As a democratic country, we are on the brink of collapse. Even as we stutter from one crisis to another, we somehow convince ourselves that things are alright but the fact is, they are not. Among the three Constitutionally-created institutions—legislature, executive and judiciary—the last and the most hallowed should have sensed this first.
The latest to trigger a fresh crisis between the executive and the judiciary was the letter written by Andhra Pradesh Chief Minister YS Jagan Mohan Reddy to the Chief Justice of India in which he accused the second senior-most judge of the apex court as also some judges of the AP High Court of questionable conduct and took the extreme step of making it public. In a country where every institution prefers the least possible transparency while trying to gain every possible control over the citizenry, if needed by handing out threats, this was too much to stomach.
Media pundits, who revel in instant analysis, floated multiple theories: Could this have been part of the BJP’s plan to bypass Justice N V Ramana for the top post of the Supreme Court when it falls vacant next year or was it a countermove by Jagan because a bench headed by Justice Ramana directed high courts to expedite hearing in cases against elected representatives, the AP CM being one of them? Let’s assume this is true and Jagan has played into the hands of the BJP. As it seeks to make inroads into AP’s political landscape, the BJP is bound to play games.
It will humour both the Telugu Desam and Jagan while also rapping them on the knuckles depending on the situation till it is compelled to choose a side. Such political moves are not new, though the BJP does it more crudely than previous rulers. But to look at the current issue from the angle of Jagan, Justice Ramana or Modi-Shah is to examine it at a superficial level. All of them, like any of us, are temporary but the institutions they represent are permanent.
The judiciary should have seen this coming when the full court maintained stoic silence after the 12 January 2018 press conference by four judges where they publicly declared that not all was well with the Supreme Court and that cases of far-reaching importance are being assigned selectively. One of the charges levelled by Jagan is exactly the same. The judiciary should have seen this coming when every institution suppressed the 60-page explosive note written by former Arunachal Pradesh chief minister Kalikho Pul a day before he died by suicide in August 2016. The contents of the note are shocking and will put any right-thinking person to shame.
The apex court should have been concerned when varying orders are given in similar cases. The full court should have been shocked when one of the judges clearly violated the oath by publicly praising the prime minister and yet, believes he has the right to haul up others for contempt. We need not remind judges that their independence cannot exist without accountability. The SC is ready for an urgent hearing of a petition by a journalist and the AP HC is more than ready for a plea by a former AG at night to impose a gag order.
But if one were to question why a petition filed by a government or others is not even numbered for two weeks, it amounts to interference in the functioning of the judiciary. Questions should have been raised when Justice Muralidhar was transferred out of the Delhi High Court because his orders were found to be inconvenient to the powers that be. Likewise, when two judges of the AP High Court, Justices Sanjay Kumar and S V Bhatt, both of whom have the cleanest track record, were shunted out for reasons we are not aware of. We have only to realise from how high we have fallen to understand how deep the malaise is. Justice D M Chandrashekar, one of the most illustrious judges of this country, once told the then CJI, A N Ray, that he was not entitled to sit in the High Court to watch the functioning of the judges.
An article marking his centenary recalled that the argument put forth by Ray was that it would help him make appointments to the SC. Justice Chandrashekar, senior-most puisne judge of Karnataka then, told Ray that in such an event, HC judges were not interested in becoming judges of the apex court. That was independence in its truest sense, not the one that judges try to remind us of now. After the Second Judges case in the 90s when the Collegium system came into being, the only difference has been that instead of ministers, judges began to be patronised if one wanted to get appointed to a high court or elevated to the Supreme Court.
There were serious problems in appointments to the judiciary in the pre-Second Judges case period (when it was in the control of the executive) as also after that, when the power shifted to the judiciary. An opportunity to reform the judiciary came in the form of the National Judicial Appointments Commission but the Supreme Court blocked it, with Justice Chelameswar writing the lone dissenting judgment. The system is rotten and a reform is more than due. It is not the judiciary alone. Every institution is crumbling because as a nation, we have chosen to maintain collective silence even in the face of patent, aggressive stifling of basic democratic rights, including confinement of people in prison without even a trial.
Even ordinary protests are now an anathema to rulers everywhere. But there is no outrage when a retired IPS officer tweets he is unhappy with Lord Yamraj for having allowed someone to live long. The reference was to the saint-like Swami Agnivesh, who passed away recently.
Spreading hate is the new normal. We are not worried when TV channels embark on a media trial of a young woman holding her almost guilty of killing a film star until the forensic report by the country’s premier medical institute confirmed it was a case of suicide. The 24-hour rabble-rousing then stops suddenly as if the power switch is turned off, with none questioned on what basis the shaming was done. Toppling of governments is done as easily as shuffling of cards, in the past and now.
The federal structure is under strain for various reasons. We find demolition of a part of the building of a film star a denial of a fundamental right (which is fine if she wasn’t given a notice) but are perfectly okay with the overnight removal of thousands of hutments in the national capital because they are an obstruction to development. We need migrants to build our metropolises but don’t care to provide them shelter. If such fundamental issues are not addressed, we surely run the risk of becoming a Failed State. Any other argument is shallow. Period.
G S Vasu
Editor, The New Indian Express
(vasu@newindianexpress.com)