SC row: Insider allegations put India's top court on trial

Even by the standards of a country where something unexpected happens every minute, the scene at India's Supreme Court last week was startling. India's top judges are invariably reticent; they shy away from any public display of political affiliations, for example. But, last week, the four most senior judges of the court held a press conference together, an unprecedented act. They then accused their boss, India's chief justice, of undermining the Supreme Court -- the one institution in the country that many fondly thought was insulated from corruption or political interference. Democracy, they said, might not survive.

Let's get one thing straight: These judges aren't malcontents or habitual dissenters. Some of them lean conservative, others liberal. One of them is due to take over as chief justice later in the year, when the incumbent, Dipak Misra, retires. (Unlike in the US, where Supreme Court judges serve for life, in India they have a clear exit date.)

The four justices levelled some disturbing allegations at Misra. India's chief justice has really only one unique power: the ability to decide which set of judges hears which case. Given that India's Supreme Court has dozens of judges -- another difference from the US, which famously has only nine -- this power is far from meaningless. You could, theoretically, encourage certain outcomes by handing cases over to certain judges, if you knew in advance their sympathies and predispositions.

That is exactly what the four justices said they feared: "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 the press conference, the judges referred obliquely to at least one such case: the examination of whether there was anything suspicious about the 2014 death of a judge, Justice B.H. Loya, who was trying a murder case against Amit Shah, who has since arguably become India's second-most powerful man. Shah is president of the Bharatiya Janata Party, which runs the federal government and most of the states, and he has long been Prime Minister Narendra Modi's right-hand man.

Last month, the newsmagazine Caravan broke a story detailing some unsettling questions about the circumstances surrounding Loya's death -- a death which coincidentally cleared the way for the dismissal of the murder charge against Shah. (When asked about the controversy in early December, Shah, who has denied any wrongdoing, said the law would "take its own course.")

The Supreme Court was forced to take notice of the problem; after all, a judge had died. But, apparently, the four judges speaking out believed that a more senior bench of their fellows should have been assigned to the question than the one decided on by Misra. Hours after the latter turned down their request that he reconsider, they called their press conference.

The possibility of a subversion of justice -- in a case involving a dead judge and powerful politicians -- would be deeply troubling if true. Such things happen in countries without a real judiciary or democratic institutions. It is not how things are meant to be done in India.

On Monday, it looked like the situation had returned to normal; Supreme Court justices don't go on strike -- at least, not yet. The BJP brought forward the young son of the dead judge who said, while surrounded by a battery of lawyers, that he no longer supported an investigation into his father's death.

But, damage has been done to the court and to the government. Questions are now being asked about multiple other such assignments of cases. Until Misra clears the air and makes institutional changes to how cases are assigned, such suspicions aren't going away. And unless there's an open, swift and independent investigation of Justice Loya's death, suspicions about that won't subside either.

India's judicial system is hardly the best in the world. It's overworked, choked by hundreds of long-running or unnecessary cases. And, yes, as any businessman will tell you, the lower judiciary is perhaps open to a spot of bribery or a touch of manipulation. But, it has long been assumed that the higher judiciary at least is independent and clean. For investors and citizens alike, the presence of a Supreme Court that can be trusted made up for myriad other failings of the Indian state. Restoring that faith should be an urgent priority.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Mihir Sharma is a Bloomberg View columnist. He was a columnist for the Indian Express and the Business Standard, and he is the author of “Restart: The Last Chance for the Indian Economy.”