Vexing questions before judiciary

Both the government and judiciary are entering a critical phase after a long hot summer. While governments slump into lame duck periods and exit, the judiciary knows no full stops —  it is sentinel qui vive. However, political winds constantly buffet judiciary and it is more evident now than ever.


Appointments to higher judiciary have been stalled far too long by the tug of war between the government and the collegium of five Supreme Court judges. They have not been able to agree on the ‘memorandum of procedure’ for over two years.  The government insists on its primacy in the selection of  judges, invoking omnibus issues like that of national security.


While the stalemate continues, a new development is the change in the complexion of the collegium after the retirement of Justice J Chelameswar who led his three senior-most brethren in the revolt against Chief Justice Dipak Misra. Now the five-member collegium will include the CJI, the three rebels and the new entrant Justice A K Sikri. How this will change the chemistry will be known only at the next sitting of the collegium.


Before the collegium judges left for the long vacation, they had swept under the carpet the thorny issue of the elevation of Chief Justice K M Joseph of the Uttarakhand high court to the Supreme Court. He had quashed the President’s rule in Uttarakhand and the government is seen to be revengeful for that loss of face. The government has unconvincingly argued that considerations of seniority, regional and community representations stood in his way.


If the collegium sends a file suggesting a name to the government and it is returned without approval, the collegium has the last word and its recommendation should be accepted by the government. But the judges have dithered and preferred to take a holiday. Before they left they added a new conundrum: Joseph’s name was bundled along with four new names. Now the speculation is whether all of them will be treated by the government as new proposals, which will give it a chance to reject Joseph once again. There have been other rejections as well in the meantime. The judges’ stand will have precedential value.


A related subject is the choice of the new CJI. According to convention, the outgoing CJI recommends the senior-most for the post. Since Justice Ranjan Gogoi is the senior-most, normally he should be recommended. But he was among the rebel four who raised voice against CJI Misra. Will he or won’t he? In the present miasma, unthinkable theories are floating around.


There are plenty of other imponderables. The five-bench constitution bench presided over by the CJI is expected to deliver its decision on whether the Ayodhya case has to be referred to a still larger bench. The appeal has been reduced to a property dispute, shorn of all other aspects. It is most unlikely that even the ownership of the disputed land would be settled before the next General Election. Politics, not law, will take its own course.


The uncertainty is attributed to the way important issues are clasped by the CJI’s bench and heard at snail’s pace. The Aadhaar case took over four months and 38 sittings to conclude. The CJI has kept before him more heavy constitutional cases. In the 30 ‘regular hearing’ days available before his retirement, he has to rush at fictional speed to finish them. If he attempts that, there could be allegations of justice being buried in a hurry. There could also be repeat performance of colleagues writing against the presiding judge for not giving time to formulate their viewpoints.


Some of the nettlesome issues which only the Misra bench would handle include the disqualification of charge-sheeted legislators, LGBT rights and women’s entry into places of worship and what happens when one bench insists that another bench disregarded law and vice-versa. The list is too heavy for the collective shoulders of one bench.


The court also takes unreasonable time to deliver judgments. Arguments on the powers of the Delhi government and the Lt Governor closed in December. If the court had delivered its judgment, the clumsy live-in in the reception lounge of the Lt Governor could have been averted. Some judges have left without even writing judgments in cases they had heard at length. One trembles to think if this would happen in the constitution bench cases.

Business Standard is now on Telegram.
For insightful reports and views on business, markets, politics and other issues, subscribe to our official Telegram channel