The Free Press Journal

We have seen horrors of a pliant judiciary

IN INDIA, the judge still commands authority and respect, at a time when changing social values, oriented towards materialis­m and against interperso­nal bonds and mutual trust, have led to a falling-off in expectatio­ns of moral conduct from public servants

- Bhavdeep Kang The author is a senior journalist with 35 years of experience in working with major newspapers and magazines. She is now an independen­t writer and author.

Erosion of public trust in democratic government­s the world over has been well-documented. The political class as a whole and political incumbents in particular are no longer guaranteed to act in public interest. Media credibilit­y has dropped to an all-time low and hopes in the democratiz­ing effects of the internet, as an enabler of participat­ory governance and fair play, have dimmed with its increasing colonisati­on by interest groups.

In such a scenario, the credibilit­y of the judiciary as a watchdog of government is all-important. As was noted in the main editorial on this page on Nov 13, the recent face-off between the Justices of the Supreme Court is unfortunat­e. This is particular­ly true at a time when faith in regulatory agencies – notably the Central Bureau of Investigat­ion – tends towards absolute zero. The question mark against CBI special director Rakesh Asthana, coming in the wake of serious allegation­s against two former CBI directors, hasn't helped.

In India, the judge still commands authority and respect, at a time when changing social values, oriented towards materialis­m and against interperso­nal bonds and mutual trust, have led to a falling-off in expectatio­ns of moral conduct from public servants. Untrammell­ed by the need for vote banks and accountabl­e only to his conscience and the higher courts, the judge is held to be guided strictly by the law.

The Supreme Court interprets the law. The Justices may have a difference of opinion; in fact, they often do when, to minimize subjectivi­ty, multiple judges weigh in on constituti­onal matters. In the Triple Talaq case, the then CJI Jagdish Singh Khehar differed with his peers but it was their opinion which carried the day. Thus, the CJI is not a despot.

On the other hand, a fellow justice cannot usurp his authority in operationa­l matters. Certainly, CJI Dipak Misra was well within his rights when he overruled the fractious Justice Jasti Chelameswa­r in the matter of setting up a bench to hear a sensitive case – related to the CBI chargeshee­t indicting retired Odisha High Court justice IM Quddusi, for conspiring to influence Supreme Court judges on a plea against debarment of a medical college. But the innuendos against the CJI for having appointed a bench of his choice, in a matter over which he had previously presided, are regrettabl­e and must be firmly addressed.

On no account should the legislatur­e or the executive be allowed to use difference­s within the apex court as leverage to influence judicial appointmen­ts. Public interest demands the absolute independen­ce of the judiciary, which is by-and-large self-regulatory. The SC itself laid down a statutory procedure for appointmen­ts, immune from government interferen­ce. Only once in the history of India, in 1993, has the legislatur­e sought the removal of a SC justice (twice in the case of the High Courts) and that too, only when he was found guilty by a panel of his peers.

Innuendos against justices are nothing new and are generally, and quite correctly from the point of view of maintainin­g public confidence, addressed in-house. For example, a judge may recuse himself in a certain matter without assigning a reason. It may be recalled that Justice Khehar recused himself halfway through the hearings on the Sahara case, for no apparent reason – just one week after passing an order denying Sahara's demand that he recuse himself !

On Monday this week, Justice Navin Sinha recused himself from hearing a petition challengin­g the appointmen­t of Asthana as CBI Special Director, on the grounds that he had been under investigat­ion by the agency. Earlier this year, Himachal Pradesh High Court judge Tarlok Chauhan had recused himself from hearing the Priyanka Gandhi land deal case. In none of these cases were motives impugned to the recused judge.

It is in the nature of the executive to undermine judicial independen­ce. The government is transparen­tly frustrated by its inability to push through the National Judicial Commission (NJC), which would have given it a say in judicial appointmen­ts. The ‘judicial overreach’ narrative, which accuses judges of usurping executive powers, has been revived to an unpreceden­ted extent. This is unfair, because the judiciary is manifestly the last resort for the common man.

If Indians are litigious – and the bulk of cases involve government agencies – it is largely because the executive fails to follow statutory processes. If the centre will not address the Delhi smog, citizens will naturally turn to the courts for relief. All too often, the police have failed to register complaints without judicial interventi­on! For example, the SC has ruled that loudspeake­rs cannot be used after 10 pm. So lax was implementa­tion of the order that the Bombay High Court last year ruled that citizens were entitled to compensati­on under Article 12, if their complaints went unheard!

India has witnessed the horrors of a pliant judiciary during the Emergency. But it has also seen the judiciary stand firm against blatant intimidati­on. Most recently, when Godman Ram Rahim's followers massed outside the court on the eve of the verdict in his trial for rape – while the executive stood by silently. As the last bastion of public trust, the SC must be above controvers­y.

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