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Making sense of the crisis in the Supreme Court

The crisis in the Supreme Court, triggered by the four senior Judges’ press conference on January 12, is now four days old, and shows no signs of early resolution. With the shadow of the press conference and its aftermath, the court began the second day of its working week, not knowing what lies ahead. The media is full of what went on during the tea meeting of the Judges on Monday.

One common refrain has been how Justice Arun Mishra, the judge presiding Court No.10, played an emotional card at the meeting, only to be mollified by the CJI Dipak Misra and his colleagues, including some of those who held the press conference on Friday. But the issues are far from resolution, and according the Attorney General, K. K. Venugopal, it would take two or more days for the feuding Judges to declare a truce.

But the five-Judge Constitution bench is scheduled to begin hearing the 8 cases listed before it from tomorrow.  Meanwhile, the bench of Justices Arun Mishra and Mohan M. Shantanagoudar heard the Judge Loya case on Tuesday, directing that the copies of the documents, furnished by the Maharasthra Government be shared with the petitioners. Although these two events are unrelated, but it does convey a sense of unease, as the CJI’s administrative decisions to assign the Judge Loya case to the Mishra-Shantanagoudar bench, and continue the old five-Judge Constitution bench to hear the 8 cases, keeping out the senior-most Judges, have come under fire from observers.

It is not clear what made the CJI, Dipak Misra to continue the same old bench of five Judges – himself, A. K. Sikri, A. M. Khanwilkar, D. Y. Chandrachud and Ashok Bhushan – to hear the 13 Constitution bench cases. The Aadhaar case hearing would have benefitted by the presence of Justices J. Chelameswar and S. A. Bobde on the bench, as they were part of the original three-Judge bench, which referred it to the Constitution bench. They were also part of the nine-Judge bench which declared the right to privacy as a fundamental right last year.  Excluding them from the five-Judge bench, therefore, does not make any sense. It is true that the five Judges, decided by the CJI, heard and decided the interim question of extension of deadline for enrollment under Aadhaar. But the substantive issue of constitutionality of Aadhaar raises far more serious issues, and those Judges, who were familiar with it from the beginning, could have been involved, as per convention.

Similar departure from convention also marks the CJI’s decision not to review his decision to assign the Judge Loya case to Court No.10. The challenge to the CJI’s decision to assign the case, as master of the roster, is met with the counter-question that if all Judges are equal, and if the CJI is only the first among the equals, then what is wrong if a case, considered very sensitive, is assigned to Court No.10, and why should anyone have the apprehension that it is headed for burial.

Indeed, the apprehensions only stand vindicated, with the Mishra-Shantanagoudar bench going ahead with the hearing of the case, despite objections from the counsel, that it would affect the hearing of the same case by the Bombay High Court.  Why did the bench agree to hear the petition seeking impartial probe into the mysterious death of Judge Loya, when the High Court is seized of the similar petition, is not clear.  Either the outcome of the case in the Supreme Court could make the High Court case infructuous, or if the High Court case is allowed to proceed, the Supreme Court has to keep the further hearing of the case before it on hold. Neither option is likely to advance the cause of justice.

Senior Advocate, Harish Salve told the bench that the documents are sensitive and confidential, and must not be shared with everyone. Considering that it is a PIL case, and the nation at large, has a stake in the outcome of this case, it is not clear how could the petitioners, who are just two private individuals, with no locus standi in the case, be privileged in gaining access to these documents, while keeping the rest of the nation in the dark.

It is this ostrich-like attitude to transparency, and an obsession with secrecy and confidentiality, for its own sake, even when situation requires openness, which has landed the Court in a crisis today. The four Judges, who had courageously held a press conference on Friday to inform the nation about arbitrary decisions of the CJI, as the master of the roster, feel constrained to reveal more, to avoid embarrassing the institution further. Did the four Judges achieve their objective? It would appear so, given the public discourse, it has led to.  Will the resultant public opinion in favour of broad-basing the CJI’s administrative decisions influence the Supreme Court and the CJI himself?  We may have to wait and see.

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