A malaise deeper than meets the eye

Source: The Hitavada      Date: 15 Jan 2018 10:22:29




By Vijay Phanshikar,









Way back in the early 1970s, the venerable Mr. Justice Bhawanishankar Niyogi and Mr. Justice S.P. Kotwal, then Chief Justice of Bombay High Court, sat together one evening in Nagpur -- sharing tea and vision. As usual, a lot of things were happening in the country that had just seen a massive victory in a war. All those events did figure in their discussion. But the conversation veered around to things that were happening in the judiciary. Of course, by then, the country had heard the term “committed judiciary”, being pushed by Young Turk Congress leader Krishna Kant. That term also had created much stir in the minds of not just the members of the judicial system but also the common people. Mr. Justice Niyogi, long retired, and Mr. Justice Kotwal, very much in the hot seat, discussed countless angles of the situation as regards judiciary. Both the visionaries seemed to conclude that the judicial system of the country was showing subtle fault-lines that could, some day, assume very disturbing proportions.

Having been a witness -- along with a couple of other persons -- to that conversation whose nuances were far too subtle and far too complicated to understand, all one could surmise was that something untoward may happen, sooner or later, in the country’s judicial system.

In the intervening years, a lot of things did happen, including supersession of judges, causing much disturbance in the society. Heated debates followed. Newspapers were full of articles arguing in favour of both sides. But the invariable conclusion that the apolitical intellectual class arrived at was that no matter the cost, the judiciary had to be kept away from political influence. For a while, things did seem to get rectified, though to an extent, and the country settled to acknowledging that.

But what happened on January 12, 2018, was absolutely unprecedented, and delivered a body-blow to the authority, dignity, sanctity and sanity of the honourable Supreme Court of India. Mr. Justice J. Chelameswar, Mr. Justice Ranjan Gogoi, Mr. Justice M.B. Lokur, and Mr. Justice Kurian Joseph stepped out in the open and accused Chief Justice of India, Mr. Justice Dipak Misra of selective allocation of cases and other improprieties. They also wrote a long letter to Mr. Justice Misra, and allowed its copies to reach the media.

Hell broke loose, as if. The Government took a cautious stand that the Supreme Court should sort out things internally. As organisations like the Supreme Court Bar Association braced themselves to initiate some effort seeking a solution, other organisations at state level lent support to the four judges who raised the issue.

Then came a twist. On Saturday, Mr. Justice Kurian Joseph insisted that there was no need of an outside intervention. That statement of his came as a shock as it was he who was one of the four who sought to make the issue public. It was he who was part of the foursome who should never have gone public on the issue that could be sorted out internally.
But when extraneous influences enter the arena, nothing stays in the zone of logic. Exactly, this has happened in this dark episode in the Supreme Court. No matter the appeals by many that nobody should draw a political mileage out of the issue, it is going to be increasingly impossible for anybody to keep political angles out of the episode.

Nothing can be more unfortunate than this. For, when four judges -- with the rankings of 2nd, 3rd, 4th, and 5th -- of the honourable Supreme Court take such a public position, it is more than clear that something much deeper is prevailing than meets the eye. No matter all that, the four judges have damaged the prestige of the country’s highest judicial court in an unprecedented manner, something that should never have happened.

Even as the people concerned with this ugly episode would consider all possible angles in search of a logically correct solution, they would never be able to clean up the dent that has been caused to the Supreme Court’s honour. And the situation becomes all the more complex considering that the dent has been caused by those very people who were supposed to guard the institution from any such damage.

Whether there is any actual political influence, howsoever subtle and silent, affecting the condition now, is something beyond ordinary persons’ comprehension. Let us believe that in this particular episode, there is no political action involved. Yet, as we take a look at what has been happening in the country’s judicial system from the lower-most to the top-most levels in the past few decades, then we cannot escape a feeling that the community of judges had engaged itself in various ways of doing -- or not doing -- things.

On many occasions, their ways were alleged to have been in complete contravention of the norm, while on other occasions, they played an internal politics that continued to eat at the vitals of the judicial process slowly and invariably. The common man, of course, never knew anything about all that happened behind the closed doors of the judiciary. Yet, he did carry an impression invariably that things were not right. And as this happened -- a silent erosion of the common man’s faith in the judiciary -- rumours of corruption in the system of deliverance of justice, too, did their savage rounds.

Because the judiciary has its own impregnable protection against attacks on itself by common people, things have remained in a more or less safe zone until now. The common people were very terrified with the very idea of getting dragged for contempt of court. Everybody realised that things were dirty out there, but none dared to speak up from the ranks of common people. Some lawyers did realise the nonsense in the contempt law and spoke against its provisions. But their ideas remained more or less in the category of powerless rantings.

But now, the four honourable and senior-most judges have opened Pandora’s Box. Now, everybody and anybody would be free to express his opinion without fear. For, when the four top judges speak of things, then how could they -- or anybody -- stop the common people from expressing their ire against the judicial system openly?

It is this question that should actually haunt all of us. Some of us may say that whatever has happened is good enough so that a thorough cleansing process would begin now. This is being naive. For, if this cleansing had to be initiated, the four judges should not have come out openly in public making allegations against the system of which they had been parts all their lives spanning decades of actual professional worth. They did claim that they exhausted all their internal options. But frankly, nobody is willing to believe them. For, no organisation -- let alone the Supreme Court -- is so dead to rational thinking as these four honourable judges now claim.

The process of allocation of cases to judges will always have an element of discretion and it could always be dared and altered with rational thought and persistent argument. The honourable judges might have tried to have things rectified. They might have met with a staid response. But that still did not mean that it was only the Chief Justice of India -- Mr. Justice Dipak Misra - who was perpetrating the so-called filth.

This must have been happening for years during which these honourable judges were on the Supreme Court Bench. For, for decades, the talk of suitable allocation of cases to judges has been in the air. Yes, for decades. The common man also knows, out of experience and not out of specific knowledge, that even senior lawyers, too, engage themselves in managing suitable allocation of cases to judges of ‘choice’. Then, why is it that the issue came up only at this juncture?

The answer to this question may never come up easily. For, the answer represents a malaise that has seeped much deeper than we can even comprehend. We must admit that from the days of “committed judiciary”, the nation has come a long distance on a trajectory that has had many patches of suspect nature.

It is because of this long history of such development that one’s mind darts back to that serious conversation between Mr. Justice Bhawanishankar Niyogi and Mr. Justice S.P. Kotwal more than four decades ago when the twosome sat in a contemplative mood and pondered over certain subtle but negative nuances they had noticed in the judicial system.