SC revolt: Let judges sort it out, not netas

It seems everyone had over-reacted to the unprecedented press conference that four senior Supreme Court judges held on Friday. The judges had stated their case quite carefully though the justification they gave about the danger to democracy and their obligation to the nation had its element of justifiable rhetoric. They did not reveal much, and they referred only to the issue of allocation of cases by Chief Justice Dipak Misra. They defined the function of the Chief Justice as being that of first among equals, and his right to set the roster doesn’t allow him to be arbitrary. On the third day, it seems that the rebellion that seemed to have shaken the Supreme Court of India turns out to be quite nearly the proverbial storm in a teacup. Justice Kurian Joseph’s statement to the media on Saturday  proves the case.

The liberal lawyers, the Congress Party and many other political critics and opponents of Prime Minister Narendra Modi jumped the gun, as it were, and saw a dark connection between the apparent collapse of the working of the Supreme Court and the right-wing politics of the Modi government. There were enough reasons for the anti-Modi camp to draw such hasty conclusions. Chief Justice Misra gave clear hints of his right-wing bias, especially in the judgment he delivered about making the national anthem in cinema halls mandatory, which has since been made conditional, and Justice D.V. Chandrachud made stinging remarks about wearing nationalism on one’s sleeve, which is a rebuttal of the Chief Justice’s argument in the matter. Interestingly, the Chief Justice was part of the bench which modified the earlier direction of the court. The error committed by the critics of the Chief Justice, and by implication of Prime Minister Modi, is that they saw the revolt that would bring about the reigning right-wing doctrines in the executive and the judiciary as the beginning of the end. The haste was uncalled for. The critics should have waited a little longer. It showed a certain desperation by the critics of the Prime Minister. It looked like that they have given up the possibility of tripping the Prime Minister on political grounds, and they were only too willing to cheer every little act which appeared to challenge the Prime Minister’s right-wing rhetoric and stratagems. It is the mistake that more than 40 years ago, the critics and opponents of Indira Gandhi had committed, clutching at every straw that promised to “expose” her authoritarian politics. She was finally defeated by the people in the general election of 1977 and not by her inveterate critics. Similarly, Mr Modi will be defeated by the people when they choose, and not by his ideological opponents.

That brings us to the question of whether Justices J. Chelameswar, Ranjan Gogoi, Kurian Joseph and Madan B. Lokur were right in what they did. It seems that they did so because they genuinely felt that the problem needed to be brought to public attention. There is little doubt that Chief Justice Misra’s refusal to respond to their concerns forced them to voice their protest in public. There is no need to impute any other ulterior motive to their move. Does it set a bad precedent? Perhaps it does. But they seem to have done it in the best interests of the Supreme Court, the judiciary and the country. Their rebellion has certainly helped in blowing away the meaningless opaqueness of how the highest court of the country works. It has been suggested that they could have protested constitutionally by writing to the President. There is no such provision. The President is the head of the executive and the legislature, but not of the judiciary, though it is the President who appoints the judges of high courts and the Supreme Court. It is possible for members of Parliament to meet the President and point to issues regarding the functioning of the Prime Minister, and of the governors in the states. But there is no provision for Cabinet ministers to complain to the President against the Prime Minister. This is much more so in the case of the judges of the Supreme Court. They cannot petition the President against the Chief Justice of India. They have done what could be done in the circumstances.

There is little doubt that Chief Justice Misra has somehow failed to provide good leadership in the Supreme Court, which means that he did not take his four senior colleagues into confidence. Let us remember that the other 20 judges of the court did not come out, but it is clear they did not endorse the manner in which the Chief Justice was dealing with the problem. That is why, as reported, they have called for a meeting of the whole court — that is of all the 25 judges — to sort out issues. The sin of CJI Misra is not his right-wing tilt but his failure to play it fair. He has been seen as being partial, excluding those who did not share his biases. It may be a misperception. But he has not done anything to clear the air. So it is for him to take the initiative and restore the unity of the Supreme Court of India.

There are real problems with the Supreme Court, and it goes beyond the allocation of cases by the Chief Justice. The court has to ensure that there is a real play of ideas and ideologies and dispel the notion that they have no biases and ideological biases. If Chief Justice Misra is a right-wing reactionary, he need not hide it. And the same freedom is there for the other judges as well. What is of utmost importance is that they argue their biases with jurisprudential rigour, and if their biases fail the legal test then they have to sacrifice their bias in favour of the rule of law. The functioning of the United States Supreme Court is a good example of the clash of conservative and liberal ideas within the constitutional framework.