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16 January, 2018

Judiciary faces a crucial test

BRP Bhaskar
Gulf Today

India’s Supreme Court, ostensibly the world’s most powerful judicial institution, is in the grip of a crisis following its four senior-most judges’ public disapproval of the manner in which Chief Justice Dipak Misra distribute work among the judges.

When the Constitution came into force in 1950 the Supreme Court had only seven judges and they sat together to hear cases. As the workload increased and the number of judges was raised, they began sitting in benches of two or more judges to hear and decide cases. 

The Constitution vests the power to appoint judges of the Supreme Court and the High Courts in the President. Since he acts on the advice of the council of ministers, the Executive enjoyed primacy in the process, although it was mandatory to consult the Chief Justice of India in making appointments to the apex court and the Chief Justice of the high court concerned in making appointments to that court.

Between 1982 and 1998, the Supreme Court, through three judgements, arrogated the right to select judges to a collegium comprising the CJI and his four senior-most colleagues. The deep division in the polity having weakened the Executive and the Legislature, they had no option but to accept the situation. The Executive’s role in the appointment and transfer of judges became one of passing on the collegium’s decisions to the President as its own recommendations. 

In the process India earned the dubious distinction of being the only country where judges appoint judges. Several eminent jurists said this was not a happy situation but successive CJIs and their senior colleagues were keen to preserve their newly acquired clout.

The Manmohan Singh government planned to amend the Constitution and enact legislation to abolish the court-mandated collegiums and create a National Judicial Appointments Commission to select judges. However, it could not complete the process. 

After the change of government in 2014, Prime Minister Narendra Modi picked up the thread and Parliament passed the NJAC Act. However, the NJAC could not be brought into being as the CJI, who had a key role in it, refused to cooperate. 

The Supreme Court subsequently struck down the NJAC Act as unconstitutional by a 4:1 judgement and restored the collegiums. Justice J Chelameswar, the lone dissenter among the five judges who heard the matter, criticised the collegium system for its lack of transparency. Later he stayed away from collegium meetings. That held up judicial appointments and forced the Court to reform the system. 

Last November a bench headed by Justice Chelameswar heard a petition seeking the setting up of a special team to conduct court-monitored investigation of alleged bribery involving the Medical Council of India. The Central Bureau of Investigation arrested a retired Odisha high court judge in one of the MCI scam cases.

According to the first information report filed by the CBI the ex-judge had assured the management of a private medical college, which had been barred from making fresh admissions as its facilities were substandard, that the Supreme Court would settle the matter in its favour. Justice Dipak Misra had headed the bench which heard all MCI scam cases.

Against this background the petitioner pleaded that Justice Misra should not be part of the bench which hears the matter. Justice Chelameswar referred the matter to a five-judge Constitution bench. 

The next day Justice Misra asserted that as the CJI he was the master of the roster and it was his sole prerogative to decide which bench should hear a case. He nullified Justice Chelameswar’s order and constituted a new five-judge bench to hear the petition.

Another issue that prompted Justice Chalameswar and the other senior judges to air their differences with Justice Misra publicly was his practice of bypassing them and referring sensitive political cases to benches headed by junior judges. At a press conference one of them conceded that the assignment of a petition seeking probe into the death of CBI court judge R H Loya to a bench headed by Justice Arun Mishra, a comparatively junior judge, triggered their protest. 

Loya was hearing a fake encounter case in which Bharatiya Janata Party President Amit Shah was an accused. His sister said that before his death he had told her of a bribe offer of Rs 1 billion for an order favouring Shah.

The differences between the CJI and his colleagues have a bearing on the administration of justice. The way it is resolved will determine whether the apex court can function without external influences.

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