Setting the approach
Can the approach of the Supreme Court be left to the subjectivity of chief justices?
Supreme Court chief justices leave their own imprint on the institution when they depart. Some of these are stamps of greatness, but there are also the good, bad and the ugly. Justice P N Bhagwati, for instance, left an indelible legacy by pioneering Public Interest Litigation (PIL), which opened a new chapter in the history of Indian judiciary in taking justice to the common man. Similar in a sweep to the class action suit in western democracies, he saw PIL as the means to empower the socially and economically disadvantaged population to seek justice. It continues to be so and several landmark verdicts have been secured through this route.
There have also been chief justices of the type of KG Balakrishnan, whose tenure was marked by a new low in credibility and transparency for the country's highest judicial institution when allegations of 'fixing' by 'agents' were rampant. Things had come to such a pass that the Supreme Court itself wanted an income tax probe conducted against the former chief justice and his family members for allegedly amassing properties disproportionate to their known sources of income. Balakrishnan was perhaps the only judge who blocked disclosure of the details of incomes and assets of himself and his close relatives in response to a request by an RTI activist. It was alleged that about 20 properties had been acquired by the judge's brother and two sons-in-law between 2005 and 2009 when Balakrishnan was in office. Since he enjoyed unbounded patronage of the then ruling establishment, he not only escaped the law but got rewarded with the chairmanship of the National Human Rights Commission.
While these are two extreme cases, a pertinent question is whether the approach of the Supreme Court as an institution can be left to the subjectivity of the chief justices. Leaving individual cases out, there has to be consistency and continuity in terms of the broad principles while dealing with the day-to-day affairs of the court. And these principles have to be set and followed in a transparent manner as well. This is a most worthy subject for the Law Commission to examine and recommend an appropriate system.
The approach in dealing with the case relating to the Ramjanmabhoomi dispute under two CJIs presents an interesting scenario. The bench under former chief justice Dipak Misra had in February last decided to strip down the politically-sensitive case to purely a land dispute, keeping out several extraneous issues. The bench, which took up the case regularly thereafter, turned down the demand to refer to a five-judge Constitution bench reconsideration of the observations in its 1994 judgment that a mosque was not integral to Islam, thus removing another hurdle and facilitating an early decision as public pressure mounted for an end to the long drawn out entangle. The court then adjourned the hearing to January 2019, but meanwhile, CJI Dipak Misra retired, paving the way for new incumbent justice Ranjan Gogoi to take his place and this necessitated reconstitution of the bench.
When the case came up before a bench headed by the new CJI, it adjourned the hearing to January 2019, but without fixing a date of hearing, saying an appropriate bench will fix it, marking a new approach of considering everything as a matter of routine. Justice Gogoi had already indicated his inclination to deal with issues only in a routine manner, ruling out any priority hearing for anything. But this, for all practical purposes, meant that the CJI was moving away from Dipak Misra's approach to expediting a decision. There was nothing wrong with the approach, except that it had an unintended consequence. Some interested parties had demanded that consideration of the case be deferred until after the Lok Sabha elections, which the bench under Dipak Misra had rejected. By sticking to the routine, the new bench has by default nearly conceded to the demand, which has taken the Ram temple issue into a new political narrative with its own implications. The prospects of delay have given the ground for the temple protagonists to get agitated and put pressure on the government to take recourse to other means, including legislation, to force closure to the riddle.
Even considering that political compulsions are beyond the scope of the court to consider and, therefore, it is justified in sticking to its own timelines, it leaves an important issue for consideration as to what should be the approach of the courts in situations that could involve immediate law and order problems, as is the case with the Sabarimala imbroglio. There has been a deluge of petitions seeking review of the constitutional bench's decision to allow entry to women of menstrual age to the hill shrine, the very concept of which is the exclusion of women of reproductive age. The court's decision to treat these petitions only as routine has led to serious law and order problems throughout Kerala, which is now burning as the state government enforced the right through a clandestine operation under the cover of darkness using two activists who are non-believers.
Clarity is needed on what would constitute a ground for the court to consider an issue out of turn as opposed to routine and this has to be explicit so that it does not differ from judge to judge or bench to bench.
(The views expressed are strictly personal)
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