‘There is one thing that journalists and lawyers have in common, we both love to gossip!’ a senior jurist reminded me helpfully a few days ago. In the week since four Supreme Court judges virtually ‘revolted’ against the Chief Justice of India, gossip has often replaced fact. Then, whether it be CPI leader D Raja’s meeting with Justice Chelameshwar or the prime minister’s principal secretary calling on Chief Justice Dipak Misra, or reports of a judge ‘breaking down’ during a meeting of the full court, every move has been gleefully speculated upon. Lost in the clamour is the real significance of what happened on a dark but revolutionary Friday for the judiciary.
There are four core issues that lie at the heart of this ‘revolution’. Firstly, the four seniormost judges by their unprecedented action have firmly put the spotlight on judicial accountability, a grey area that has been debated in seminars but rarely translated into concrete action. This isn’t just about who will judge the judges but even more importantly, who will judge the chief justice. By going public with their grievances, not only have four senior judges questioned the efficacy of the internal redressal mechanism of the Supreme Court but, in effect, challenged the unbridled authority of the Chief Justice to be Master of the Rolls. It is apparent that the judges are accusing the Chief Justice of ‘bench-fixing’ and thereby expressing a lack of faith in the office of the chief justice. The message is loud and clear: the chief justice’s office cannot be above legal scrutiny: being master of the rolls is for administrative convenience but doesn’t confer automatic immunity.
Secondly, there is an even graver concern of judicial corruption that needs to be examined. While no names have been explicitly spelt out by the four judges, it is now apparent from the transcripts in the Odisha medical admission scam that the role of senior judicial officers must be investigated. If the CBI has mentioned ‘illegal gratification’ by a judge in its preliminary inquiry, then surely permission must be granted to file an FIR against the concerned judge: failure to do so will only raise troubling questions over whether there is a concerted attempt to protect specific high ranking individuals.
Thirdly, there is the vexed judiciary-executive relationship that is under the scanner. That this equation has been marked by growing mistrust was obvious when the former chief justice TS Thakur broke down in front of prime minister Modi over criticism of the judiciary. While the judiciary has zealously tried to protect its turf, the political executive has long felt that judicial over-reach has eroded legislative authority. Moreover, the allurement of potential post-retirement benefits has meant that individual judges could be vulnerable to political pressures. When retired chief justices are appointed governors and heads of government committees with a range of perks and privileges, there is a temptation to believe that judges can be enticed to discriminate in favour of the ruling political class while in office (surely, there should be a minimum two year ‘cooling off’ period at the very minimum before a Supreme Court judge accepts any benefit from the government?). Then, be it the recent Judge Loya case, or indeed, the upcoming potentially explosive Ayodhya matter, there is the lurking fear that judgements in ‘politically sensitive’ cases could be manipulated.
Finally, there is the question of institutional integrity which is now being highlighted. How does an institution retain its moral and legal sanctity if it is split wide open on issues of conscience? Public confidence in the judiciary was built around the belief that our judges were men and women of honor and character. In recent times, amidst whispers of possible mischief in the courtrooms, that confidence has been shaken. Indeed, reports of judgements being ‘fixed’ have been far too persistent for them to be entirely ignored any longer or treated as aberrations. Which is why it has been important for atleast a few good men to stand up and be counted.
Modi-sceptics would have you believe that these judicial ailments originated in the BJP’s massive victory in May 2014 that convinced the political leadership that it could bulldoze the courts to fall in line. Truth is, the present crisis of the Indian judiciary stretches back to a period when judicial appointments were made in a non-transparent manner, first by an imperious political leadership during the Indira era, and later, by a tightly-knit collegium of judges. The collegium system was originally meant to protect the judges from the excesses that set in during the Emergency years when the supersession of judges left the judiciary vulnerable to political interference at the highest level. Unfortunately, allowing judges to be their own masters in appointments and transfers has resulted in a scenario where our judiciary under the guise of judicial ‘independence’ has functioned like a cosy, opaque club. Often protecting its own, this club has used a mix of legal weapons like contempt of court and constitutional guarantees like a cumbersome process of impeachment to build an almost impenetrable wall of silence and secrecy (the number of judges who have been sought to be impeached for judicial misconduct since independence remains in single digits). It is that wall which has been now breached by the Chelameshwar-led revolt, forcing some sunlight at last over what happens within the dark confines of judicial power. Which is why the courageous action of the ‘rebel’ judges deserves two cheers: a third cheer would follow if the revolt
results in genuine reform and transformation.
Post-script: A whatsapp joke that has gone viral calls for the BCCI to now appoint a three member committee to reform the Supreme Court. When a venerable institution becomes the butt of jokes, it only emphasizes the urgent need to repair a creaking system before it is too late.