An Alleged Judicial Crisis on Swami Vivekananda’s 155

Two months ago, Judges 2-3-4-5 of the Indian Supreme Court wrote a long letter to the Chief Justice, complaining of assignment of Benches without any rational basis. Last Friday [*January 12, 2018*], The Judges called a Press Conference, irreversibly provoked by the Bench chosen by the Master of the Roster [The Chief Justice of India], to hear a plea seeking an independent inquiry into the sudden death of Special CBI Judge, B.H. Loya. The Four Justices questioned the integrity of not only the Chief Justice, but also by implication, of their junior colleagues [Do we have justiciable evidence against CJI Dipak Misra”, The Indian Express].

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Alok Prasanna Kumar found the insinuation of the Press Conference “clear and hard to miss” – “the CJI is picking and choosing benches to hear sensitive cases with no obvious reason, raising doubts about his intentions in the matter” [The battle for the soul of the Supreme Court has just begun”, The Print].

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Nikhil Mehra reasoned that Pandora ought not to put the lid back on her box; the Supreme Court “cannot shut the door on an interested public again“. He went further to suggest, “it would be hypocritical for Justice Chelameswar’s group to claim that the solution is merely to correct the ways of a seemingly errant CJI and to return to matters as they were” [SC Judges revolt: Apex Court reaping ill benefits of an opaque collegium system it gave unto itself”, Firstpost].

Harpeet Singh Giani offered the ‘truth’, “the Chief Justice of India has arrogated into his hands personally, all judicial, executive and political power in this country. He has cobbled together an unholy network of authority based on selective reading of suspect precedents, and usurped the authority of the parliament to legislate, the authority of the law enforcement agencies to function, and the ability of the executive to govern. The Fantastic-Four have thrown down the gauntlet for all Indians. Having given their life to the cause of justice, they have told us in so many words that the situation is beyond their control” [Judges Press Conference: We Indians are a cynical lot”, Bar and Bench].

Dushyant Arora thus defended: “To those saying ‘don’t wash dirty linen in public’ I want to say the judiciary belongs to the public and is no one’s linen. In any case, I would much rather wash dirty linen in public than die of infections arising from continuing to wear dirty clothes” [Justice League: Judges step out of their comfort zone for nation’s sake”, Mumbai Mirror], even as Don Harish Salve reminded us that “in his long years of practice he has seen such bouts of tensions from close quarters… But, those were always resolved within closed doors among the bench” [“SC Judges’ rift with CJI: Is Opposition trying to impeach Dipak Misra by fuelling drama around revolt”, Firstpost].

Alok, Nikhil, Harpreet, Dushyant are only 4 of the erudite young lawyers who put pen to paper.

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Come January 15, 2018 [Monday, Yesterday] Judges 2-3-4-5 duly returned to their courtrooms. Despite the ‘unprecedented’ Press Conference, there was no change in the composition of the Bench hearing the petition seeking independent probe in to Judge Loya’s Death.

Lord Hoffman had said once on the Strict Liability Rule, “It is perhaps not surprising that counsel could not find a reported case since the second world war in which anyone had succeeded in a claim under the rule.  It is hard to escape the conclusion that the intellectual effort devoted to the rule by Judges and Writers over many years has brought forth a mouse.”

Indeed, the academic effort devoted to analyzing the events of Friday brought forth a mouse.

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True to tradition of the Organized Syndicate of the Judiciary, if CJI Dipak Misra continues to pick Benches of his choice, we shall expect further allegations of ‘desired outcomes’, at least till late September, when the obituaries of his tenure would start to write itself.

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One would hope there is no further spectacle or a judicial resignation before Judge 3 – Hon’ble Justice Ranjan Gogoi – becomes the next Chief Justice of India in October, 2018.

When Justice A.N. Ray was offered the Chief Justiceship and he had enquired of the Law Minister how far would the apple fall below him if he ‘declined’, the Minister had speculated, ‘way below’. It was only obvious that 2-3-4 of that era would not have it.

But iff we are to witness a Supersession of Judges again… this time, with all the cameras glaring, we would know whether the Bench buckled.

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