The infamous judges’ press conference on 12th January and the events that transpired in and around it reveal that it is much more than the crisis of institutions that it is being made out to be. While basic common sense should make us question the permanency of the Constitution itself, the current crisis makes us question that unimpeachable legitimacy with which the judiciary claims to be the upholder of the ‘constitutional principles of justice’. It reminds us of what B.R. Ambedkar once said about the Constitution viz. “I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it happens to be a bad lot. The working of a Constitution does not depend wholly on the nature of the Constitution.”
While this reference to the ‘bad lot’ would automatically have been taken to apply to the political class, after the 12th January event, it seems to apply to certain sections of the higher judiciary too.
To begin with, the January 12th event itself was political and appears to have had little to do with any genuine desire on the part of the judges to reform the judiciary. If, indeed, such a genuine desire had existed, they would have expressed their concern long ago. Not only has the system of judiciary been in a state of rot, but the delivery of justice in accordance with a basic minimum of honesty has almost always been missing – a point that no one seems to be interested in talking about in the present crisis in the judiciary. What is the point of having an institution if it just becomes a cumbersome, too-big-to-handle machine which let alone doing its work inefficiently, fails entirely to do it?
That is what our judiciary has become at present. Based on an entirely Anglo-Saxon model of jurisprudence (as was mentioned in the infamous letter penned by the four judges on January 12th), our system of justice has had little contact with the spirit of the country and the Dharma and code of laws that had inspired so many ages of our civilization. To the contrary, the modern system of justice, of which the Indian Supreme Court proudly claims to be an exemplary representative, has become nothing more than an exercise in dehumanization.
As Sri Aurobindo summed up the European system of justice, “Under a civilised disguise it is really the mediaeval ordeal by battle; only, in place of the swords or lances of military combatants, it is decided by the tongues of pleaders and the imagination of witnesses. Whoever can lie most consistently, plausibly and artistically, has the best chance of winning. In one aspect it is an exhilarating gamble, a very Monte Carlo of surprising chances. But there is skill in it, too, and it satisfies the intellect as well as the sensations. It is a sort of human game of Bridge combining luck and skill, or an intellectual gladiatorial show. The stake in big cases is a man’s property or his soul. Vae victis! Woe to the conquered! If it is a criminal case, the tortures of the jail are in prospect, be he innocent or be he guilty. And as he stands there, — for to add to the pleasurableness of his case the physical ache of long standing is usually added to the strain on his emotions, — he looks eagerly, not to the truth or falsehood of the evidence for or against him, but to the skill with which this counsel or the other handles the proofs or the witnesses and the impression they are making on the judge or jury.”1
While this was written more than a century ago, one cannot help thinking about these lines in the light of the baseless letter that was released by the four judges on January 12th, highlighting their proud Ango-Saxon jurisprudence and lambasting the sitting Chief Justice, Dipak Misra, for deliberately tweaking the Court’s internal institutional procedures. All this was written without citing a single example (except the part where they lamented the delay over the finalization of the Memorandum of Procedure, pertaining to the appointment of judges – and, here too, they made invalid assumptions, taking the government’s ‘silence’ on the MoU to be its assent, and blaming the CJI for bowing to the executive).
Lack of any solid evidence or examples has left the field open to obvious political conspiracy theories – both, on the side of the opposition and the government. So, at the very outset, the ostensible desire, on the part of the four justices, to reform the judiciary internally was bound to be thwarted. There was no meaning to taking this vague half-plunge, letting the opposition conveniently hijack the rest of the agenda. If, indeed, the judges wanted to bring the reality before the ‘nation’, they should have spelled out exactly how democracy was in danger, instead of repeating the same lines which the intellectuals and the BJP’s political opponents have been parroting for the last three and a half years.
The left-liberal media was quick to weave a narrative and argue that the controversy surrounding Judge Loya’s death – who died while he was probing the Sohrabuddin ‘fake’ encounter case implicating BJP chief Amit Shah – was the trigger for the press conference, as one of the judges had so affirmed to a news reporter present at the conference. After the repeated pleas made by Loya’s son to leave the family alone as well as the nature and timing of the sensational expose, much has already been said – with strong evidence – to rebut the baseless speculation that Loya was murdered to ensure a favourable verdict for Shah. These reasons will not be explored here, though they are more convincing than the expose by the Caravan magazine.*
What should, instead, be highlighted is how the political opposition and certain members from the judiciary were quick to jump on the bandwagon and demand an investigation into the Loya case. When the Court decided to hear the case, rabid anti-BJP activists like Dushyant Dave and Indira Jaising (also present at the press conference) objected that it was already before the Bombay High Court – a very curious objection to the Supreme Court taking up the case. In any case, an SC bench headed by Justice Arun Mishra decided to hear the case – he recused himself after the January 12th event. The CJI was under intense pressure to assign the case to one of the four judges. Instead, despite this pressure, he has now assigned the case to a bench headed by himself (Merchant, 2018).
These political machinations show that the Loya case is too important a political hunt meat for the opposition to lose. So even though, the four judges have been, indeed, excluded from many other high-profile case benches over the past year, this became the trigger and prompted one of the judges at the press conference to candidly confirm the same to a reporter. Such a confirmation should have been a red flag pointing to the political nature of the conference, if anyone had been willing to even begin to question the whole drama.
