Dramatic incidents have happened in the apex court of India on the afternoon of January 12 when four ‘senior’ judges made their rift with the Chief Justice of India, Dipak Misra public. As we know, this is unprecedented.
The protagonists made public a letter written by them, addressed to the CJI which tells serious departure from the conventions and how it has affected the judicial institution leading to undesirable and unpleasant consequences. The senior judges were unhappy on the allocation of significant cases to ‘junior’ judges that would affect the nation and institution. It implies that the external interference is seen in allotting cases of significance to particular benches or the power has been surrendered to someone else ignoring the ethics. Or, in other way, the parties get access to decide the bench of their choice. Here, the innuendos aim, not only to the CJI but their own brethren in the institution.
Think over it, if such a remark is made by the laity, definitely the sword of contempt of court would have swept their heads off. A year ago, not a common man but a judge of a Constitutional court used his constitutional ‘right’ of freedom of speech and expression and he was released from jail only few days back. Yes, it was none other than Justice Karnan.
A serious contradiction can be seen in the letter: the letter categorically tells that ‘CJI is only the first amongst the equals-nothing more or nothing less and hence all the judges are equal’. If so, how can they claim ‘seniority’ in allotting cases? In fact, they demean the competency, efficiency and, to a great extent, even the integrity of the ‘junior’ judges. The verdict is treated as the verdict of the Supreme Court irrespective of the fact that it was pronounced by ‘junior’ or ‘senior’ judges.
Hence, if all are equal, all are supposed to be competent to handle cases of any kind. What is the implication conveyed by the statement that significant cases are allotted to junior most judges? The ‘seniors’ expect to get such cases in their bunches. If someone suspects that they too have vested interests to have such cases in their bunches, can he be blamed? Hence, the allegation is like a double sided sword.
Also, they claim that they protested to protect the interest of the institution maintaining transparency. Their aim was to uphold the democratic rights. Don’t they have such rights? Yes, but would they be tolerant to such outbursts by a common man, nay, even a judge who once held a constitutional power in the judiciary. It was none other than Justice Markandeya Katju, who was let free from ‘prison days’ by tendering apology, for making ‘derogatory’ statements against the judgement in the infamous Soumya murder case.
It was Justice Ranjan Gogoy, who is one among the protagonists in the current drama, who initiated contempt of court proceedings against Katju. Markandeya Katju had made many irresponsible remarks on many a number of matters but his comments and observation in the Soumya case cannot be condemned so. These protagonists forgot the essence of the sermon “Do not judge, or you will be judged. For in the same way you judge others, you will be judged, and with the measure you use, it will be measured to you’’
Again, most importantly, meeting by D Raja, CPI leader with J Chellameswar in his house casts shadow on the genuineness of the claims by the ‘senior’ judges since it gives sufficient room for suspicion of a dirty political game behind the dramatic events.
Then, don’t they have the duty to correct the institution if they are well aware of an existent or imminent danger that harms the system? Yes, they are duty bound to do it but it has to be done within the system and not destroying the system by washing the linen in the public. None will have an opinion that our judiciary is cent per cent perfect and corruption free.
Corruption is so rampant that even the judiciary is not free from it. Higher the judiciary, greater the corruption. Even then, to a great extent, it is the last resort to the aggrieved. Hence a system is to be maintained so that correction can be eliminated. Killing the institution is not the solution, as retorted by one of the ‘junior’ judges to the 4 protagonists, as reported. As the junior judge retorted, they wanted to tell the world that only senior judges are competent to handle cases and junior judges are not, by going to the press, as reported.
Whatever may be their justifications, reliability rests on reputation also. Some argue that constitutionality and transparency are more important than reputation. What is the relevance of constitutionality, democracy and transparency if the system doesn’t exist.
Solutions exist in several to save the system if they seek in a sincere way. But they didn’t use them but crossed the borders. They could have called for a full-court meeting with agenda where the judges could have discussed the issue and found a solution. Or, they could have written a confidential letter to the President and he could have in turn made a reference to Art.143 of the Constitution and we have a legal luminary as our President. Such a reference will be heard by a Constitutional Bench which is a primary demand by the protagonists. And, they could have, at least, discussed the grievances before they went to the press. It is seen that the four has not raised this issue with the rest until this outburst.
Now, in fact, the protagonists killed the bird in the guise of saving it. But it has to be resurrected as Phoenix from the ashes of rift in the system. Accountability makes one’s actions transparent. Hence, accountability and transparency are directly proportional. Now judges are not accountable to anyone or at least they feel so.
In 2010, Judicial Standards and Accountability Bill was introduced in the Parliament to ensure transparency in the judiciary .A National Judicial Oversight Committee is to be constituted, as proposed by this bill, for introducing innovation and transparency in the system. Besides, the Code of Conduct formed in 1997 has been made a part of this Bill. Had it been passed as a law instances of misconduct could have been checked and such officers could have been removed by the government through parliament proceedings. But the objection was raised from higher judiciary itself.
The dictum ‘power corrupts’ becomes so significant in the case of judiciary. The most pathetic thing in regard to Indian higher judiciary is that corrupted officers can scot free even if caught red-handed. Though there is a Judges (Inquiry) Act introduced in 1967 no effective measures have been taken till now. It is a toothless tiger.
Now the judiciary itself set the wheel in motion for such an enactment to clean the dirt from the system and such an act like the National Judicial Appointments Commission can be introduced inculcating the positive provisions in the Judicial Standards and Accountability Bill without infringing the freedom of judiciary so that the opaque system of collegium can be rooted out.
(Adv Sanal P Bhaskar is a Journalist, Writer and Legal Practitioner)
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