Productive dissent

In an unprecedented show of dissent, four of the senior-most judges of the Supreme Court of India J Chelameswar, Ranjan Gogoi, Madan B Lokur, and Kurien Joseph held a press conference at the official residence of J Chelameswar on Friday and informed media persons that there were serious differences between them and the Chief Justice of India (CJI) Dipak Misra, over the allocation of cases, which they said were being arbitrarily allocated to select benches. They also said that such a practice jeopardised the democratic moorings of the nation and if they did not take the extreme step and inform the people about the anomaly, they would regret it after 20 years for not having spoken up when the institution was drifting away from the set norms. Curiously, the cases that these judges mentioned in the press conference included the one related to the death of CBI judge BH Loya. On Thursday, a bench led by CJI had assigned a PIL seeking a probe into the death of BH Loya, who as a special CBI judge was hearing the alleged fake encounter case involving Sohrabuddin Sheikh and others, to a bench headed by Justice Arun Mishra. A day after the four SC judges expressed their dissent against the CJI over the allocation of cases to select benches, senior advocate Dushyant Dave has alleged that Arun Mishra has close relations with the ruling party and top politicians. A day after the press conference, the four dissenting judges appeared not to press their allegations any further and sounded reconciliatory. Justice Ranjan Gogoi, who is next in line to become the CJI in October this year, said there is no crisis in the judiciary and J Chelameswar said that they have said what they had and it has been heard out by all concerned. The remedial measures will follow and such an unsavoury incident will not happen in the future. That four top judges of the Supreme Court will come forward and speak against the CJI levelling serious allegations was not only unprecedented but also unthinkable, given the insulated character of the Indian judiciary and the unity of the legal fraternity in safeguarding their freedom. There have been few examples in the history of the Indian judiciary when this insularity and unity was breached. Few people ever spoke against a judicial decision or a judge without inviting the provisions of contempt of law. But here, in this case, four top Supreme Court judges, including one in line to be the next CJI, did precisely the same. And, this would not invite any contempt of law provisions. This is why, this singular move by the top four Supreme Court judges grabbed media headlines and rattled both the judiciary and the government like never before, with both trying hard to find their role in resolving the crisis. The government was quick to wash its hands off the controversy, saying the matter was an internal issue of the judiciary. But, these four judges and the CJI together form the judicial collegium, which appoints judges in the Supreme Court and the High Courts in the country. Now, that four members of the collegium have expressed serious differences with the CJI, to what extent will the recommendations of the collegium will hold legitimacy? The Parliament had unanimously passed a law to set up National Judicial Appointment Commission for the recruitment of judges for the higher judiciary but the Supreme Court had struck down this law in 2015 and thereby retained the monopoly to appoint judges in the higher judiciary. Now, the government is likely to use the current turmoil to seek a role in the appointment of judges in the higher judiciary. The judiciary has an exalted position in the Indian democracy and it has very well lived up to people's expectations of a clean and enlightened mechanism to articulate what is constitutionally right or wrong, no matter whether the matter has been brought by the public or the government. In fact, the government is the biggest litigant in the country and responsible for unduly overburdening the judiciary leading to a high pendency of court cases. The government needs to rationalise the laws and see to it that the courts have the necessary infrastructure and just enough government litigations to deal with. At the moment, the large number of court cases has clogged the judicial system, affecting its capacity to deliver results. This, coupled with the insularity has given rise to frustration and helplessness. Do we remember the previous CJI TS Thakur breaking down in front of the Prime Minister at a function while talking about the overworked judiciary and the ever slackening faith of the common man in the judicial system? The four judges coming out of their closet and recounting their grievances is not a bad sign. After all, we all are part of the same democracy that we want to strengthen. And, adequate communication among the key institutions and also with the people, is a must for an environment free from misunderstanding.