The revolt by four senior Supreme Court judges last Friday against alleged bench fixing by the Chief Justice that may influence the outcomes, compromise judicial integrity and justice delivery opening doors for manipulation of the system by the government is unprecedented in the annals of Independent India. And yet, what is even more surprising is that such unprecedented whistle-blowing did not set the Ganges on fire. As the court resumed after the weekend break, it was business as usual. The four senior most Justices were not assigned any important work and there was no serious efforts to resolve the stand-off between Chief Justice Dipak Misra and the four dissenting judges — J Chelameswar, Madan B Lokur, Ranjan Gogoi, and Kurian Joseph who accused the CJI of assigning sensitive cases “selectively to benches headed by junior judges handpicked by him”. As of now, the accused appear unfazed, emboldened by the subtle support they received from a powerful section of media and the Executive.
Logically speaking, there should have been a national outcry over the allegations as they reflect erosion of institutional credibility endangering constitutional democracy. Instances like the tearing hurry of the government to push Aadhaar down the throat of citizens without adequately addressing security concerns and possible misuse underscore the perils of an opaque judiciary. Hope the apex court looking into its constitutional validity of Aadhaar will not act in haste. The same court had refused to stay the demonetisation (notification) that played havoc with millions.
What was unsaid was that certain positions taken by the apex judiciary may help the ruling dispensation. Some give and take between judiciary and executive is understandable as long as they do not degenerate into abject surrender or manipulation of courts by the government of the day. PM Narendra Modi appears to be nudging the apex court to follow Western courts system that is often in sync with government policy decisions especially on economy, banking, tax etc. for unbridled development. The courts there are loath to pronounce judgments that go against government’s policy architecture save criminal and exceptional cases. But in India, facing deep social, cultural and economic disparities, such “adjustments” are not only undesirable, but harmful to the interests of people.
Among the contentious issues flagged by the rebel judges are a PIL on medical college scam and the petition relating to the mysterious death of CBI judge B H Loya in November 2014. Loya was presiding over a fake encounter killing case linking Amit Shah as then Gujarat home minister and now BJP president and the second most powerful man in India today. Shah was acquitted of all charges a few days after the death of Loya due to “heart attack” while away in Nagpur attending a wedding reception. The dissenting judges have questioned the motive behind assigning such a sensitive case to a junior Justice like Arun Mishra. Adding a new twist to the saga, channel News18 quoted senior lawyer Dushyant Dave as having said that “Everyone knows that Justice (Arun) Mishra has close relations with BJP and top politicians.”
The palace revolt has turned the spotlight onto Judge Loya’s sudden death. Conspiracy theorists suspect the move was leveraged by Shah’s rivals to keep him under a cloud. One of the dissenting judges is said to be in the good book of a senior minister. Shah, who was elected to the upper house last month, is considered a future PM candidate. However, a reverse narrative is that politicisation of Loya’s death may weaken the case and help Shah retrieve his image. Interestingly, BJP MP Subramanian Swamy backed the judges. “We can’t criticise them, they are men of great integrity and have sacrificed a lot of their legal career, where they could have made money as senior counsel…we must respect them. The PM must ensure that the four judges and the Chief Justice of India come to one opinion and proceed further”, Swamy told media last week.
Some social media posts hinted at a caste angle too to the aggressive counter offensive against the whistle-blower judges. PM’s principal secretary Nripendra Misra was spotted outside Dipak Misra’s residence a day after the rebellion. Government sources later clarified Misra went to wish Misra on New Year (January 13), but could not meet him as he was offering pooja. It took Misra 12 days to traverse the 2-km distance between PMO and CJI’s residence. Same day, a fourth Mishra waded into the controversy. BCI chairman Manan Kumar Mishra “welcomed the government’s stand not to interfere” and urged parties to refrain from politicising the issues. Media quoted Mishra as having said that “We have given an opportunity to Rahul Gandhi and political parties to talk about our judiciary, it is unfortunate. On behalf of Bar Council of India, I request him and other political parties to not politicise the matter.” Mishra had canvassed support for Modi in the 2014 Lok Sabha election in Varanasi. Incidentally, Dr P K Misra is PM’s additional principal secretary.
If N Misra drew flak for attempting to meet D Misra, the Opposition also did not crown itself with glory. Soon after the presser, CPI leader D Raja made a dramatic visit to the residence of Justice Chelameswar. Though the CPI, having paltry two MPs — one each in Lok Sabha and Rajya Sabha — is politically inconsequential, Raja’s ill-advised visit to the judge’s house gave ammo to stroppy television anchors to deflect attention from critical constitutional issues to “politicisation” of the event.
Whether the method adopted by the learned judges to bring the issues into public glare was proper or not is debatable, but that should not diminish the seriousness of their allegations. Any civilised society would have toasted the judges for their epochal step; one of them, in line to become the next chief justice, even risked his promotion for the sake of institutional credibility. That is a silver lining amidst swirling dark clouds permeating New Delhi’s horizon.
The writer is an independent journalist.