The lord of the Sabarimala hills must be a confused soul. He finds himself now at the heart of independent India’s largest debate on religious freedom, before a bench of nine judges of the Supreme Court. Millions of his disciples have protested the Court’s 2018 verdict where gender equality was held to trump the tenets of the faith, and rejoiced at the November 2019 order of the Chief Justice’s bench granting their cause a fresh lease of life. As things stand, their review petitions are kept pending until the questions of law are determined.
However, even Lord Ayyappa does not look like he will be getting a ready answer as to who constitutes his congregation. In December 2019, fervent pleas on behalf of certain women devotees to enter the temple were declined, although the 2018 verdict continued to hold the field. This was justified by the Court on a “balance of convenience”, thereby laying down a new principle for not directing the implementation of its own judgement. No surprises there: The BCCI case is a classic example of new jurisdictions being carved out to reverse a complete and final adjudication.
This year it was decided to put together the nine-judge bench to hear the cases on an urgent basis. But with two judges from the ongoing Kashmir/Article 370 challenges also a part of the Sabarimala case, it would mean that the Kashmir issues would be put on the back burner in the middle of its hearing: This is despite the advocates representing the right of women’s entry stating that they had no objection to the Kashmir cases being heard first.
Then, barely a day into the hearing, a strain of swine flu reached some of the members of the Bench, leading to a postponement of hearings till the middle of March. Now, with a fierce pandemic enveloping the globe, the case is adjourned indefinitely.
Over the last few months, the Supreme Court has been besieged by criticism of its administrative functioning. Cases that have customarily been heard with alacrity, like those concerning personal liberty, law and order and criminal investigation, have been posted after long intervals with the Government being granted a luxury of time to respond. Where immediacy is pre-eminent so that fait accompli may not be created (as with the validity of the Kashmir notifications, the CAA and the electoral bonds), there have been no effective hearings at the interim stage. Thus, the status quo slowly cements itself.
These critics broadly fall into two categories: Those who make the more palatable claim that the Court has been casual, almost lax in making such allowances; and, the harsher ones who attribute such judicial inaction to executive influence.
A large part of this quandary is attributable to the Court itself. Since the early years of the judiciary, one person has been given the onerous dual charge of heading both the administrative and judicial functions of the court. As a result, apart from sitting every day, reading briefs, hearing arguments and delivering detailed judgements, the Chief Justice has to also act as the final authority for all service-related matters of the Court’s 2,500 employees, issue office orders to streamline the registry, supervise measures for security and infrastructure, chair committees, correspond with and entertain judicial delegations, attend symposia, delegate subject matters among colleagues, constitute benches of varying strengths and interview candidates for the various courts. In the old days, when the burden of cases was modest, these tasks would not have been challenging. But in the present time, not only are they overwhelming, but they also bring in their wake a host of attacks on the person who occupies that high office.
In all the administrative tasks, the Chief Justice is assisted by a team of registrars, who are headed by the secretary general. As they are junior judicial officers, they neither have the training nor the complete independence to take steps towards course correction. This is why the Supreme Court sorely requires a chief executive officer – an independent professional who is equipped with the day-to-day management of the Court and is not beholden to the judges in any way. This individual will be charged with the entire mission of running the Court, so that the judges can concentrate on what they are trained and experienced to do – adjudicate. The CEO will, of course, have to be given adequate operational autonomy and be answerable to a committee of the Court, comprising judges and bar representatives, thereby providing for a professional process, much like in the corporate sphere. With this, the judges will at least be spared the charges that they have had to withstand over the last few years.
What, then, of those who say that there has been governmental interference? This year’s Malayalam box office hit Ayyappanum Koshiyum has at its heart an ego battle in a small hillside town between an honest police officer and an entitled scion of a political family. The soul of the movie, however, and why I think it is recommended viewing for anybody in public office, is the manner in which committed public servants can dismantle even the most oppressive of influences by merely using the full force of the law. It is only for politicians to concern themselves with public opinion, not for judges. They are weaponised by the Constitution to serve the cause of justice, and in this, as per Article 144, all civil and judicial authorities are enjoined to cooperate. Just a few blows of the gavel to any misadventures would be sufficient to send the message loud and clear: That the Court offers no sanctuary to the executive knaves.
This article first appeared in the print edition on March 28, 2020 under the title “Ayyappa and the Court”. The writer is a senior advocate, Supreme Court of India.
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