English philosopher John Stuart Mill expounded the theory of the “tyranny of the majority”, in the 19th century. A variation of it, the “tyranny of public opinion” has often been used as a fig leaf by those whose last resort is politics.
That is not surprising because political practitioners in a democracy are guided by majoritarianism. India’s Supreme Court is a classic example of an institution which stood up to this evil of democracy. But history is hardly a mirror for the present, it seems.
Which is why it was surprising to see India’s judiciary, trained to contain the evils of this tyranny of public opinion, taking refuge behind it, as four senior most judges of the apex court did on Friday, when they rebelled against Chief Justice of India (CJI) Dipak Misra. They brought the murky goings on in the closed corridors of the Supreme Court to the “court of public opinion”.
For those who have access to portals of the Supreme Court, the spectacle of four of its senior most judges raising the banner of revolt against their Chief Justice did not come as a surprise, but rather a conspiracy to alter the course of history.
“It was brewing for some time” is the general refrain if you talk to anyone conversant with what is going on. Letters were being secretly written to judges and circulating, pointing out skeletons in cupboards hidden from public view. Insinuation and innuendo over the formation of benches on certain issues of critical economic and political importance were the order of the day.
And there were all indications that there was something stinking in the corridors of the Supreme Court, to borrow a phrase from Justice Markandey Katju (he was referring to the Allahabad High Court). All this was exposed in a jiffy as the judges pointed fingers at CJI’s alleged indiscretion in allocating cases to benches and his other administrative functioning.
Attempts will be made to treat this fracas as an aberration. To bury the hatchet and continue business as usual when the Supreme Court meets on Monday. Such treatment would be worse than the disease. It would be prudent to dig deep into the malaise that afflicts a judicial system that stands in splendid isolation, deeply hollowed and completely impervious to any change within itself.
Look at the issues which are raised by four senior most judges and evaluate if any of them is concerned about people’s welfare at large. Prima facie, all of them relate to work-allocation within the court. They object to the fact that critical issues that grab headlines are being allotted to benches comprising junior judges and senior judges are being passed up. In effect, they are implying their juniors are less qualified to deal with these cases.
At the same time, they apply the logic of Chief Justice of India being “first among equals” to hammer home the point that the CJI is equal to the rest of the bench. The manner in which the case pertaining to the death of Justice Loya is being brought out to settle scores within the Supreme Court smacks of politics.
It was hardly a coincidence that senior advocate Dushyant Dave wrote a piece in The Indian Expressaccusing the CJI of administrative overreach on the day the four judges chose to go public. Was their decision to go to the people impulsive and not premeditated? Is the facade of “public opinion” being used to cover up a conspiracy by a clique of activist-lawyers who are known to bully non-conformist judges for setting political agenda in the garb of judicial activism?
Is this judicial activism for the public good? Apparently, it is cleverly garbed in the discourse of public good to protect a select group of lawyers’ personal turf. None of the issues raised by these activist-lawyers pertain to the issues that make the country’s highest court inaccessible to common people.
Take for instance, the language spoken in the higher judiciary. It is often incomprehensible to people and the fees charged by lawyers is so exorbitant that an ex-IAS officer Harish Chandra Gupta, known for his impeccable integrity but implicated in the coal scam, recently pleaded with the court to put him in jail instead of putting him through the charade of trials which he could not afford.
But this is not the only issue. The judiciary has kept itself away from Right To Information Act and judges are not bound to declare their assets like other public servants. Similarly, the principles of social justice (euphemism for reservation in government jobs) enunciated by the Supreme Court aptly in the Mandal Commission report does not apply to the judiciary.
And the selection of judges to higher judiciary is not only opaque but obnoxiously clannish to say the least. The manner in which the Supreme Court struck down the National Judicial Appointments Commission (NJAC) passed unanimously by Parliament was indicative of the higher judiciary’s aversion to reform. Ironically, Justice J Chelameswar, who led the revolt by four judges was the powerful dissenter in the NJAC judgment.
In his judgment, Chelameswar quoted an ardent appeal for reform by Lord Macaulay to British Parliament in 1831 to enfranchise the working class. He underlined the importance of reform in order to protect the royalty and ruling clique and said, “Reform that you preserve”.
Perhaps on Monday when the Supreme Court meets, Lord Macaulay’s words can be re-phrased and dinned into the ears: “Reform, lordships that you may preserve”.