Judges Fallout Spotlights How Judiciary Scuttled The System Of Mutual Checks And Balances

Our political class and the crony media have a penchant for reducing the most serious issues to trivial episodes, if not comic interludes. Within minutes of the press conference by four Supreme Court judges to make public their anguish and concern over Chief Justice Dipak Misra’s actions which they felt were affecting the functioning of the judicial delivery system and the independence of the Judiciary, they turned the focus away from the core issue.

The judges had conveyed their concern directly to Justice Misra a few months ago. They went public as he failed to address their grievance.

The four judges are the CJI’s seniormost colleagues and are, in that capacity, members of the Collegium which he is legally bound to consult on the appointment and transfer of judges of the superior courts. What's more, under the convention by which the seniormost judge becomes the next CJI, one of the four is bound to succeed Misra.

Their main grievance is that the CJI, who, as master of the roster, assigns cases to the different benches has been sending politically sensitive cases to junior colleagues, bypassing them. This is not a matter to be taken lightly since it amounts to attribution of political motives in the allocation of cases. It was the CJI’s failure to dispel their doubts on this score that prompted them to take the unprecedented step of making their concern to the nation through the media.

Misra is not the first CJI to invite suspicion of political bias. One of his predecessors, K. Subba Rao, quit three months ahead of the date of his superannuation to contest the 1967 Presidential election as the candidate of a group of Opposition parties. It was clear from the sequence of events that he had negotiated with party leaders for nomination as candidate while still on the bench.

It is not unusual for judges to differ among themselves on appreciation of the facts presented to them by litigants. That is evident from the differing judgments given by the members of a bench who heard a case. The differences between the CJI and his colleagues which has now surfaced are not on matters of fact or law but on the working of the justice delivery system.

Our Constitution gives primacy to Justice. The Preamble mentions securing justice for all as the first of its objectives. It specifies three specific areas in that context –social, economic and political. Even a cursory look at the working of the system will show that it has been more successful in the area of political justice than in those of social and economic justice. One reason may be that those standing in great need of social and economic justice often lack the resources needed to invoke the judicial process which is costly and often time-consuming. Interestingly, the apex judges have fallen out on the issue of sensitive political cases.

Early in his tenure, Prime Minister Narendra Modi appointed a former CJI, who had given a couple of judgements that had gladdened the hearts of the Hindutva camp, as the Governor of a state. When those judgements were delivered the judge could not have known that a Hindutva government would be in place soon. He cannot, therefore, be accused of entertaining any ulterior motive when he decided those cases. But Modi’s choice of him for the high post signalled a message to serving judges that favourable judgments can earn rewards.

An order Justice Misra issued before becoming the CJI, directing cinema halls to play the National Anthem before each film show and the audience to stand up in respect, had warmed the cockles of flag-waving Hindutva patriots who were trying to foster synthetic nationalism.

Years ago, as a high court judge, Misra had issued a similar order but it was set aside by the Supreme Court on appeal. His second attempt, as apex court judge, to make playing of National Anthem at cinema halls mandatory was also short-lived. Last week a bench headed by him, revising the earlier order, left it to theatre owners to decide whether or not to play the Anthem.

In the letter to the CJI, the four judges refrained from giving details “to avoid embarrassing the institution” but it has come to light that they were unhappy with the CJI's decision on assignment of a public interest litigation seeking a probe into the death of Mumbai CBI court judge B.H. Loya who was hearing the Sohrabuddin fake encounter case. BJP President Amit Shah was Home Minister under Modi in Gujarat when the alleged encounter took place, and he and some IPS officers were among the accused.

It was one of the Modi-era Gujarat cases which the Supreme Court had transferred to Maharashtra courts to avoid political interference. The judge who was assigned the case after Loya’s death discharged Shah without trial and the CBI chose not to appeal against the decision.

Although there is a convention that PILs should be heard by senior judges, the CJI bypassed them and sent the petition seeking probe into Loya’s death to a bench headed by Arun Mishra. A pretty mess was soon evident with Dushyant Dave, a leading advocate, alleging that Arun Mishra was close to the BJP leadership and Tehseen Poonawallah, one of the petitioners accusing Dave of bullying him to withdraw the case. Their exchanges threw light on a little-discussed but widely known practice of lawyers choosing particular benches anticipating favourable decisions.

Beyond personal and political factors, the Loya issue has a bearing on corrupt practices too. Loya’s family has not seriously questioned the official version that he died of cardiac arrest while in Nagpur to attend a wedding, but his daughter has said that shortly before his death he had told her that he had been offered a hefty bribe of Rs 100 crore for a verdict favouring Amit Shah. She even identified the person through whom the offer was made.

Whatever the cause of Loya's death, this allegation needs to be investigated and the issue settled to the satisfaction of the general public in the interests of the good name of the Judiciary.

As soon as the judges went public, embedded Sangh Parivar activists battled against them in the social media on behalf of the CJI. Some of them demanded that they be impeached or sent to jail, as was done in the case of Justice C.S. Karnan of the Kolkata High Court.

Karnan, a Dalit whose complaints of discrimination by fellow judges went unheeded, had earned the wrath of the judicial establishment by identifying several allegedly corrupt judges. The first superior court judge to be tried and convicted on contempt charges, he came out of jail last month after serving a six-month term.

Some cyberbullies called the dissident judges terrorists. One used the term 'bastards'. Incidentally, he happens to be one of the few Twitter followers whom Modi follows in return.

The Bar Council of India has described the controversy as an internal matter of the Judiciary. Nevertheless, it has nominated a team to talk to the judges of the Supreme Court. How the issue gets resolved remains to be seen.

All that one can say with certainty at this stage is that the trolls’ expressed wish to make Karnans of the four judges will not materialize. The Constitution may have proclaimed equality before the law but we have judges who keep harking back to Manu who established the hallowed tradition of separate punishments for the Shudras and the rest.

Of the three estates, the Judiciary enjoys the highest esteem in the public mind and many citizens see it as the last refuge. Its glowing image, however, is due at least in part to the conscious efforts of all concerned to hide the warts from the public and to the employment of the power to punish for contempt.

One of the earliest acts of judicial impropriety that came to light was the declaration of a false date of birth by a Chief Justice of the Madras High Court. Attorney General M.C. Setalvad suggested that he be impeached to serve as an example to others. However, Prime Minister Jawaharlal Nehru accepted Chief Justice P. B. Gajendragadkar’s advice to allow him to resign and exit quietly to protect the fair name of the institution.

Taking advantage of the weakening of the Executive and the Legislature after Nehru’s time the Judiciary has augmented its powers through the device of interpretation of the Constitution. It has virtually scuttled the system of mutual checks and balances and emerged as a self-perpetuating and self-regulating institution. But it has not been able to find a satisfactory mechanism to bring to book the corrupt in its ranks.

The CJI and his political backers must take note of the support the four judges have received not only from the Opposition but also from various other sections. In this context, the letter four retired judges, one from the Supreme Court and three from the High Courts, have written to the CJI deserve special mention. They have called for a rational, fair and transparent process of allocation of cases to assure the public that there is no misuse of power to achieve a particular result in important and sensitive cases.

That will certainly take care of the issue the dissidents highlighted in their letter to the CJI. But several other issues like reforming the system to ensure the quality of judges and judgements and easy access to justice for the weaker sections will still remain to be addressed. These are not matters which can be left to the sweet will of the Judiciary.

(The author is a senior journalist based in Chennai. Views expressed are personal)