India politics: Bench press
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- Economist Intelligence Unit
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India's Supreme Court: Bench press
Senior judges accuse their boss of manipulating the system
FOR the biggest constitutional crisis in a generation, as some have labelled the drama currently roiling India's courts, the setting and the action proved disingenuously genteel. On January 12th four Supreme Court judges hosted an impromptu tea on the lawn of a grace-and-favour bungalow off a tree-lined New Delhi avenue. Enthroned in plastic chairs, the solemn judges revealed to puzzled reporters that two months earlier they had addressed a letter to India's chief justice. Having received no satisfactory answer, they would now make its contents public.
In the manner of India's often prolix court rulings, their text meandered before reaching its point: "There have been instances where cases having far-reaching consequences for the nation and the institution have been assigned by the chief justices of this court selectively to the benches 'of their preference' without any rational basis for such assignment." In short, the frumpish foursome were suggesting that holders of the top judicial office, current and former, tried to influence justice by shunting cases towards particular judges.
That is indeed a serious charge. As in America, another large and tumultuous democracy, the Supreme Court plays an essential role not only as a final legal arbiter but also as a counterweight to the caprice of the executive and legislative branches. Yet unlike America's nine Supreme Court justices, India's 31 (that is their constitutionally ordained strength; the actual number varies and is currently 25) never sit as a group. Instead the chief justice, normally the court's longest-serving judge, has the job of choosing when to hear cases and then of assigning each to a "bench" of two or more justices.
In theory, these powers help justice to be done, by allowing the court to hear cases faster, and the chief justice to accelerate the most pressing ones and steer technical subjects to judges with the relevant expertise. But they also allow the chief justice to ignore, speed or delay certain dossiers for less edifying reasons, and to feed controversial cases to colleagues whose records suggest a particular outcome. He (no women have held the post) can even withdraw a case from a bench after it has been assigned, or reconstitute a bench at will.
There is nothing new to charges that chief justices abuse their power as "master of the roster". What is new is for complaints to emerge from within the Vatican-like Supreme Court itself, a break with a collegial tradition that has typically seen judges close ranks to protect even garishly corrupt colleagues. The four dissident judges are not lightweights; they are the next four in seniority to the chief justice himself. One of their complaints is that the current chief justice, Dipak Misra, appears routinely to have assigned controversial cases to junior judges.
Mr Misra, who took office in August and is due to retire in October, has not responded to the charges. Perhaps he expects this cloud to blow over, as others have in the past. The trouble is that there is not just one recent case whose handling has raised eyebrows, but several.
Two of these touch upon Mr Misra himself. One involves the suicide note written by an ousted chief minister of the state of Arunachal Pradesh, detailing allegations that Supreme Court judges including Mr Misra (before he became chief justice) had demanded a bribe of some $13m to rule in his favour in the case that ended up depriving him of office--and driving him to hang himself. The other is a case against a medical school that lost its license, and allegedly tried to get it back by bribing the Supreme Court. Although Mr Misra himself sat on the bench that investigators say was offered the bribe, and which passed a string of rulings favourable to the school, rather than recuse himself from the subsequent bribery case, the chief justice assigned it to a bench that he himself chairs. The government, meanwhile, is counting on favourable rulings in a slew of brewing cases. It is an awkward time for Mr Misra's own colleagues to accuse him of partiality.
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