Less than three months since he took over as Chief Justice of India, and not even half-way into his tenure, it is safe to say that Justice JS Khehar has not covered himself in glory. For a judge whose judicial work gave the impression of one who worked with no fear or favour, his tenure as a Chief Justice has been disappointing so far, at least in the context of his administrative and institutional responsibilities as Chief Justice.
Although Justice Khehar’s collegium of judges (which recommends appointments) broke the “impasse” with the Government over appointments, it still faces much internal dissension and discontent over its choices. Justice Chelameswar may have ended his “boycott” of the collegium proceedings, but his strong dissent against its decision to not elevate Justices KM Joseph (of the Uttarakhand High Court) and Manjula Chellur (of the Bombay High Court) to the Supreme Court has exposed the divisions within the judiciary. So much so that another overlooked judge lashed out in an ugly, communal manner to Chief Justice Khehar in a letter.
The collegium has been opaque and unaccountable, and those shortcomings have come back to haunt it, more so since it was Justice Khehar himself who observed in a post-decisional hearing after the NJAC case that the collegium needed to be more transparent. The widely conflicting reports (such as this and this) over the collegium’s position on the Memorandum of Procedure for appointment of judges are also a clear indication of this opacity, and it’s disappointing that nothing has been done by the CJI to mitigate this, despite his own observations on transparency.
There have been at least two high profile instances where Supreme Court benches have changed almost midway through hearings. As per practice, a case is supposed to “follow” a bench of judges, or at least the senior most judge, unless some pressing circumstance prevents one or both judges from hearing it or they retire. This rule seemed to have been ignored in the ongoing cases against Vijay Mallya when the matter was suddenly placed before Justices Adarsh Goel and UU Lalit, about a year after it had been heard by Justices Kurien Joseph and Rohington Nariman. No explanation was given and the new judges themselves were surprised at having to hear a case they had no background to, and one which had gone some distance in hearing.
Likewise, the combination hearing the Babri Masjid demolition case was changed over the intervening Holi holidays. The matter, which was being heard by Justices PC Ghose and Nariman, was placed before a bench of Justices Ghose and Deepak Gupta. This having followed wide reporting of Justice Nariman’s adverse remarks against the CBI for its work in the case, raises uncomfortable questions. When it came up for hearing, Justice Ghose adjourned the matter insisting that Justice Nariman had to be on the bench hearing it.
The Chief Justice also being in charge of deciding the causelist and allocation of work to judges, these lapses point to a serious failure in the proper administration of the court.
Perhaps the biggest blunder that Justice Khehar’s committed thus far is in the handling of the complaint of Dangwimsai Pul against judges of the Supreme Court, based on a “suicide note” allegedly written by former Arunachal Pradesh Chief Minister, Kalikho Pul. As I’ve written before, this was a mess-up of the highest order and the responsibility squarely lies with Justice Khehar. The former chief minister’s wife had filed for administrative action against two senior judges named in the suicide note (that alleges corruption within the judiciary). The CJI’s decision to convert the complaint to a writ petition and place it before a Supreme Court bench was criticised by the complainant’s lawyer as an attempted “judicial burial”.
Even if a fair-minded citizen were to be prima facie unconvinced of the allegations against the senior judges contained in Pul’s suicide note, Justice Khehar’s subsequent actions may have planted seeds of doubt about their integrity in her mind.
Like his predecessors, Justice Khehar has allowed the Central Government to freely defy the Supreme Court’s order in the Aadhar case by delaying the constitution of a bench to hear this all-important case, more than eighteen months after the last order was passed. His ill-conceived utterances on the Ayodhya land dispute (at the instance of an interloper to the case, and without all the parties being present before him) probably made the parties less likely to settle the matter or even approach him for mediation. Not to mention the contempt proceedings against Calcutta High Court Justice CS Karnan which, far from disciplining him, threatens to become a media circus, making the Supreme Court look more foolish than stern.
Prior to his appointment, I had raised the possibility elsewhere that his independent streak might make the Central Government think of superseding Justice Khehar for the post of CJI. It didn’t happen of course and he was appointed as CJI. Unfortunately, his work as CJI has not exactly inspired confidence. The court appears weak in the face of defiance from government and judges themselves, incompetent in ensuring smooth and fair functioning, and of doubtful integrity in the face of serious allegations. One hopes that there is a turnaround before the institution is irretrievably damaged.
Alok Prasanna Kumar is an advocate based in Bengaluru, an Executive Committee Member of the Campaign for Judicial Accountability and Reforms and was a Senior Resident Fellow at the Vidhi Centre for Legal Policy.