Free Press Journal

We have seen horrors of a pliant judiciary


Erosion of public trust in democratic governments the world over has been well-documented. The political class as a whole and political incumbents in particular are no longer guaranteed to act in public interest. Media credibility has dropped to an all-time low and hopes in the democratizing effects of the internet, as an enabler of participatory governance and fair play, have dimmed with its increasing colonisation by interest groups.

In such a scenario, the credibility of the judiciary as a watchdog of government is all-important. As was noted in the main editorial on this page on Nov 13, the recent face-off between the Justices of the Supreme Court is unfortunate. This is particularly true at a time when faith in regulatory agencies – notably the Central Bureau of Investigation – tends towards absolute zero. The question mark against CBI special director Rakesh Asthana, coming in the wake of serious allegations against two former CBI directors, hasn’t helped.

In India, the judge still commands authority and respect, at a time when changing social values, oriented towards materialism and against interpersonal bonds and mutual trust, have led to a falling-off in expectations of moral conduct from public servants. Untrammelled by the need for vote banks and accountable only to his conscience and the higher courts, the judge is held to be guided strictly by the law.

The Supreme Court interprets the law. The Justices may have a difference of opinion; in fact, they often do when, to minimize subjectivity, multiple judges weigh in on constitutional matters. In the Triple Talaq case, the then CJI Jagdish Singh Khehar differed with his peers but it was their opinion which carried the day. Thus, the CJI is not a despot.

On the other hand, a fellow justice cannot usurp his authority in operational matters. Certainly, CJI Dipak Misra was well within his rights when he overruled the fractious Justice Jasti Chelameswar in the matter of setting up a bench to hear a sensitive case – related to the CBI chargesheet indicting retired Odisha High Court justice IM Quddusi, for conspiring to influence Supreme Court judges on a plea against debarment of a medical college. But the innuendos against the CJI for having appointed a bench of his choice, in a matter over which he had previously presided, are regrettable and must be firmly addressed.

On no account should the legislature or the executive be allowed to use differences within the apex court as leverage to influence judicial appointments. Public interest demands the absolute independence of the judiciary, which is by-and-large self-regulatory. The SC itself laid down a statutory procedure for appointments, immune from government interference. Only once in the history of India, in 1993, has the legislature sought the removal of a SC justice (twice in the case of the High Courts) and that too, only when he was found guilty by a panel of his peers.

Innuendos against justices are nothing new and are generally, and quite correctly from the point of view of maintaining public confidence, addressed in-house. For example, a judge may recuse himself in a certain matter without assigning a reason. It may be recalled that Justice Khehar recused himself halfway through the hearings on the Sahara case, for no apparent reason – just one week after passing an order denying Sahara’s demand that he recuse himself!

On Monday this week, Justice Navin Sinha recused himself from hearing a petition challenging the appointment of Asthana as CBI Special Director, on the grounds that he had been under investigation by the agency. Earlier this year, Himachal Pradesh High Court judge Tarlok Chauhan had recused himself from hearing the Priyanka Gandhi land deal case. In none of these cases were motives impugned to the recused judge.

It is in the nature of the executive to undermine judicial independence. The government is transparently frustrated by its inability to push through the National Judicial Commission (NJC), which would have given it a say in judicial appointments. The ‘judicial overreach’ narrative, which accuses judges of usurping executive powers, has been revived to an unprecedented extent. This is unfair, because the judiciary is manifestly the last resort for the common man.

If Indians are litigious – and the bulk of cases involve government agencies – it is largely because the executive fails to follow statutory processes. If the centre will not address the Delhi smog, citizens will naturally turn to the courts for relief. All too often, the police have failed to register complaints without judicial intervention! For example, the SC has ruled that loudspeakers cannot be used after 10 pm. So lax was implementation of the order that the Bombay High Court last year ruled that citizens were entitled to compensation under Article 12, if their complaints went unheard!

India has witnessed the horrors of a pliant judiciary during the Emergency.  But it has also seen the judiciary stand firm against blatant intimidation. Most recently, when Godman Ram Rahim’s followers massed outside the court on the eve of the verdict in his trial for rape – while the executive stood by silently. As the last bastion of public trust, the SC must be above controversy.

The author is a senior journalist with 35 years of experience in working with major newspapers and magazines. She is now an independent writer and author.

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