The jury is still out after Indian judges revolt

Overnight, that awe has dissipated and everyone has an opinion on the way in which the confrontation with the Chief Justice of India, Dipak Mishra, is being analysed

By Bikram Vohra (Perspective)

Published: Sun 21 Jan 2018, 9:36 PM

Last updated: Sun 21 Jan 2018, 11:38 PM

Let us start at the beginning of this ugly episode in Indian jurisprudence and see how it unravelled. The Chief Justice of India (CJI) was cornered last week by four senior justices of the apex court in a public forum through a hastily announced press conference and literally accused of messing about with the established conventions and rules that have governed its functioning.
This certainly brings the institution into the realm of controversy. At the outset did these four exhaust all possible avenues of discussion and debate before taking the public road?
Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur, and Kurian Joseph could have held intensely heated discussions in private with the CJI and expressed their concerns and fears. There is no evidence of this. Then they could have ventured to visit the President or the Vice-President of India and sought their intervention.
The letter that was given to the Press does not say anything about the failure of any such meeting or series of meetings and seems to leapfrog straight from a sullen anger to a public attack from which there is no going back. The conclusion is devastating. The top-most echelons in the judiciary do not get on. Not as having different opinions on specific cases but in the basic administrative dispensation of justice.
In context, who will now sit in judgement on our judges? Like Ceasar's wife, the Indian Supreme Court has been above reproach and any criticism has always been tempered by a deep and abiding respect. For 70 years it has maintained that distance and that dignity. Despite the occasional hitch and doubt about its overreach, the awe has survived these decades. Over the past 50 years in media writing about the judiciary has always been dicey business. Between the greyness of sub-judice and the exalted status of the judiciary at the apex there have been 70 years of opaqueness, and the fear of contempt of the court has allowed for only the most guarded and circumspect commentary.
Even appearing before the relatively milky Press Council situated in Delhi and modelled on the judiciary as a watchdog of media probity was not a pleasant experience. Overnight, that awe has dissipated and everyone has an opinion on the way in which the confrontation with the CJI, Dipak Mishra, is being analysed.
But that said, there are some lacuna which should be addressed and taken seriously to ensure the battering is not permanent. For one, the controversy over the cases that were handed over to the less senior judges even mentioned in the media as lesser judges. These cases are at the core of the assault on the Chief Justice with the unspoken rider that in some way there was an element of manipulation and amenability in choosing 'friendly' judges. According to one report, there have been 15 super sensitive cases handed to judges junior to the four senior most. These include the Rajiv Gandhi assassination, the Bofors kickback, the Coal scam case of 2012 and the Vijay Mallya case of 2016. So it is nothing new.
This genre of statement gives the inaccurate impression of ineptitude or the exercise of an amateur option. These are not some greenhorns, but judges of the Supreme Court. There are 14 such judges and they sit in courts marked 1 to 14 with the Chief Justice in Court 1 and so on. But they are not juniors. It takes 30-35 honourable years in robes to reach that pinnacle in one's career and to question their capability is to indict all cases that have been tried by them as flawed and open to mistrial. The underlying suspicion then that their opinions were coerced is utterly unacceptable without irrefutable evidence. And we do not see that.
By this token, the concept of 'first among equals' does get mangled. There is no such thing. Barring unforeseen circumstances including illness and death or infirmity the Chief Justice's mantle is automatically handed over to the most senior judge and literally set in stone. Parliament has not yet thought it necessary to fiddle with this equation.
The new boss has an extra star and that is it, he is no longer equal. The best example one can offer is that of the armed forces. The Chief of the Army has a fourth star and his army commanders have three. They might once have been equal but now they are not. He is the boss.
Now if in the unlikely event a group of them decided to take on the chief and held a press conference against him, the actions would be instant and specific. All these army commanders would be confined to quarters, stripped of their powers and exposed to a court martial with the possibility of being cashiered for engaging in a mutiny against a superior officer. If we take the judiciary as a similar entity (actually it supersedes the forces with the CJI being third in line to a vacant presidency) then having thrown the dice the four judges must now either walk the talk and leave the field or make a watertight case against their boss. Letting things dangle indefinitely in the hope they go away is a pipe dream. Just as much as it is to expect the vat of goodwill and mutual affection to bubble over.
As things stand the situation is like a china bowl, precious, costly and rare. Once broken can be mended but the crack is always there.
Bikram Vohra is former Editor of Khaleej Times

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