The recent ‘rebellion’ of four senior judges of the Supreme Court has shed light on the goings on in the higher judiciary. It has prompted senior legal experts to suggest the ‘rebellion’ has created crisis for the judiciary, betraying sense of alarm of those who enjoyed spoils of power inside a cloistered citadel.
The problems did not start recently. Ever since the Republic became a battlefield of conflicting ideologies, the higher judiciary had come under tremendous pressure and influence of politicians. One can easily trace it back to the pre-Emergency days, when Prime Minister Indira Gandhi was outmanoeuvred in the Allahabad High Court and unseated from Rae Bareli for ‘corrupt practices’.
The refusal of vacation judge Krishna Iyer to grant a stay to the verdict and how Gandhi famously won a favourable verdict from the Constitution Bench after clamping Emergency are incidents that saw clear political interferences and judges being influenced by political considerations. However, the general tendency has been for the judiciary to preserve its turf thereafter. That did not mean that the politicians who controlled the levers of power had no say.
The general perception that the Indian judiciary has been free of political influence stems from several appreciable verdicts that have been given in several cases involving politicians and politics. However, judges are not angels sent from heaven but picked from the very society we live in. If the public has a perception about their righteousness it is because there is a cover of sacrosanctity traditionally bestowed on members of the judiciary over the ages, all over the world. It is meant to prevent judges from being criticised or ridiculed even when they are wrong and for verdicts that may be unfavourable to the high and the mighty.
This was the spirit behind the very idea of contempt of court. We have heard of King Solomon, or closer home, Emperor Vikramaditya and his legendary chair. But most judges in the modern era are not sharp as lawyers who try to influence them. It is said the best legal minds remain lawyers, while the less successful ones become judges. There are several honourable exceptions though.
And there is no denying the fact that there is no substitute for hard work. Also, a judge is often guided by the sanctimonious hype built around him/her and rise above normal human fear and temptation while dealing with several cases. Thus, India’s judiciary has served the cause of public good in several instances.
To give the most recent example, the bench led by the Chief Justice of India Dipak Misra has asked BJP states that imposed a ban on exhibition of the movie, Padmaavat, over-ruling the reprehensible contention of the Union Government’s representative that the legend was history. In doing so, the court once again declared the freedom of expression as supreme, subject to only a few restrictions. However, the following days may see BJP government siding with regressive elements trying to re-impose the upper caste code on the issue.
That would just be a reflection on how Prime Minister Narendra Modi respects the judiciary. Ever since his Government has come to power, there have been unprecedented pressure on the judiciary, reminding old timers of the bygone Emergency era. The judiciary has fought back in several instances with the best example being the striking down of the National Judicial Appointment Commission Act, which gave the executive power over the judiciary in appointing judges.
But we have also seen unnecessary paean from Chief Justice of India H L Dattu in early 2015 for Modi (good leader and visionary) and later CJI Thakur driven to tears in the PM’s presence, while talking about how appointment of judges to higher judiciary was stalled by the executive leading to literal blocking of the justice delivery system. For anyone who had his eyes and ears open, these were clear signals of how the BJP Government at the Centre was trying to arm-twist the judiciary.
The present scenario came about after the four ‘rebel’ judges noted that several cases which were sensitive were being allotted to relatively junior judges, bypassing seniors. To counter the narrative, a judiciary correspondent with a national daily close to the powers that have been trying to manage the judiciary did a front page report pointing to several previous instances where sensitive cases were allotted to ‘junior benches’. But he conveniently left out several other important cases that were handled by the ‘senior benches’ during the same period. Such motivated leaks have been the hallmark of the NDA regime.
What seems to have got the ‘rebellion’ brewing was a combination of factors. On the one hand was a judge who was generally unhappy over his brother judges for denying him what would have been the rightful place of becoming the CJI. Then there was the present CJI, who was being pressured by the executive to toe its line in sensitive cases because the government could otherwise make life difficult for him, based on a CBI case against a high court judge. In between these two were three judges who agreed with the former that they were being bypassed in politically-sensitive cases. The turning point came when a petition to inquire into the death of a lower court judge, B H Loya, was assigned to a bench comprising one judge who has handled several cases involving the Gujarat Government and gave it favourable verdicts.
With the legal fraternity gripped with the feeling ‘no one was safe if one doesn’t toe the line of the powers that be’, and a family of an upright judge had been denied justice, the other three judges seem to have decided enough was enough.
Judge Loya was handed over charge of the Sohrabuddin Sheikh encounter case after another judge hearing the case for years was transferred without reason. A Caravan magazine report claimed that Loya told his sister that he was offered Rs 100 crore to drop Amit Shah’s name from the case. A section of the media is now working overtime to prove that Loya died a natural death and his heart attack was not induced, despite glaring discrepancies in the medical reports and claims by police and two fellow judges who accompanied him out of the city for a wedding. The Rs 100 crore offer allegation is directed against the chief justice of the Bombay High Court too. Incidentally, judge M B Gosavi who replaced Loya, 15 days after his death, in another 15 days read a 10,000-page CBI chargesheet and discharged Amit Shah in the case that was pending for almost 10 years. So, should not the media focus on these matters?
(Published on 22th January 2018, Volume XXX, Issue 04)