With all due respect
SHEKHAR GUPTA IN THE INDIAN EXPRESS
Four recent developments deserve close attention. These could add up to a very disturbing picture: of our higher judiciary being under siege, or on the defensive, or becoming a victim to a wider conspiracy it can’t read, or falling to a weakness it does not accept. But any which way you see it, the picture that emerges is worrying.
Here are the four instances I pick. They are entirely unconnected but, when seen together, should make not just our highest judiciary and jurists but also all the rest of us, who value our democracy and total judicial freedom and respect a system of democratic checks and balances, sit up in some alarm.
* Just last week, at a short and dignified function in a central Delhi auditorium, Union Law Minister Veerappa Moily’s book on the Ramayana was released. No problem with that. It was released by Justice S.H. Kapadia, who recently took over as the 38th Chief Justice of India. No problem with that also, or maybe. In his very short speech, Justice Kapadia complimented the law minister not just for his scholarship, but also for the fact that this minister takes all his decisions based on “honesty and integrity”. Of course, he went on to clarify that he did not mean that other ministers did not do so. It is just that he knew more about this one. Any problem with that? None, maybe, for now. Except that such public praise can come back to haunt you given the history of healthy, and sometimes not quite healthy, tension between the two institutions, judiciary and executive.
Another week prior to that, Moily himself had launched a remarkably sharp attack on one of Kapadia’s predecessors, Justice Ahmadi, accusing him of diluting the case against Union Carbide and thereby letting Warren Anderson get away. To some of us, it seemed odd that a serving law minister should be attacking a former CJI in public on a judgment delivered by him as the head of a Supreme Court bench. Even more so when the Bhopal case had been deliberated upon by two benches that included, among their distinguished members, four judges who eventually served as Chief Justices of India — Ranganath Misra, M.N. Venkatachaliah, K.N. Singh and A.H. Ahmadi. Moily was sharply criticised by this newspaper editorially for what some of us saw as an attack on the highest judiciary in an Emergency-like tone (even though Moily is essentially a democrat, not the H.R. Gokhale of the Emergency). But of course no one in the large community of eminent jurists rose to Ahmadi’s or the Supreme Court’s defence. In fact, since then, it has become common for NGOs and the media to unhesitatingly describe Bhopal as an outcome of “collusion between politicians, bureaucracy and the judiciary”. In an unconnected, but very relevant development earlier, the government, in response to an RTI application, had stated that Justice Y.K. Sabharwal could not be appointed as National Human Rights Commission chairman (who has to be a former CJI) because of adverse media reports against him, even if that meant keeping it vacant for a year and a half. When was the last time, except during the Emergency and the unstable but dictatorial period leading up to it, that the executive, and the thinking classes, made a habit of ridiculing the Supreme Court and former CJIs like this? And could the executive have ever got away with it?
* The Supreme Court still does not seem to know what to do with Justice Shylendra Kumar of the Karnataka high court, who has emerged as a whistle-blower of sorts. Internal democracy being one thing, how seriously would the executive take an institution which can neither protect itself from its own nor satisfy the dissenting voices from within? Could it just be that the Supreme Court’s own flip-flops over Dinakaran, Shylendra Kumar’s Chief Justice in Bangalore, have so weakened it morally as not to be able to keep dissent within itself? And if it cannot keep dissent within itself, can it be confident of always keeping its powers, particularly of appointing judges and managing the entire judiciary, within itself and unchallenged by the executive?
* The fourth point is where, in some ways, it all — decline of moral authority, if I may dare to call it, pushing my freedom of speech and maybe also luck — began. This was the weak, unconvincing and ill-advised manner in which the Supreme Court responded to the issue of making judges’ assets public. Having themselves forced the elected political class to declare their assets, the judges needed to find more convincing arguments to counter the growing public opinion that they were shy of subjecting themselves to what they mandated for others. This was further complicated by the way they handled the issue of whether the Chief Justice’s office should come under the ambit of RTI.
Read together, these instances underline a disturbing phenomenon: where higher judiciary could be losing, or at least begin to be seen to be losing, some moral authority and, more importantly, popular adulation and support. Issues like judges’ assets, Dinakaran, many of the other appointments, unchallenged attacks by the executive on former CJIs, have all created an impression that the top judiciary today is either too weak to defend itself, or cannot, because it is no different from other institutions, particularly the executive. This is dangerous.
I had argued in National Interest (‘Noose Media’, IE, April 3) that the media had to be careful now as it was running the risk of breaking the social contract which emerged post-Emergency and which guaranteed its freedoms that were not clearly codified either in the Constitution or any legislation. It would be doubly distressing if the judiciary were to also head that way. The truth, however, is that judicial autonomy, and the deep-seated national belief that nobody should be allowed to mess with it, has also been earned through decades of democratic debate and evolution, and has been steeled through challenges and crises, particularly before and during the Emergency. Smarting under the rebuff of the Kesavananda Bharati judgment, Indira Gandhi had floated the idea of “committed judiciary” which peaked during the Emergency, but did not survive it. Just like the media, therefore, the judiciary woke up to a new dawn of moral authority, respect and freedom with the lifting of the Emergency. It has not looked back, at least not yet, and the people of India have only applauded it, at least so far. And if the judiciary’s highest stature among all our democratic institutions is again a reward of that post-Emergency social contract — as a guarantee against majoritarian excess — most of its autonomy has been scripted by itself. The judges’ appointment procedure, for example, is entirely self-created, and so far the executive has not challenged it. Judges, public opinion would say, may not be perfect and may make mistakes, but the executive can always be trusted to be vile as well as venal. So stay with the judges.
That notion is now under challenge. Indian democracy is now more mature, and therefore also more questioning. Issues of judicial accountability can no longer remain within, like family secrets. Surely none of our eminent jurists would like the higher judiciary to be seen as some kind of an exalted khap panchayat which takes all decisions about itself and about its own within closed confines of its own hallowed biradari. The judges’ conduct, whether professional or personal, cannot remain away from public scrutiny. And public opinion is now cleverer, and unforgiving. You can no longer, for example, get away with the argument that while the judiciary may be rotten at lower levels, it gives a glowing account of itself at the top. People now know that the judiciary is a self-managed and self-governed institution, that higher courts have administrative responsibility over the lower ones and therefore cannot escape accountability for the rot there. And as popular doubts and dissonance grow, people begin to ask, is the judiciary the same as the others? Like bureaucrats, politicians, even the media? That is the danger. Because the executive, or rather the political class, is watching this, and sharpening the knives.