Was it all for a better bargain, judges?

The current imbroglio in the Supreme Court is being falsely represented as an issue of senior judges not being given sensitive cases. It is being passed off as a problem with the roster which the Chief Justice decides. The four judges had claimed that they were discharging their duty to the nation. The nation thought that the agitation of the four judges was against arbitrariness and corruption. We have been proved wrong. It appears the public venting of anguish was only a ploy to get a better bargain and recognition as senior judges!

There is a deeper problem which is not being addressed. Citizens believed that this issue only reflected the fact that there is too much arbitrariness in the ways of our judicial functioning. But there is arbitrariness in the way the higher judiciary is selected in the first place, with India being the only country where only judges can select other judges.

There is no transparency or a logical, justifiable process. The arbitrary collegium system of judges appointing judges started in 1993. It is worth noting that this system of selecting judges was never mentioned by the Constitution or any law of Parliament. Yet, the Supreme Court ruled that this was the constitutional intention! This was meekly accepted by the Executive and Parliament, but should have been questioned.

Effectively, the Supreme Court had amended the Constitution and sanctified this by its judicial order. The Parliament and 20 state assemblies passed a constitutional amendment to correct the Supreme Court's diktat in 2014, which the apex court ruled as ultra vires!

There is a reluctance in the judiciary's decisions to interpret the law as passed by Parliament or laid out in the Constitution. There is a great propensity to give different spins to many cases and justify deciding these on a "case to case basis".

With arbitrary selection of judges and a propensity to interpret laws in different ways is coupled unbridled arbitrariness in hearing and deciding cases. It is common experience that cases of a similar nature which would have been initiated in the same court may be decided even at a gap of 10 years.

Article 14 of the Constitution, guaranteeing equality before law, is violated each day in the courts of India. So also, the fundamental right to speedy justice, which the Supreme Court itself has ruled is a fundamental right of citizens.

The present issue is being touted as an issue regarding allotment of cases to certain judges. There is talk that the chief justice is not giving the seniors sensitive cases. Some attempts at reconciliation were going on amongst the "brother judges". It appears that a give-and-take reconciliation may have resolved the problem.

When the four judges said they were discharging their duty to the nation, did it mean that they were only fighting for their recognition as seniors? If that was the case, we were fooled into believing that there was a larger cause.

Shun arbitrariness

If the solution is to allocate the cases by seniority or that the collegium will decide on this, it will be a fraudulent agreement perpetrated on the nation. To claim that seniority of a few years makes judges wiser and more honest is foolish and false.

The system must recognise that all judges, including the chief justice, must be assumed to be of comparable knowledge and integrity. Hence harping on seniority, getting judges to appoint judges, arbitrarily interpreting the Constitution must stop. Arbitrariness cannot be passed off as deep wisdom.

To give one example of the ridiculous arbitrariness: the Supreme Court ruled that citizens have a right to know about the assets of those who want to become public servants.

Subsequently, in RTI cases, the same Supreme Court has ruled that citizens do not have the right to know about the assets of those who are public servants! This is like saying that if a girl and boy want to get married, they must disclose certain information about each other. But if they are already married, they need not disclose the information. There are many such instances.

The actual issue being alluded to was dishonesty and corruption, which must be addressed. Defence of arbitrariness is being passed off as a requirement for judicial independence, and maintaining the dignity of the institution!

The issue appears to be a storm in a teacup because of some egos, instead of being about saving democracy. It was reported that the issues had been resolved over a cup of tea. The people and the nation would have gained if the scourge of arbitrariness in deciding cases, hearing them, appointing judges and allotting cases amongst others had been decidedly reduced.

Alas, this dawn seems far away right now! This spring made a promise that it did not fulfil. The winter will continue and the four judges will get greater importance in the Supreme Court. We, the people, have begun to doubt the idea of idealism and a better State.

(The writer is a former Central Information Commissioner)