When judges hail a prime minister, the judiciary quails because judicial independence has failed. And this parody is displayed for the global judiciary to see. More so, when the judge lavishing praise on Prime Minister Narendra Modi is the third seniormost judge of the Supreme Court, who selects judges for the apex court and the 24 high courts.
So, Justice Arun Mishra, who is part of the Supreme Court collegium, sent shock waves through a global judges’ conference organised by the Supreme Court last week when he called Narendra Modi “a versatile genius, who thinks globally and acts locally.” The judge heaped praise on “Shri Narendra Modi, for his inspiring speech which would act as a catalyst in initiating the deliberations and setting the agenda for the judges conference.” These remarks left all the judges aghast.
The entire Supreme Court had in 1997 adopted “The Restatement of Values of Judicial Life” which is a complete code of judicial ethics and lays down a judge should remain aloof from politicians to preserve the dignity of his high office. Justice Mishra also lauding Union Law Minister Ravi Shankar Prasad at the same conference for doing away with 1,500 obsolete laws has proved judicial independence in India is chimerical.
Justice Mishra has always drawn flak for being subservient because in December he had offered “a hundred apologies with folded hands” and offered to do “dandavat” or prostrate before all the lawyers in abject apology for threatening to send senior advocate Gopal Sankaranarayanan to jail when the latter forcefully told the judge to recuse from hearing a case concerning farmers.
The 1997 code of judicial ethics has laid down that judges should never lower the dignity of their high office by words or deeds which is precisely what Justice Mishra seems to have done. On May 24, 1949, the Constituent Assembly Debates had recorded Prof K T Shah from Bihar declaring all judges should be free from political influence, which includes the prime minister who until the 1980s, decided who would be elevated to the Supreme Court before the latter devised the collegium system in 1993.
When the four judges of the Supreme Court accused the 45th CJI Dipak Misra of selectively assigning sensitive cases to pre-selected benches with predictable outcomes, they had Justice Arun Mishra in mind. Justice Mishra reportedly wept after the judges’ press conference and allegedly accused Justice Chelameswar of indirectly tarnishing his reputation — or whatever remains of it. It was Justice Mishra who was to have heard the PIL alleging foul play in the death of Judge Loya. But he recused himself after the four judges’ press conference.
The same so-called “rebel” Justice Chelameswar had warned about the judiciary cosying up to the executive which appears to be precisely what Justice Arun Mishra is now doing. The Supreme Court last week dismissed a curative plea filed by a victims' association in connection with the 1997 Uphaar Cinema fire tragedy in Mumbai, which allowed the Ansal brothers, Sushil and Gopal Ansal, to escape a further jail term following the death of 59 persons during the screening of the Hindi movie 'Border' on June 13, 1997.
A bench of Chief Justice S A Bobde, Justices N V Ramana and Arun Mishra rejected on Februry 20 the curative plea of the Association for Victims of Uphaar Tragedy (AVUT) after declaring: "We have gone through the curative petitions and the relevant documents. In our opinion, no case is made out.... Hence, the curative petition is dismissed," the bench said in its order.
A trial court had in 2015 jailed the Ansal brothers who owned the theatre but the Supreme Court allowed them to walk free with a fine of Rs 60 crore and quashing the jail term. The verdict created an uproar as the Ansal brothers had individually been jailed for just five to six months each.
In 2017, a three-judge bench gave relief to 78-year-old Sushil Ansal by awarding him the jail term which he had already undergone. The judges told his younger sibling Gopal Ansal to serve the remaining one-year jail term.
All these instances coupled with the utterances of judges like former Chief Justice of the Delhi High Court, Ajit Prakash Shah, who delivered the L C Jain Memorial Lecture instituted in the memory of the Gandhian activist Laxmi Chand Jain on February 10 in Delhi, makes scholars wonder if the apex court has abdicated its duty of protecting citizens’ rights from the executive to becoming a court of the executive.
Justice Shah pointed out there were instances where we were being made to doubt whether the Supreme Court is actually able to protect our rights at all. To bolster his theory that the Supreme Court had become a court upholding executive policy to the detriment of the life and liberty of citizens, the judge said the judgment in the Ayodhya imbroglio was unanimous, but anonymous.
Contrary to judicial practice, the name of the judge who authored the unanimous opinion was absent. Even more peculiar was the 116-page anonymous “addendum” to the judgment, that sought to reinforce and reiterate the “faith, belief and trust of the Hindus” that the “disputed structure is the holy birthplace of Lord Ram”.
The need for this addendum was highly questionable because the bench had already unanimously decided the case on constitutional principles, and the addendum did not serve the role of a concurring opinion. Instead, the addendum reinforced the supremacy of Hindu theological considerations.
The Supreme Court opined that the Allahabad High Court’s decision to divide the property into three parts was not “feasible” in view of the need to maintain peace and tranquillity. However, the Supreme Court’s judgment appears to have legalised violence because after stating the Hindu militant groups first clandestinely kept the Ram Lalla idols in the mosque in 1949, and wantonly demolished the mosque in 1992, the court rewarded the wrongdoer and penalised the Muslims. This flouts the dictum that one has to approach the Court with clean hands.
And so we are forced to accept that the Supreme Court is supreme not because it is infallible but it is supreme because it is final when it bends the law to sometimes suit government policy. And Justice Arun Mishra is a votary of this school.
The writer holds a Ph.D. in Media law
and is a journalist-cum-lawyer of the
Bombay High Court.
