Author: R Jagannathan
Publication: Swarajyamag.com
Date: February 15, 2017
URL:   https://swarajyamag.com/ideas/cji-khehar-is-leaving-the-patchy-legacy-of-his-predecessor-thakur-behind

What a difference an individual can make to an institution! One Arun Shourie rescued the telecom industry from a policy mess in the previous decade. One T N Seshan made the Election Commission an institution respected globally for its conduct of free-and-fair elections. One Vinod Rai made us acutely aware of the United Progressive Alliance’s (UPA) corruption in the alienation of scarce natural resources. One Narendra Modi rescued the Bharatiya Janata Party from an also-ran status. In fact, almost all regional political parties were built by the personality of one individual.

It is quite possible that one Chief Justice of India (CJI), the current incumbent J S Khehar, can make the institution more credible that it has been recently. Under T S Thakur, previous CJI, the institution was embroiled in a needless war of words and attrition with the executive after a bench headed by Justice Khehar shot down the National Judicial Appointments Commission (NJAC). Despite the fact that the verdict was possibly unfair – it killed a law passed near unanimously by Parliament and state legislatures – Thakur made things worse by making it a war against the executive and legislature. He also wasted the court’s time by focusing attention on issues that are of marginal importance to justice in the country – like deciding how cricket should be run, or allowing his court to be taken for a ride by smart lawyers, including those of the recalcitrant Sahara Group. In court, he was prone to making negative remarks about the executive that were often unwarranted (read here and here). Luckily, CJI Khehar seems to be cut in a different mould. In less than a month-and-a-half, the Supreme Court under his leadership has been taking good decisions, the latest being the verdict of a bench headed by P C Ghose to convict All India Anna Dravida Munnetra Kazhagam chief V K Sasikala of corruption yesterday (14 February).

In the Jayalalithaa-Sasikala corruption case, an upright trial judge, John Michael D’Cunha, convicted both of them in 2014, sentencing them to four years in jail, barring them from public office for 10 years, and imposing a fine of Rs 100 crore. But, surprisingly, the Karnataka High Court acquitted both of them a few months later on flimsy grounds, setting tongues wagging on what kind of behind-the-scenes deals were done to ensure this outcome. The High Court judgment was a low point in the credibility of the judiciary, especially when it comes to taking on the powerful. If a case pursued for 21 years can be so summarily thrown up after a strong conviction, it suggested something was rotten in the judiciary. Luckily, the Supreme Court has made amends by upholding the trial court verdict. Sasikala will be back in jail to complete her four-year term. Her hopes of becoming chief minister of Tamil Nadu are over.

Earlier, in January, another bench, led by Arun Mishra and Amitava Roy, stopped a fishing expedition by another inveterate public interest litigation (PIL) specialist, Prashant Bhushan, who wanted the court to order a Central Bureau of Investigation (CBI) probe against the Prime Minister based on a dubious diary recovered during raids on the Sahara and Birla groups that allegedly indicated payoffs to various politicians.

Nor was this some kind of favour to powerful politicians. The Khehar-led Supreme Court has been getting tough on frivolous PILs, and recently fined a Bihar MLA Rs 10 lakh for wasting the court’s time by seeking investigation into a news report filed as far back as 1994. Earlier, it fined a 66-year-old from Maharashtra for challenging some reservation related order.

By doing so, the Supreme Court has sent a tough message that it will not entertain busy-bodies who distract the apex court from fulfilling its larger role of delivering justice.

A similar firmness was seen in another bench headed by Justice Dipak Misra, who rejected arguments by Kapil Sibal on behalf of the Sahara Group and ordered the attachment of Aamby Valley, a property allegedly worth Rs 39,000 crore. Auction of Sahara properties will be undertaken to collect dues worth Rs 24,000-and-odd crore (plus accumulating interest) that the Supreme Court had ordered two Sahara Group companies to pay as far back as 2012. The Supreme Court upheld a Securities and Exchange Board of India (SEBI) order that said that Sahara had raised money illegally from investors, and the court ordered Sahara to pay this money to investors through SEBI. It is worth recalling the Justice Khehar was a part of the strong judgment against Sahara in 2012, but various benches of the Supreme Court since then were reluctant to attach Sahara boss Subrata Roy’s properties to recover dues to investors. An exasperated court finally sent him to jail in 2014 for stonewalling its orders, but it is only now that his properties are being attached. What should have been done first is now being done under a Khehar-led court.

The Khehar court also demonstrated its willingness to take on rogue elements in the higher judiciary a few days earlier, when it sent a contempt notice to Justice K S Karnan, who has been flaunting his Dalit status to make all kinds of allegations against other senior judges.

The last piece of evidence from the Khehar court about its readiness to get on with business and avoid needless diatribes against the executive or humouring frivolous PIL-sters came earlier this week. The CJI announced in open court that it would come up with an agreed Memorandum of Procedure (MoP) for the selection of judges within a month. While his predecessor was making threats to get the government to agree on the MoP, CJI Khehar seems to have worked the backroom circuit to set things right.