The Judicial Jumble.

There had been an institutional crisis brewing in the Supreme Court of India and it came to the fore only recently.

On the 12th of January, the four senior-most judges of the court (also known as the collegium) held a press conference during which they expressed concern about the manner in which the court was being administered and they made public a letter which they had written to the Chief Justice of India Dipak Misra almost two months back. The act of addressing the nation directly was unprecedented and the fact that the senior-most judges were speaking in a single tone against the highest judicial office bearer of the land became a cause for concern.

Now a lot has been written about the political, social and contextual setup of the incident, none of I wish to repeat and much of which can be read here and here.

What I will focus and expand upon here is the institutional aspect of the crisis, which is essentially the primary reason behind all that is happening and which isn't actually being discussed to the extent that it should be.

The Chief Justice of India's main task is often referred to as "the master of the roster", a power vested in him which is at the heart of this crisis. What is essentially means is that the Chief Justice gets to decide which cases would be heard by the court on a particular day and who are the judges who would together comprise a 'bench' and hear these cases and pass judgements. While in theory this should pass off as any routine, administrative task, this isn't the case in India at all. The reasons? The huge backlog of cases that the court is dealing with as well as the ever expanding ambit of the issues that the court takes up for hearing and review.

To give a perspective, this model of the Chief Justice acting as the master of the roster isn't an exception and in fact most functioning democracies across the world follow versions of the same for efficient conduct of their highest courts. But certain subtle differences remain. Let's take the US or the UK supreme courts for example wherein the entire panel of it's nine judges sit together and 12 judges sit in benches of 5 or more judges respectively to hear a case. The Chief Justice of the US supreme court has no discretion on which judge hears a particular case and in the case of UK, having five or more judges in a panel brings a lot of moderation and variety to it so as to not allow partisanship prevail, unlike India where we have benches of two judges and even a single judge forming a bench at times. Let me explain further.

1. Firstly, no matter how much one dwells upon the fact that the court would pass similar judgements irrespective of the judges comprising the benches, all human beings are opinionated and legal texts and laws and always open to interpretation. this is where an issue arises because if a particular bench is composed of judges whose previous judgements make it clear that they hold a particular view on a particular subject, then one can more or less even predict what the outcome of a similar future case from the bench would be. Hence, the routine administrative task of deciding the composition of benches actually does endow massive power in the hands of the Chief Justice.
2. Secondly, the discretion of the Chief Justice in getting to decide which cases the court would take up for hearing on a particular day and which ones it wouldn't is of immense significance. Let's take for example the Ram Janmabhoomi Case. If the current Chief Justice decides to take up the hearing of the case before say his tenure ends in October 2018 and if he delivers a verdict in favour of a particular community, inevitable mass political mobilizations will follow and it's socio-political fallout will be immense. If say the court delivers a verdict around October that the temple would be built at the disputed site, one can't even fathom the political support it would generate among the majority of the conservative hinterland electorate for the ruling dispensation in the state elections in Madhya Pradesh, Chattisgarh and Rajasthyan that would follow just a month after the verdict.

Hence, the potency behind the routine work of administering the roster vested with the Chief Justice of India currently, and in large measures the reasons behind the current institutional crisis that we are staring at.

I hope this helps grasp an idea about where the core issues lie and what remain the key factors behind the same. Would love to hear from you on the subject and do share any feedback which you might have.

Thank You!