The hand of the political opposition is revealed in the fact that the conference coincides with the beginning of the hearing on two other critical national cases – the Ayodhya case and the 1984 anti-Sikh riots case. Despite the pleas of Kapil Sibal of the Congress, the Court decided to hear the Ayodhya case from this February onwards. An adverse verdict for the Congress in the 1984 case would have completely decimated the opposition just before a series of assembly elections to the states and next year to the Lok Sabha. Similarly, an ‘anti-Muslim’ verdict in the Ayodhya case would have given a powerful boost to BJP’s efforts at Hindu consolidation and left the Congress and other parties, electorally, at a nadir. For the opposition it would have been similar to or even much worse than the triple talaq case, which has established a direct connection of sorts between the BJP and leading Muslim women’s organizations and activists and even Shia Muslims. In fact, a few days ago, a big organization led by the famous Muslim activist, Zakia Soman, sent a letter to the offices of all political parties, arguing that the imprisonment clause for Muslim men should be retained in the triple talaq bill. This petition, sent after long nation-wide consultations with Muslim women, acted as an unpleasant surprise for the Congress, which had stalled the bill in the Rajya Sabha with the stumbling block being the imprisonment clause for Muslim men.
Clearly, then, the opposition could not afford another such unfavourable verdict in such high stakes’ cases, just before the elections. Why not, then, put the CJI and the ruling party in the dock by capitalizing on the January 12th press conference? The motives and the actual people who triggered this conference and whether any of the four judges conspired with politicians will remain a mystery, but incriminating facts like those mentioned above, as well as, the presence of rabid anti-Modi activists like Indira Jaising and advocate Dushyant Dave at the press conference as well the meeting of Communist Party of India leader, D. Raja, with Justice J. Chelameshwar after the press conference, show that the January 12th event was not the war to liberate democracy and justice that it is ostensibly being made out to be.
That there were also some personal elements to the eloquently shrouded grudges of the four justices is made clear by their other grievances detailed (without examples or substance) in the letter released by them. They centre mostly around ‘bench-fixing’ and how the CJI is misusing his power as the Master of the Roster to skip the courts of the four senior-most judges after the CJI and assign cases to junior benches, with dark hints about how the CJI is bending to the pressures of the executive (here also, there are no examples and many major judgements like the Hadiya case, the national anthem case etc. would show that they are against the stand of the ruling party, while favourable judgments like triple talaq roundly resonate with the national mood).
Cases have been assigned to junior benches for the last twenty years and no fixed ‘conventions’ have been followed. So, the judges’ accusation sounds more like a personal grudge, since the four judges have been excluded from major benches. Undoubtedly, the CJI and his well-known three-judge bench have been active in most of the national cases. And even though the exclusion of the four judges is obvious, it would be near impossible to say that the verdicts in those cases went against the national interest.
This makes the current judges row, at one level, more of personal matter than an institutional one – and that is why, in addition to the lack of any evidence, the Congress refused to support the politically-motivated resolution of CJI’s impeachment deliberated by CPI(M)’s Sitaram Yechury, who decided to engage in this face-saving public gimmick after his position was undermined in his own party.
In fact, the entire bench-fixing grievance highlighted throughout the letter seems like an excuse to put a break in the functioning of the Court. It is obvious that the biggest reason is the disruption of the Loya, the Ayodhya and the 1984 riots cases. The story surrounding the Loya case proves that beyond doubt.
It is also pertinent to question that if, indeed, the four judges are so concerned about democracy and judicial integrity, then why haven’t they raised their voices over similar and much more serious concerns that have plagued the judiciary for decades. Does not judicial corruption, a mountain of backlog of delayed cases, and the opaque collegium system, constitute a violation of democratic norms and the judicial integrity? It would appear that these are much graver offences than the one denoted in the simplistic bench-fixing argument.
The politics surrounding the judges’ public conference shows that we cannot assign any kind of fixed sanctity to institutions and treat them as sacred, as is the natural tendency. Some of the worst injustices have been committed under the watch of this Court and some of the most regressive judgements have been passed, while it also remains normal for cases to be delayed and left hanging for decades together. Barring the Supreme Court, as we go down the rung of the judiciary to the lower levels, the rampant corruption is glaring. You need lakhs and crores of rupees just to get advice or an appointment with a lawyer, let alone the expenses incurred in actually fighting the case. Also, smaller civil courts function at the mercy of middlemen and the money they hog from their network of clients. It is a torturous process, as exemplified in courts like Delhi’s Tis Hazari, imbued with lethargy and corruption.
Aren’t these courts and the corpus of lawyers across the various rungs of judiciary, institutions as well? And yet, despite their rampant corruption, we still do not hesitate to treat ‘institutions’ as sacred. This bogey of sanctity needed to be broken for good. The only thing positive for the nation about the January 12th conference was that it broke the sanctified and fortified image of the judiciary – especially the invincible higher judiciary that often appropriates for itself the powers of the court of a god – shrouded in secrecy and imperialist in nature. For far too long, the judiciary had been embroiled in its own internal issues – far from invincible – bent on arrogating powers to itself, laboring under the delusion that it was a just upholder of citizens’ rights (even as the very idea of ‘rights’ has become a sham) and continuously stepping on the toes of the Parliament and annexing executive decisions to itself.
Most of the former CJIs lamented the decision of the four judges to go public. In effect, their very public washing of soiled linen has toppled the judiciary from its pedestal and put it on the same level as that of the other soiled political institutions of this country. The motives of the judges and the working of the judiciary are already being subjected to questions and speculations – something that would have been unimaginable before this press conference.
- Complete Works of Sri Aurobindo, Vol. 1, p. 497, Sri Aurobindo Ashram, Pondicherry