Judging second thoughts

If Rai’s order still earned a reprieve for Laloo on May 10, it was because the Supreme Court bench headed by Justice S.N. Variava reacted to it as if it had come up with a revelation. Variava’s bench was suddenly willing to go entirely by the technicality that the composition of a high court bench could be decided only by its chief justice. The apex court was no more thinking about the circumstances that had prompted it on April 26 to take over that power from Justice Rai. Instead, it made out that the April 26 order would apply only if it enjoyed the consent of all the parties concerned. This has an absurd implication: That the apex court had intruded into the jurisdiction of another constitutional authority, the chief justice of a high court, not because of any emergency but because of a consensus among some other parties that appeared before it.

It is nobody’s suggestion that once a court proceeds in a certain direction in a given case, it should not make any mid-course correction. The point is, Variava’s bench should have made a clean breast of why it was going back on its earlier order. When the April 26 order was passed, one was entitled to expect the apex court to have taken into account all the connected factors with due seriousness. All the more so because the order was going to affect the fate of a Union cabinet minister and trample upon the jurisdiction of a high court chief justice. The Supreme Court cannot have us now believe that it had in fact made that radical move on April 26 simply because Laloo’s counsel, Ram Jethmalani, had given his consent to it. If that was the only reason for passing such an order, the least Variava’s bench could have done on May 10 was to ask why Laloo had changed his mind on whether the apex court could decide the composition of the high court bench.

What is more disconcerting is, this is the third time in six months that benches headed by Justice Variava retracted in high profile cases. The first time was in December 2004 when it dismissed as “infructuous” a public interest litigation it had taken on board a few months earlier with the objective of laying down the law on whether judges could ever go on strike. The second time was in March 2005 when Variava issued a clarification to dispel an impression created by his own statement that somebody from the Patna High Court had called him up to influence him in Laloo’s case. Each of the three retractions has raised more questions than it answered.

The purpose of pointing out this pattern is not to make a case against Justice Variava. The issue is an institutional one. Many in the bar count Variava among the finest judges in the apex court. This is an appeal to the judiciary to be more transparent in its pronouncements. Judges are human and therefore as prone as anybody else to having second thoughts. But they owe it to the nation to explain their retractions, especially because of their wide repercussions.