Independent probe into SC muddle must

Posted at: Jan 17, 2018, 12:42 AM; last updated: Jan 17, 2018, 12:42 AM (IST)

LET’S be clear about what the current crisis in the apex court is not. We know that this is not a storm in a teacup that was to go away by Monday morning. This is not a personal tussle among the top judges that has spilt over in the public domain. This is not a dispute about who should decide the case of Judge Loya or a few similar cases. This is not a technical dispute about the power to decide the roster in the Supreme Court. This is not just about a serious allegation of corruption that points to the apex of our judicial system. In fact, this is not a dispute internal to the institution of judiciary.

This is about an actor that has managed to stay invisible through this crisis: the Modi government. This is, above all, about the relationship between the judiciary and the executive. Specifically, this is about an attempt by the government of the day to secure a pliant judiciary through Bench fixing. In the run-up to the Emergency, Indira Gandhi had demanded and, indeed, almost achieved a “committed judiciary”. The Modi government now seeks to achieve the same objective through a compromised judiciary. The protest by the four judges represents perhaps the last significant hurdle that the Modi government faces in this project. And judiciary is one of the last hurdles that it faces in its drive for total control. That is why the current crisis in the apex court is about the future of Indian democracy.

Let’s not be distracted by the loose gossip that accompanies any development of historic significance. Media and the Bar have seen intense speculation on the relationship among the top judges and their motivations. True, no action is entirely devoid of envy, ambition and pride. But the unprecedented action by the four judges, known for their integrity, goes beyond such small motives. None of them has anything to gain and almost everything to lose by doing what they did. Justice Gogoi runs the risk of losing his turn as the next CJI and the other three may lose on post-retirement sinecures. Besides, the press conference was too sudden (and clumsy) to have been orchestrated through a grand conspiracy. We have thus no reason to disbelieve that these judges were speaking the voice of their conscience. If they wanted to compromise, the CJI may not have gone ahead by excluding them again from the constitutional Bench.

 Let’s not get caught up in a limited procedural dispute about whether this was the right way to express their dissent. True, judges are supposed to speak through their judgments and not through the media. Their outburst has the potential of setting a bad precedent. The criticism by Justice Santosh Hegde and some other retired judges has a point. Perhaps the judges could have chosen another forum. What if the judges thought that the matter is so grave that it must be brought to public attention? At least that is what they seem to be suggesting when they spoke of “discharging a debt to the nation”. If that was the intent, we should be grateful that they chose the straightforward way of open, public expression instead of the dishonest route of planted stories and leaked letters. Debates about how to express dissent must not trump the point of what the dissent was about.   

 Let’s not limit ourselves to the technical dispute about who decides the roster and how. There is no dispute that under the present arrangement, the Chief Justice of India is the master of roster. But surely, the CJI needs remember what the courts tell the babus every day: yes, you have the power, but you cannot use it arbitrarily. There are procedures, practices and precedents. No one is saying that all “serious” or “sensitive” cases be given only to senior judges. The objection is about a pattern, of late, in which some top or inconvenient judges have been systematically kept out of, or removed, from cases the government has stakes in. What makes the roster crucial is its political significance. The CJI exercises twin powers of listing a case and assigning it to any Bench. In our judicial system where the Supreme Court sits in small Benches of two or three, and where cases drag for decades, this power can make or mar a case. This is why the CJI is so crucial to the justice system. This is why the government of the day may wish to keep the CJI in good humour, or on a tight leash.

Therefore, let’s not limit our gaze to only the case of Judge Loya. This is, no doubt, a crucial case and can implicate the second most powerful person in the country. The evidence in the public domain so far does indicate something fishy. It must be pursued to its logical conclusion. But it is equally clear that this case was no more than a trigger for the protest by the four dissenting judges. They were looking at a series of other cases in the recent past, which the Committee on Judicial Accountability and Reforms (CJAR) has meticulously documented. They must have been concerned about the cases that are to come up this year. In this year of the run-up to the general election, the ruling party’s electoral strategy hinges on the outcome of some cases in the apex court, including the Ayodhya dispute. More than ever before, the government needs a friendly CJI.

Instead, let’s pay more attention to the application for internal inquiry against the CJI moved by Prashant Bhushan on behalf of the CJAR this Monday. The petition makes a case for an internal inquiry in the matter concerning the grant of recognition to a medical college in UP. The Bench hearing this case in the Supreme Court was headed by the current CJI. The petition documents a disturbing pattern in which this dubious medical college got more than one favourable judgment from this Bench. It also provides details of findings of the CBI’s preliminary investigation into this case. The evidence prima facie shows a middleman who was promising a favourable judgment from the Supreme Court. Most tellingly, this petition annexes transcripts of telephone conversations between the middleman and college owners. The middleman gives “500 per cent guarantee” of a favourable judgment by “the Captain” in “the temple” in Delhi, provided “prasad” is given in advance. We do not know if this refers to CJI Dipak Misra, and whether the middleman was acting at his behest. But surely, this matter needs an independent and credible probe.

Let’s consider a possibility: could it be that the government is holding this and more sensitive material against the current CJI, leaving him with little option but to acquiesce. Since there is no set procedure for an inquiry against the CJI, the CJAR has approached the five seniormost judges after the CJI and has requested a probe. What happens to this request could determine the future of the Supreme Court of India.

Let’s keep an eye on the fate of the CJAR petition, but let’s not just watch. Justice Chelameswar, Justice Gogoi, Justice Lokur and Justice Joseph have ensured that unlike their predecessors during the Emergency, they cannot be accused of selling their soul. But the onus of saving the judiciary and the constitutional order does not lie merely with the judges. In the last instance, it lies with all the citizens. Let the citizens be prepared to act in this battle for safeguarding democracy.

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