Re­form, my lords, so that you may pre­serve!

Peo­ple-cen­tric changes are needed to make the coun­try’s high­est court more ac­ces­si­ble

Governance Now - - COMMENT - ajay@gov­er­nan­ This com­ment has ap­peared on First­ in a slightly dif­fer­ent form. Ajay Singh

Since english philoso­pher John Stu­art mill coined the phrase, “tyranny of public opin­ion”, it is more of­ten used as a fig leaf for those whose last re­sort is pol­i­tics. That might be un­der­stand­able for political prac­ti­tion­ers in a democ­racy as they are guided by ma­jori­tar­i­an­ism. But judges are not – they are trained to in­deed con­tain the evils of this “tyranny”.

For those who have ac­cess to the por­tals of the world’s most pow­er­ful court, In­dia’s supreme court, the spec­ta­cle of four se­nior most judges rais­ing the ban­ner of re­volt against their chief jus­tice did not come as a sur­prise. It rather came as a con­spir­acy to change the course of his­tory.

“It was brew­ing for some time” is the re­frain if you talk to any­one con­ver­sant with what is go­ing in­side the apex court. let­ters were se­cretly writ­ten to judges and cir­cu­lated all around, point­ing out hid­den skele­tons in the cup­board. Insin­u­a­tions were ca­su­ally thrown at over the for­ma­tion of benches on cases of crit­i­cal eco­nomic and political im­por­tance.

and there were all in­di­ca­tions that con­firmed that there was some­thing stink­ing in the cor­ri­dors of the supreme court, to use jus­tice markandey Katju’s words while talk­ing about the al­la­habad high court. By all ac­counts, it seems there would be an at­tempt to treat this fra­cas as an aber­ra­tion and bury the hatchet to con­tinue busi­ness as usual. and that will be a treat­ment worse than the dis­ease. In fact, it would be pru­dent to go much deeper into the malaise that af­flicts the coun­try’s ju­di­cial sys­tem which stands in splen­did iso­la­tion, deeply hol­lowed and is im­per­vi­ous to any change within it­self.

look at the is­sues raised by the four judges and eval­u­ate if any of them is con­cerned to peo­ple’s wel­fare at large. Prima fa­cie, all of them re­late to work al­lo­ca­tion within the court. They ob­ject to the fact that crit­i­cal cases are be­ing passed over from benches com­pris­ing se­nior judges to ju­nior judges. In ef­fect, they im­plied that their ju­niors were less qual­i­fied to deal with the is­sue. at the same time they ap­ply the logic of the CJI be­ing “the first among equals” to ham­mer home the point that the CJI was equal to the rest of them. The man­ner in which the case re­lat­ing to jus­tice loya’s death is brought out to set­tle scores within the Sc smacks of pol­i­tics.

of course, the de­ci­sion to go to “peo­ple’s court” was pre­med­i­tated and not im­pul­sive. The façade of “public opin­ion” was in­vented to cover up a con­spir­acy by a clique of ac­tivist-lawyers who are in­ured to bul­ly­ing non-con­form­ist judges and set­ting agenda in the garb of ju­di­cial ac­tivism.

Is this ju­di­cial ac­tivism for public good? ap­par­ently, it is clev­erly garbed in the dis­course of public good to pro­tect the per­sonal turf of a se­lect group of lawyers. None of the is­sues raised per­tain to the is­sues that make the apex court in­ac­ces­si­ble to com­mon peo­ple. Take for in­stance, the lan­guage spo­ken in the higher ju­di­ciary: it is of­ten in­com­pre­hen­si­ble to peo­ple. Fees lawyers charge are ex­or­bi­tant. an ex-ias of­fi­cer, Har­ish chan­dra gupta, known for his im­pec­ca­ble in­tegrity but im­pli­cated in the coal scam, re­cently pleaded the court to put him in jail in­stead of putting him through the cha­rade of tri­als which he can­not af­ford.

The ju­di­ciary has kept it­self out of the am­bit of the RTI act and judges are not bound to de­clare their as­sets like other public ser­vants. The prin­ci­ple of so­cial jus­tice (eu­phemism for reser­va­tion in gov­ern­ment jobs) enun­ci­ated by the Sc aptly in the man­dal com­mis­sion mat­ter does not ap­ply to the ju­di­ciary it­self. The se­lec­tion of judges for the higher ju­di­ciary is not only opaque but ob­nox­iously clan­nish to say the least. The man­ner in which the Sc struck down the Njac was in­dica­tive of the higher ju­di­ciary’s aver­sion to re­form.

Iron­i­cally, jus­tice che­lameswar who led the Jan­uary 5 re­volt was the lone dis­senter in the Njac judg­ment. In his judg­ment, he quoted lord macaulay’s ar­dent ap­peal to Bri­tish par­lia­ment in 1831 to en­fran­chise the work­ing class. lord macaulay had un­der­lined the im­por­tance of re­form in or­der to pro­tect the roy­alty and rul­ing clique and said, “re­form that you pre­serve.” Per­haps, lord macaulay’s words can be re­phrased and dinned into the ears of the judges: “re­form, my lords, so that you may pre­serve.”

Ashish asthana

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