Preferred and appropriate

Sushil Kutty

It was a gritty court saga out in the open. For the journalist a seemingly impossible heist given to him on a platter even if the limelight was for the four judges alone. But at the end of the day, the January 12 press conference turned out to be an exercise in futility. Nothing changed even after the beans were spilled. Justices Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph stuck their neck out, and for what?
The Judge Loya case – what prompted the puisne judges to hold the unprecedented presser – went to a bench without any of them on it. And now any Tom, Dick and Harry could leave a comment on happenings in the Supreme Court and get away with it. It could not be that the press conference was to invite intervention from people at large, definitely not. But it did pave the way for politicians and political parties to fish in already muddied waters. 
As it happened, within minutes of the four senior judges going public, CPI leader D Raja’s car, with him in it, was cruising streets in the vicinity of Justice Chelameswar’s Tuglaq Road residence. And late that evening, Congress President Rahul Gandhi asked for a probe into Judge Loya’s “mysterious” death. Wouldn’t that be seen as preempting a Supreme Court decision because the two petitioners in the case were demanding just that, a probe? The allegation that the Chief Justice of India Dipak Misra was misusing his “master of the roster” power to allot cases to “preferred benches” was linked to the Loya case. But post the presser, the case has not gone to a “preferred bench” of the four judges but to an “appropriate bench” of the CJI choice. Now, if that was not poetic justice, what is?
Justice Arun Mishra who, with Justice Mohan Shantanagoudar, heard the case on January 16 did not have to recuse himself. The case was taken out of his hand as he knew it would be. Was it coincidence that the “appropriate bench” turned out that of the CJI? If anything the presser accomplished, it was to complete the circle. What can be better than a “preferred bench”? The answer is an “appropriate bench”!
Talking of appropriate, the jury is still out on whether the decision to hold the presser was appropriate or not. Opinion has been divided: Courageous and brave, even needless bravado. Dolts and the dumb and the dumber now know what puisne means – a judge inferior in rank to the chief justice. And a preferred bench carries with it the connotation that it could be an inferior bench. A petitioner at the end of 25 years of litigation, at the final threshold, would be on tenterhooks, worried whether his fate would be decided by a bench of seniors steeped in wisdom or juniors markedly inferior, for like the man said, “after the Supreme Court, only the Almighty, and that only when counted among the departed!”
The presser has been linked to the festering question of selection of judges and the independence of the judiciary. Political overtones and executive interference have coloured the narrative. The presser gave chance to all these to interplay, prompting media butterflies and legal genius to give their two pence’s worth. Certificates of the impeccable character of the four judges were waved even as that for the CJI was waived, dismissed with the feeling, what good would that do? Everybody knew the CJI, the kind of man he was, no need to discuss and dissect.
A couple of years ago a CJI wiped tears off his eyes as he stood at a podium and lamented the shortage of judges in the judiciary, and how it was a burden the judiciary could not shake off for the love of mic! The tears were shed in the presence of Prime Minister Narendra Modi compelling him to speak when he was not scheduled to address. But two years hence, the shortage of judges has remained a matter to tear apart with the Supreme Court itself short of judges by a headcount of six.
That was a CJI’s frustration spilling from his eyes. But a tearjerker that came after the January 12 presser was of Justice Arun Mishra breaking down in front of his brother judges, apparently for being ruled and rendered incompetent at the presser. What makes one judge or more than one judge wiser than another or other judges? No number of impeccable character certificates can set out the difference between the one and other in terms of grey cells. Judges don’t fill in applications to apply for the post, they do not sit down for a written test nor do they stand up for a viva voce; none of them is subjected to an intelligence quotient test; genius at the level of Supreme Court cannot be measured at the time and date maintained in the register at the gate of entry.
Sadly that is how seniors and juniors are broken down in the Supreme Court. The January 12 press conference broke these and other hidden secrets down for the hoi polloi and when the four judges are all retired and gone all that they will be remembered for will be that they made a brother judge cry. Unless, Justice Ranjan Gogoi, when he becomes CJI, does what the four of them sought to accomplish with the unprecedented press conference on the lawn. (IPA)

Tuesday, 30 January, 2018