A crisis, an uneasy truce, and two landmark judgments
Despite two momentous verdicts — recognising privacy as a fundamental right and outlawing triple talaq – 2017 was nothing less than an annus horribilis from which the judiciary was lucky to emerge with its credibility untarnished. Graft allegations attempted to box none less than the Chief Justice of India Dipak Misra into a corner over the handling of cases related to Medical Council of India denying permission for some medical colleges to admit students for two years. Justice J Chelameswar, the seniormost judge after CJI Misra, a judge who has actively taken on the role of reforming the secretive collegium, was slated to hear the matter with five senior SC judges, setting the stage for an explosive outcome, but CJI Misra intervened, exercised his authority as master of roster and another bench finally heard and disposed of the matter with a Rs.25 lakh fine on Prashant Bhushan and company. Justice Chelameswar, who has nearly six months of tenure left, may also pay a heavy price but that remains to be seen.
The denouement was clearly not satisfactory but the perception that the judiciary managed the crisis without other arms of the state or civil society intervening has helped normalcy return. It remains to be seen whether the central government pursuing structural reforms in the economy has some appetite to attempt judicial reforms like the Judicial Standards and Accountability Bill, which will create structures to probe similar complaints, but the quashing of the National Judicial Appointments Committee Act and the absence of public outrage may deter the government from tinkering too much with judicial autonomy. Nevertheless, the collegium has shown some capacity for internal reform and forstering transparency by deciding to publish its recommendations on elevation or rejection of judgeship candidates.
The right to privacy judgment, decided 9-0, will rank among the finest moments for the judiciary. In a time when there appears to be little control over private data with governments, corporations, and criminals laying claim to it, the judgment written by Justice Chandrachachud for three more judges describes privacy as the “constitutional core of human dignity” protecting “heterogeneity and recognises the plurality and diversity of our culture”. He has also defined three zones – intimate, private and public – where privacy operates, thereby offering conceptual and operational clarity on how privacy expectations vary.
The triple talaq judgment was a case of ends justifying the means. Three judges ruled in favour of outlawing triple talaq while two – the minority – said this would be a violation of religious freedoms. More intriguingly, one of the three judges who outlawed triple talaq ruled with the minority against any violation of religious freedoms but he could not locate triple talaq in core Islamic texts and hence banned it. There was much heartburn that triple talaq was outlawed in this fashion without an outright majority judgment based on right to equality before law and right against discrimination.
Weighty matters await Supreme Court in 2018. The hearing on the Babri Masjid-Ramjanmabhoomi title dispute is poised to resume. SC must also decide whether the fetish with linking Aadhaar to all sorts of services, as has been progressing in recent months, is in consonance with the Aadhaar Act. There has not been much improvement in filling the vacancies in high courts. 392 of 1079 sanctioned high court judges post are lying vacant translating to a vacancy rate of 37%. Six of 31 positions are also lying vacant in Supreme Court. The Memorandum of Procedure also continues to hang fire. CJI Misra must settle this outstanding business with the government and work out a way to fill appointments as soon as retirements occur.
DISCLAIMER : Views expressed above are the author's own.
