Judges' 'revolt': you may fault their form, not substance

It is wrong to regard a country's constitution as an inert document, the renowned constitutional expert Subhash Kashyap once wrote. A constitution is a living organism of functioning institutions. Every constitution gets meaning and content only from the manner in which and the people by whom it is operated, the effects it acquires from how it is interpreted by the courts and the conventions and practices that grow around it in the actual process of its working, Kashyap had noted.

Kashyap's view of the constitution as a living document echoed the wise words of Rajendra Prasad, later India's first President, who, in his concluding speech on November 26, 1949, before the Constitution of India was adopted by the Constituent Assembly, said: After all, a constitution, like a machine, is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before themIt requires men of strong character, men of vision, men who will not sacrifice the interests of the countryWe can only hope that the country will throw up such men in abundance."

The words serve as a powerful warning to be recalled at a time the nation has been shaken by the unprecedented revolt by the four senior-most judges of the Supreme Court against the Chief Justice of India (CJI). This is a watershed moment that underlines the decline and fall of our highest institutions charged with guiding and guarding our noisy democracy. Other institutions may have failed but the judiciary, it was hoped, was a pillar of strength. The blowout is therefore distressing, and indicative of the deep rot that has kept "brother" judges from working out their differences and building trust in the discharge of their responsibilities.

There are two sides to this but the one overwhelming argument, and in many ways this is the only argument, against the four judges who spoke out is that they ought not to have gone to the press and could have explored other ways to correct the wrongs that they have seen or discovered.

That is an objection to the form, not to the content of what the judges have said. The criticism of the judges is limited to worries about how they have allegedly lowered the dignity of the highest court by coming out in the open.

But in essence, this criticism does not deny the rot; it only asks to keep covered what is already out in the open on conduct that has raised doubts in the minds of ordinary citizens. The dignity of the highest court of the land was already compromised and its image damaged.

In fact, the letter released by the four, Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph, who spoke out on Friday, says so in as many words: "We are not mentioning details only to avoid embarrassing the institution but note that such departures have already damaged the image of this institution to some extent."

Past time for compromises

The fact remains that the four judges tried to resolve the issues internally, have spoken to CJI Misra, have not revealed all the "details", and have little to gain by coming out in this manner in the open. The picture that this suggests is of a Supreme Court that is unable to address important and reasonable concerns raised by the judges themselves on issues that have far reaching implications for the future of India's democracy.

When four of the senior-most voices of the highest judiciary of the land feel compelled thus to come out in the open, it tells us about just how much has gone wrong in a system that works with the cardinal rule that "justice must not merely be done but it must also be seen as done" and that the behaviour and conduct of members of the higher judiciary must reaffirm the people's faith in the impartiality of the judiciary.

At the core of the complaint of the four is the manner in which cases are "selectively" assigned by the Chief Justice to the "benches 'of their preference' without any rational basis for such assignment." The complaining judges are, of course, referring to cases of "far reaching consequences for the nation and the institution", making it clear that this is not animosity but a charge that strikes much deeper into the heart of the court and its functioning under the present dispensation.

There has been a lot of movement in New Delhi over the weekend to try and find a compromise. But the time has now passed for an argument that otherwise carried merit - that the disputes must be resolved and processes settled by the eminent judges among themselves. Any attempt to resolve this behind closed doors will now not carry any conviction, given that with this is nothing short of an earthquake that has shaken one of the foundations on which the edifice of our democracy stands. We must not forget that also linked in the chain are important cases and petitions and orders - including one that asks for an investigation into the death of CBI judge B H Loya, who was hearing the case of an alleged extra-judicial killing in Gujarat in 2005, with its alleged linkages going right up to BJP president Amit Shah.

The stage is rife for all kinds of tales, pushed by politics, prejudices and interests. This is not the place to be for building confidence in the system of justice. The best recourse, therefore, is for the senior-most judges to continue to ask for well-established conventions and practices to be maintained with rigour so that there is transparency and benches and their constitution are not misread as being fixed.

(The writer is a journalist and faculty member at SPJIMR)

(The Billion Press)

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