Why the whistleblower judges did us a service

To all those who are deeply worried and saddened by the “unprecedented and extraordinary” recourse adopted by four of the five senior-most judges of India to inform the nation that all is not well in

Published: 14th January 2018 04:00 AM  |   Last Updated: 13th January 2018 11:52 PM   |  A+A-

To all those who are deeply worried and saddened by the “unprecedented and extraordinary” recourse adopted by four of the five senior-most judges of India to inform the nation that all is not well in the Supreme Court, the answer is pretty simple: in a country where the political system and executive no longer carry conviction with the public, the only hope left is the judiciary. And only when this institution is protected and nourished will those manning it — the judges — have any value or purpose that makes them worthy of respect.

Typical of most discourses in India, where we tend to overlook the core and focus on the superficial, much of the play we have been seeing since Friday is that the four judges, all of whom are part of the Collegium, should not have gone to the extent of holding a press conference and making their views public even if the issues raised by them are genuine and fundamental to the survival of democracy. But that’s no different from saying that even if one notices a spark that could cause a fire, it should not be extinguished — let it burn down the house.

People of eminence — intellectuals and jurists — have held forth the view that a more appropriate course would have been to sort out the problem internally. But was this option not already exercised? Going by what the judges — whose integrity and commitment is beyond any doubt — said, they took this extreme step only after exhausting all other available methods. They spoke their mind to the Chief Justice of India orally and in writing and then waited in hope that the issues raised by them would be redressed.

In fact, Friday’s quake was bound to happen at some point or other. We have to go back a bit into the past to understand this. Our experience during the Emergency, when the judiciary was infamously described as having chosen to crawl when asked to bend, in due course led us to adopt the Collegium system by which judges appoint judges. Sooner than later, we realised that this too had its pitfalls.

There were enough warning signals. For instance, the lawyer father-and-son duo of Shanti and Prashant Bhushan went on record that the integrity of at least eight of the previous 16 CJIs was dubious. But after the initial furore the matter faded from our consciousness when in the normal course one would have expected the Supreme Court to either punish those who made the allegation or order a probe if the charges required investigation.

Instead, a smokescreen was created with the highest court turning aggressive on matters which clearly did not fall within its ambit, such as containing pollution during Diwali and managing traffic in our metros. When the judiciary pronounced upon such populist causes, it earned the judges easy approbation from the citizenry, which only served to obscure pressing institutional issues from their vision. The growing pendency of cases was paid lip service, and vacancies in the higher courts went unfilled. Whispers about money flowing in the corridors of courts and adverse reports about those being considered for appointment as judges were ignored.

The National Judicial Accountability Act (NJAC) was a much-needed window of opportunity for the Supreme Court to give confidence to people that those chosen as judges of the high courts or the Supreme Court are open to scrutiny by outsiders, civil society included. By a majority verdict, with Justice Chelameswar being the lone dissenter, the SC struck it down and retained power in its own hands.

The executive was happy to watch from the sidelines and let the court implode. And it did on Friday.
Keeping aside the point raised by the four judges that there is a lot to be desired in the manner in which cases are being allotted by the CJI to his colleagues, the fundamental question is the power of the CJI vis-a-vis the roster. Unlike in England where the Chief Justice is also called the Master of Rolls (MR), there is no such constitutional provision in the Indian judicial system.

What has come to be followed is based more on practice than any substantive law. On multiple occasions, this very court held on the judicial side that any reference to the CJI must be read as meaning the Collegium. There were no instances in the past when the CJI chose to drop a particular judge from a bench hearing a particular case unless the judge himself chose to recuse.

It is this very reading — that CJI means Collegium — that is followed in respect of appointment of judges: three-member Collegium in respect of appointment to High Courts and a five-member Collegium if it is for the Supreme Court. The logical question that would arise is if the CJI means Collegium and if that works for as important a matter as appointment of judges, should it not be the method to follow even for allocation of work? The seven-page letter written by the four judges, irrespective of what the final outcome would be, might well lead to this interpretation at some stage or the other.

None of us, including those who faulted the gutsy judges for saying publicly that the highest court is out of order, would want this institution to be derailed. In which case, two aspects are important: a) not allowing the issue to be side-tracked by asking whether CPI leader D Raja was right in meeting Justice Chelameswar soon after the presser.

The meeting is not of fundamental significance in this context. On a different note, none really cared when it came to light (if media reports are to be believed) that one SC judge and a Chief Minister gave exactly the same recommendation in respect of persons shortlisted for a High Court; b) it will be a fallacy to believe that an institution, even if it is as exalted as the judiciary, can be protected by not blowing the whistle when things are not going right. If exposing ourselves to sunlight to cure a virus is the only option, there is no point in hiding behind closed doors.

Three of the four judges who played the role of whistleblowers saying they owed it to the nation are due to retire this year. The one who has staked his career is Justice Ranjan Gogoi, who is due to become CJI in October. He deserves our salute.

G S Vasu

Editor, The New Indian Express and The Sunday Standard

vasu@newindianexpress.com

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