By
K. Raveendran
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 Bhagawati, for instance, left an indelible legacy by
pioneering public interest litigation, which opened a new chapter in the
history of Indian judiciary in taking justice to the common man. Similar in
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 K G 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 of 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 a 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.
There
surely needs clarity 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. (IPA Service)
The post Need For Clarity On What’s Not Routine For SC appeared first on Newspack by India Press Agency.
