The mutinous judges-all sober, wise men with impeccable track record-have claimed that they were forced to take this unprecedented step to “save democracy” because various “irregularities”, “less than desirable” things have taken place in the last few months over “allocation of cases by CJI” and all their efforts to persuade CJI Dipak Misra into taking “remedial measures” have failed.
The developments, as Indian Express aptly noted in its editorial on Saturday, point to an “institution in crisis, and a crisis of institutions.”
It is not for this columnist or for the media to speculate over the charges. We must take Justices Jasti Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph’s words in good faith and in all seriousness. However, we must equally note that the CJI has chosen not to react and it would be unfair and improper to pass “judgements” on the veracity of the charges. We have not been privy to any information that helps us arrive at a conclusion, and it is not in the media/public’s power or jurisdiction to deliver the relief that the honourable Supreme Court judges seek.
The public can neither take a call on CJI’s impeachment nor can they implement judicial reforms that must emanate from within the institution.
Conversely, any idle speculation or spinning of conspiratorial tales will further erode the credibility of Supreme Court, undermine its sanctity in public perception and shake the foundation of our democracy. The primacy of the Supreme Court must be acknowledged, and it cannot be made vulnerable to trial by media.
As former CJI RM Lodha told Indian Express, “Ultimately, CJI, being leader of the institution, has to show statesmanship and ensure that grievances are resolved… This matter is exclusively within the judiciary and should be resolved within the judiciary.”
However, we can and must discuss the damage that the institution of judiciary has suffered due to Friday’s extraordinary events, not the least because it sets a precedent and represents the crossing of Rubicon. There’s no going back.
Bear in mind that this is not the first time that Supreme Court judges have had internal differences. The discontent arising from these differences at times have barely stayed confined within the apex court’s hallowed corridors.
Take, for instance, an issue that is relevant to the present turmoil. There were unpleasant scenes during the Constitution Bench’s ruling that established the dominance of CJI as the ‘Master of Roster’ last November.
As Krishnadas Rajagopal had reported in The Hindu, the “raucous hearing”-where the five-judge Constitution Bench of the Supreme Court ruled that constitution of any Bench is the CJI’s exclusive domain-was “marked by exchange of harsh words, heckling, brutal accusations of terrorising judges, forum-shopping and repeated warnings of contempt of court.” In fact, CJI Misra had rejected an appeal from lawyers that the media be disallowed to cover the rather unruly proceedings in the interest of freedom of speech.
Crucially, no provocation has been great enough to compel judges to cross the line and unburden their differences before the public. As Vikas Singh, senior advocate and the president of the Supreme Court Bar Association told CNN-News18 in an interview, “there have been occasions where judges have had bigger differences with the CJI” but these have never been subject to public scrutiny.
There’s a very good reason why. The Supreme Court is not just any other institution. It provides remedy and restores balance when all other institutions fail. That’s why its primacy and independence deserve special protection. It is also the reason why the Supreme Court’s Collegium system, despite its opacity, received support from different quarters of the polity during the battle over NJAC.
As Shekhar Gupta writes in The Print, “many of us (including this writer) have given it the fullest support over these contentious years. The logic was, whatever the system’s flaws, it is better than having the politicians mess with it.”
Now that a precedent has been set, what stops any dissenting judge or judges who might have legitimate grievances against the CJI to similarly approach the public? We cannot even begin to grasp the crisis that may befall the institution.
The more immediate repercussion, though, will be highly political in nature. The four wise judges of the Supreme Court through their novel approach have not only made the institution defenceless against dirty politics, their action has made judiciary vulnerable to political manoeuvres.
No sooner did the judges conduct their news conference that West Bengal chief minister Mamata Banerjee tried to insinuate that the Narendra Modi government had precipitated the crisis.
The basis behind her inference was unclear but an insinuation that the CJI is amenable to political influence was clear. Will the Supreme Court will now be used to settle political scores?
The Congress weighed in on the crisis soon after. Rahul Gandhi’s contention that a “proper investigation” needs to be lodged into the death of special CBI judge BH Loya and the matter be “looked at from the highest levels of the Supreme Court” is equally dangerous when the Supreme Court itself is seized of the matter, had termed it a “serious issue” during the hearing of a recent petition and a two-judge Bench had asked the Maharashtra government to file judge Loya’s autopsy report.
For the Congress president to now call for the “highest levels of Supreme Court” to look at the issue may be interpreted as an attempt to interfere with judicial proceedings. It is not for Rahul Gandhi to advise the Supreme Court on the constitution of the bench. It is profoundly ironic that his demands stem ostensibly from a “worry” that “judiciary’s independence is in jeopardy”.
Now that the die has been cast, it would be very difficult to contain these repercussions. Justice Kurian, one of the rebel judges who had appeared in the news conference, may hope that the “issue will certainly be solved since it has come to the attention”-as he told reporters on Saturday in Kochi-but that optimism isn’t shared by most.
According to judge RS Sodhi, “by going to the press in this manner, they (the dissenting judges) have breached judicial precedents and judicial discipline…” The retired HC judge told The Print “even if one wants a fairer system, there is something called a full court that procedurally addresses issues. But by attempting to strong-arm the Chief Justice, they have denigrated the judiciary in the eyes of the Indian public and international judicial forum.”
Some, like lawyer Gautam Bhatia have called for this unprecedented event to serve as the touchstone for judicial reforms.
However, if the path for structural reforms is paved through an institutional crisis then the efficacy of action must be questioned. The point to ponder is whether the judiciary’s image will be strengthened, or weakened, after Friday’s events?
In former Attorney General of India Soli Sorabjee’s words to Bloomberg Quint, “the public image of the judiciary will definitely be affected. After all it is not a matter of majority or minority shareholders… They’re judges of the Supreme Court. And they should behave in a manner that doesn’t affect the image of the institution in the eye of the public. Maybe they have a point of view, but that’s no way to go about it.”
The judges may have acted in their best intentions and must have, as they proclaimed, answered the call of their soul. There’s no denying though that the biggest injury dealt by the fateful step is that henceforth every judgment (delivered even by the highest court of the land) might be robbed of sanctity in public perception. This is a stunning and irreversible damage.