadhaar or Judge Loya cases, for instance, which would continue to be heard by the benches already assigned.
While the concerns raised by the four senior judges in relation to existing big cases will continue to stand, this would at least show that the CJI is willing to return to the old conventions, and extend the olive branch.
Scenario 3 – The Stand-off Continues
The previous two scenarios are predicated on the CJI being willing to put aside any emotions he might feel about what has been termed by many in the media as a mutiny, even a war. While those words may be hyperbolic, there can be no denying that the CJI’s decision-making has been called into question, and that is surely not something anyone takes kindly to.
Indeed, soon after the press conference at Justice Chelameshwar’s house, the news went out that the CJI would address the media at 2 pm.
The exact chain of events isn’t clear, including whether or not the A-G’s private or public statements on the issue halted Justice Misra from replying.
The fact that the CJI has not confirmed his next steps, including whether or not he will convene a meeting of the full court to resolve the issue, means that it is possible he will stand his ground, and the stand-off will continue.
This would, of course, be detrimental to public faith in the judiciary, and perhaps beneficial to the executive, who have long been trying to get more of a say in judicial appointments.
In terms of the judiciary as an institution, this would be the worst possible scenario, as it would mean no unity in the Supreme Court, which is the bastion of our rights and freedoms under the Constitution.
Which Scenario Seems Most Likely?
Given that this whole thing is so unprecedented, it isn’t quite that easy to predict what will happen next. The dissenting judges have insisted that they expect things to be resolved, so has the Bar Council of India and the SCBA. Justice Kurian Joseph on Saturday expressed his confidence that their concerns would be addressed by the CJI, but at this point, we can only speculate.
The only insight we have of how things will proceed next week is the disconcerting news that on Friday, the CJI issued a circular listing several hugely significant PIL cases to also be heard by the Constitution Bench he has appointed to hear the Aadhaar matter.
The senior judges are believed to have had concerns that none of them nor the judges who had previously heard the Aadhaar matter were on this bench, which comprises the CJI, Justice Sikri, Justice Khanwilkar, Justice Bhushan and Justice Chandrachud.
Despite these concerns, the CJI has now also assigned to this bench the challenge to section 377 of the IPC, the Sabarimala Temple case (on whether it’s okay for the Temple to bar women between the ages of 10-50 from entering) and the petition asking for review of the adultery laws in the IPC.
Essentially, this means that none of the four senior judges will have anything to do with what are the most significant civil rights cases before the Supreme Court.
That doesn’t look like a great start to a reconciliation process.
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