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Ball in his Court – Rekha Sharma

Ball in his Court

Chief Justice of India must clear the air on the allocation of cases controversy

Written by Rekha Sharma | Published: January 24, 2018 12:30 am

Indian Express

The press conference held by four senior-most judges of the Supreme Court reveals, to quote Shakespeare, that “something is rotten in the state of Denmark”. It has been brewing for a long time and what happened on January 12 was an explosion.

The Chief Justice of India (CJI) and the chief justices of high courts enjoy absolute power in the matter of assigning cases to colleague judges. The nature of the power vested in them is susceptible to misuse and this precisely is what the four judges are insinuating against the CJI. They have alleged that cases of national importance are marked to preferred judges to secure the desired results. It appears that the judges who have revolted against the CJI were upset by the assignment of Judge B M Loya’s matter to Justice Arun Mishra, a junior judge.

The mere fact that Justice Mishra is a junior judge in the hierarchy of judges by itself is not a good enough ground to accuse the CJI of wrongdoing, unless there is something more to this than meets the eye. A junior judge is as much a constitutional functionary as his senior colleague. Both discharge the same judicial functions. Hence, by reason of seniority alone, one cannot claim the prerogative to deal with a particular case more so because it is perceived to be of public importance. Having said this, it appears that as a matter of practice and convention, the cases of so-called public importance are generally referred to senior judges. Since the CJI has seemingly deviated from this practice and as it has raised dust and storm, it falls upon the CJI to clear the air as to why Justice Mishra was preferred over his seniors. Earlier also, as reported, in an equally sensational matter, this very judge was preferred over his senior colleagues. Therefore, not only the CJI, all those who would like to see an independent and fearless judiciary need to look into the matter.

The CJI has preferred to maintain absolute silence. There is no word from him. A former CJI had once said that in certain matters silence is not an option. I believe this is one such case. The CJI cannot afford to remain quiet. The matter is too serious to be brushed under the carpet. It is a perennial issue and will surface again and again. Therefore, the CJI must speak out and do so loudly and clearly.

Of course, it was a sad day when four judges in their wisdom thought it fit to hold a press conference to air their grievances against the CJI. There can be two views on their action, but it would have been far better for the judges themselves, and also for the Supreme Court as an institution, had all the justices collectively resolved this unseemly controversy within the confines of the apex court. The press conference has done no credit to either side or the institution. Rather, it has dented the hitherto hallowed image of the Supreme Court.

However, as things stand now, the matter is out in the open leaving the CJI with little option but to give his version. We do need to hear from him. The entire matter is now in public domain. One side has given its version. The nation expects the other side to respond.

Just as every cloud, howsoever dark, has a silver lining, this controversy can, hopefully, also be seen as a precursor to change for a better and more transparent system. One way out of this embroglio can be that the CJI decides on the roster of judges in the beginning and middle of the calendar year, as is done in certain high courts, leaving little scope for alleged manipulation. Silence, sometimes, is neither golden nor the best option.