Free Press Journal

Supreme Court Crisis: Senior judges had no choice but to save their souls


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It is the best of times, it is the worst of times for the judiciary. It is a time of sadness, it is a time of joy because at last the muck which had gathered in the apex court since 1950 was brought out by the four senior judges, Chelameswar, Ranjan Gogoi, Madan Lokur and Kurien Joseph. They tried to save their souls but were accused of tarnishing the apex court’s image  by their junior colleague Arun Mishra at the customary morning tea session. He was furious because they allegedly sullied his reputation which prompted him to recuse from hearing the Loya petition.

The imbroglio was pushed off the front pages on Thursday. Chief Justice of India Dipak Misra is a nephew of the 21st CJI Ranganath Misra, which fuels the argument that opportunity breeds opportunity according to lawyers like Mathews Nedumpara, who has founded the National Lawyers Campaign for Transparency and Reform. Its general secretary, Rohini Amin, said Nedumpara was dropped as additional solicitor general in the apex court  because he had no heavyweights to back him. ”He was the son of a school teacher.” This implies that to obtain high constitutional posts, merit has to be bolstered by means.

The next CJI Justice Ranjan Gogoi is the son of a former Assam chief minister while the judge who is next in line to be made the CJI, Justice Sharad Bobde is the son of former advocate general of Maharashtra, Arvind Bobde.  Interestingly, Ranganath Misra’s son, who was also a lawyer predeceased his father and his son Anand Misra was granted anticipatory bail by the apex court in a dowry harassment case in 2007, when the mother of his estranged wife alleged he beat his wife in front of his lawyer-father for dowry at the former CJI’s home.

The preamble to the Constitution declares that the people of India are supreme. So, the principle to be followed is vox populi est vox dei or the voice of the people is the voice of God when the judiciary fails the people as the four judges have admitted before the media on January 12 despite the volte face of Ranjan Gogoi and Kurien Joseph. Later, Kurien declared in Kerala that no interference from outside was needed while Gogoi declared all is well within the judiciary which raises the question why they chose to go public if there was nothing remiss.

As Justice Chelameswar laconically remarked during the press conference on January 12, “…20 years from now, some wise men will say that we have sold our souls.” He should know what he is talking about because he was a Chief Justice of the Kerala high court where he was the master of the roster before being elevated to the Supreme Court.

There is no conceivable reason for these judges to go public about the CJI assigning sensitive matters of national importance to benches of his choice unless their patience was exhausted. When judges enter a public forum, they speak as citizens and lose the total immunity which cloaks their utterances when they speak in their own court rooms. That is called absolute privilege so that they are free to criticize public figures like the prime minister, or perhaps even the president inside their court rooms without being subject to the law of defamation or contempt of court.

But, when they address a press conference, they lose their immunity which all four judges were perfectly aware of. Their decision to hold a press conference was probably the last straw, which broke the camel’s back. The seven-page letter, which they addressed to CJI Dipak Misra, evoked no response even though it raised very serious questions regarding how judges are appointed through the revised Memorandum of Procedure in which the Modi government insisted on having the final word, when it felt an incumbent judge was anti-Modi ideology, sorry, a security risk.

Special Public Prosecutor Ujjwal Nikam even declared on prime time news that truth was no defense in an action for contempt of court, exposing himself to ridicule because this dictum was overturned in 2006, when an amendment was made to The Contempt of Courts Act, 1971 to eradicate a pernicious judgment delivered in 1989 by two Bombay high court judges Nirgudkar and R A Jahagirdar that truth was no defense when a renowned editor, Madhav Gadkari had exposed corruption within the judiciary.

But, judges like Chelameswar know more law than Nikam, who needs to brush up what he knows. And now, that the son of Judge Loya has gone public to declare that the family had retracted their allegations that the judge’s death was suspicious, truth may sometimes become a casualty in our court rooms.

As senior advocates like Phiroza Anklesaria and Srihari Aney hinted, the body language of the 21-year-old boy told a different tale because he was kept between two lawyers who may have told him what he must say. If these four senior judges had not spoken out, truth would have forever been sacrificed on the altar of expediency.

The writer holds a PhD in law and is a practicing njournalist-cum-lawyer of the Bombay high court.