Judicial independence as autocracy

Unless the legal fraternity, the fourth estate and even the fifth estate—the society at large—regain their critical faculties to scan the judicial happenings, hallucinations of conspiracy may recur.

Published: 22nd February 2021 07:32 AM  |   Last Updated: 22nd February 2021 07:32 AM   |  A+A-

Supreme Court

But democracy retains its hopes even during the hard times. (File Photo| Shekhar Yadav, EPS)

Last week, on February 18, a three-judge Bench of the Supreme Court, by way of a short order, closed a case that the court initiated on its own, saying that “no useful public purpose will be served by continuing the proceedings”. This matter, which began in April 2019, had a long, strange and curious title: “In Re: matter of great public importance touching upon the independence of judiciary”.

The case was unprecedented. It emerged amidst a lot of controversies and ended without much discourse on it. When the erstwhile Chief Justice of India Ranjan Gogoi was accused of sexual harassment, it was not merely an instance of an alleged individual derailment. The episode also exposed an almost complete deficit of a mechanism in India to ensure proper judicial conduct on and off the Bench. The situation revealed the infirmities of the so-called in-house procedure evolved by the court to deal with the complaints of judicial misbehaviour.

The woman’s complaint was dealt with by breaching the Supreme Court’s own guidelines laid down in the Vishaka verdict (1997) and the provisions of the 2013 enactment regarding sexual abuse on women at the workplace. Instead of addressing such fundamental issues, a few judges and lawyers cried foul, and openly said that there was an ongoing conspiracy against the judiciary. Gogoi said that the agenda was to “deactivate the office of the Chief Justice of India”. The focus shifted from the systemic issues of accountability to the subjective apprehensions of conspiracy.

The court once again resorted to its committee jurisprudence. An Arun Mishra-led Bench appointed A K Patnaik, a retired judge, to examine the conspiracy theory. He filed a report. It was after perusing this report that the court closed the case by directing that the report be “placed back in a sealed cover”, even while observing that the chance for conspiracy cannot be ruled out. Right in 2019, many were sceptical about the manner in which the court tried to address the issue. The CJI’s very presence in the court hall on a Saturday vitiated the process. Yet, what appeared stranger was the court’s subsequent enthusiasm for institutional support for the individual’s stand.

That was unjustifiable and unwarranted. The court mistook the issue of alleged individual aberrations as one of conspiracy. The very move for a probe into the matter was based on a wrong decision taken at the wrong time over a wrong cause. This criticism was very much there at that time. The People’s Union for Democratic Rights (PUDR), among other things, demanded that the conspiracy petitions be put on hold till a fair enquiry was conducted into the allegations against the then CJI. But the critics were ignored and the powerful decided the course of events that followed.

The closure of the case of “great public importance” poses more questions than it answers. Even if one does not rule out the possibility of conspiracy, it is an issue requiring a congenital and structural solution. Once the proper benchmark and assessment of the moral and intellectual merit for the selection of judges are put in place, no longer can there be space for secrets. Once judicial accountability is ensured by legal framework and critical cultural ambience, the system could be cleaned up to a good extent. But the court wrongly perceived judicial independence as judicial autocracy.

It was this conceptual flaw that led to the appointment of the one-man commission. In last week’s order, the court rightly acknowledged the limits of such a method. Systemic changes are  not easy. But cosmetic measures or peripheral devices cannot substitute them. A Bhakti cult in the legal system has seriously impaired our judicial democracy. Dr Ambedkar warned against idolatry in politics. The idol worship in the judiciary is equally dangerous.

Unless the legal fraternity, the fourth estate and even the fifth estate—the society at large—regain their critical faculties to scan the judicial happenings, hallucinations of conspiracy may recur. It is true that the present picture is grim. But democracy retains its hopes even during the hard times. The Constitutional provisions in Article 124(4) and Article 217(1)(b) practically ensure security of tenure for the judges of Constitutional courts by prescribing the almost unworkable impeachment as the sole method for their removal. Provisions of the Judges (Inquiry) Act (1968) and the Contempt of Court Act (1971) are also meant to protect the office of the judges.

Thus, they enjoy special immunity that is constitutionally and institutionally guaranteed. No FIR can be filed against a judge without the concurrence of the Chief Justice of the concerned court. Registration of a case against the CJI is almost impossible, going by the principle laid down in the Veeraswami judgment (1991). In Veeraswami, the court vaguely said that “if the CJI himself is the person against whom allegations of criminal misconduct are received, the government shall consult any other judge or judges of the Supreme Court”, before an FIR is filed and sanction is granted for prosecution. Justice Gogoi is a beneficiary of this unrealistic condition that no ordinary mortal can ever claim in India.

Judges have extraordinary powers and privileges. Therefore, the conspiracy probe was a luxurious job that diverted the focus from actual issues. As American lawyer Alan Dershowitz said, judges are the most protected group in our  society.  Every judge acts with impunity and therein lies the root of the problem.  

Kaleeswaram Raj (kaleeswaramraj@gmail.com, Tweets @KaleeswaramR)
Lawyer, Supreme Court of India

India Matters


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