This dissent doesn’t help democracy

The four judges warned of danger to democracy, not realising their breaching the principle of separation of powers was the bigger threat

Published: 18th January 2018 04:00 AM  |   Last Updated: 18th January 2018 03:08 AM   |  A+A-

The conflict within the Supreme Court may or may not have been resolved but the issues it threw up certainly haven’t. The principle of arm’s length between the four pillars of democracy—the executive, Parliament, judiciary and media—has been compromised. When journalists and MPs act as choreographers in a dispute between the Chief Justice of India (CJI) and four seniormost Collegium judges, they damage not only the credibility of the media and of Parliament. They subvert the judiciary and with it the essence of democracy: the checks and balances of power.

The US judiciary has been largely immune to a serious loss of reputation. And yet the nine-member US Supreme Court, where unlike in India judges serve for life, is ideologically divided between Democrats and Republicans. One of the first steps US President Donald Trump took on assuming office was to impose his choice of conservative Supreme Court Justice Neil Gorsuch to fill a vacancy caused by the death of the highly respected Judge Antonin Scalia.

Despite their sharp ideological differences over issues like immigration, abortion and healthcare, the US Supreme Court stays aloof from everyday politics. The Indian Supreme Court has a mixed record in this regard. During the Emergency imposed by Prime Minister Indira Gandhi in June 1975, the apex court did not distinguish itself. Thousands of journalists, activists and Opposition politicians had been jailed under the Maintenance of Internal Security Act (MISA). High courts across India invoked the right to habeas corpus under Article 21 of the Constitution to free those jailed by the Congress government.

The matter reached the Supreme Court. Five of the apex court’s seniormost justices heard the case. To their eternal shame, four of the five justices refused the right of habeas corpus to the detainees. Justices A N Ray, P N Bhagwati, Y V Chandrachud and M H Beg wrote cravenly in their majority verdict: “In view of the Presidential Order [declaring Emergency] no person has any locus to move any writ petition before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention.”

Only Justice Hans Raj Khanna dissented, writing in his order: “The Constitution and the laws of India do not permit life and liberty to be at the mercy of the absolute power of the Executive. What is at stake is the rule of law. Detention without trial is an anathema to all those who love personal liberty.”

Over the years, the Supreme Court has rebuilt its reputation from the rubble of Emergency. But several problems still beset it. The court has not been able to mitigate corruption in, especially, lower courts. A sealed envelope charging several Supreme Court judges with corruption, presented to the apex court by senior counsel and activist Prashant Bhushan several years ago, remains sealed and ignored.

The backlog of over three crore cases has resulted in great injustice: many undertrials spend more time in jail than they would have had they served their maximum sentence on conviction. Court infrastructure remains antiquated. Senior lawyers charge extortionate fees, receive liberal adjournments and treat clients whimsically.

Instead of addressing these issues, the four judges chose to focus on the CJI’s “selective” assignment of cases to specific benches. Assignment of cases is the CJI’s prerogative. If the insinuation is that the CJI was being unfairly selective, the four dissenting judges could justifiably be asked why they were keen to be part of benches hearing specific cases. Imputing motives can be a slippery two-way slope.

The role of political parties, MPs and journalists in this squalid affair needs to be highlighted. Judges have little knowledge of organising press conferences. They were clearly helped in conducting the one they held with professional aplomb on January 12. Arm’s length instead became a lending hand, subverting the first principle of the relationship between the executive, Parliament, judiciary and media. Ironically, the four dissenting Collegium judges warned grimly of the danger to Indian democracy, not realising that their breaching the principle of separation of powers was by far the bigger threat.
Several sensitive cases handled by CJI Dipak Misra are likely to be heard soon. He recently ordered the appointment of a new Special Investigative Team (SIT) to probe the 1984 anti-Sikh genocide. He is also heading a bench that is expected to deliver the judgment on Ayodhya. The two cases could have a significant impact on the 2019 Lok Sabha polls.

The CPI leader and parliamentarian D Raja met Justice Chelameswar at the latter’s residence immediately after the press conference. Congress President Rahul Gandhi had reportedly been advised by his lawyers to call for strong strictures against the CJI, including possibly even his impeachment. Raja, caught on camera meeting Justice Chelameswar, put paid to that idea.

The judicial kerfuffle has not damaged democracy but it has damaged the reputation of the judiciary, of the media and of MPs. Senior Supreme Court lawyers had recently been chastised by the CJI for aggressively raising their voices during depositions. Some of these senior counsel, whose annual legal fee income crosses `100 crore, are often a law unto themselves. They bill clients even if a matter is not heard. A small cabal among them belongs to political parties and has served as ministers. Their angst against the current CJI is well known.

CJI Misra retires on October 2. Those who wanted to deprive him of the opportunity, before he leaves the Supreme Court, to deliver a well-considered verdict on Ram Mandir may be disappointed.

Minhaz Merchant
The author is an editor and publisher


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