When the adversary is visible, it is easier to face its challenge in a battle. But what if the enemy fights from the shadows? The challenge is greater. And what if the target of the attack is the highest seat in the final court of appeal under the Constitution of India? By targeting an individual, forces of the dark are attempting to wreck the Supreme Court — an institution that serves as the savior and protector of Indian democracy.
The challenge is even greater in this battle because a trap has been laid carefully to make a direct pushback fatally counterproductive. There are booby traps of morality and landmines of victimhood narrative. The threat paradigm is inverted in a way that destroyers have fashioned themselves as “protectors” of the institution. Only thing clear in this shadowy battle is that the ‘dignity’ of India’s highest judicial institution is under threat.
And when the Supreme Court’s dignity is in peril, it is certain to have a deleterious effect on the entire institution because the dignity — in Justice NV Ramana’s words — “first and foremost, flows from the capacity of judges to render impartial justice". That, then, is the gist. The shadowy forces that have been described as a “powerful lobby of fixers, disgruntled apex court employees and corporate figures” are trying to stain the CJI’s office so that it fails to stay committed to justice, law and fairness in delivering verdicts, leading to inevitable crumbling of the entire edifice.
Yet every crisis also brings an opportunity. The threat at hand is dangerous, nasty and obnoxious. Still, it presents an unprecedented opportunity for the judiciary to get rid of fixers and power brokers that frequent its hallowed corridors. The danger is clear and precise, and that’s why now is the time for the judiciary to shake free of ennui.
We saw judges express their helplessness periodically yet fail to take concrete action. In May last year, a bench of Justices Arun Mishra and UU Lalit, while hearing a petition, accused a section of lawyers of “killing the institution”. Few months later in February, a bench headed by Justice Arun Mishra, while hearing a contempt petition against advocate Prashant Bhushan, once again expressed anguish at the way attacks by lawyers are undermining judges and the judiciary.
“Freedom carries responsibility. What if bar is out to kill the judiciary? That’s what it looks like. Judiciary has to be protected from outside, not from insiders. Some lawyers seem to be carrying a dagger to kill the judiciary,” the bench, also comprising Justice Navin Sinha, had observed.
In mitigating the crisis, however, obvious traps must be avoided. The allegation of sexual harassment filed against CJI Ranjan Gogoi must be thoroughly inquired into and taken to its logical and legal conclusion. The Supreme Court has come under attack on its handling of the issue. However, the fact is that in appointing a three-member in-house committee led by the senior-most puisne judge Justice SA Bobde, armed with the approval of the ‘Full Court’ to inquire into the charges, the apex court has stayed true to procedure.
The extent of the threat, however, becomes clear when we see that the Supreme Court’s liberal nature is used against it to sharpen the attack. The original three-judge in-house committee led by Justice SA Bobde had as its members Justice Ramana and Justice Indira Banerjee to examine allegations of sexual harassment leveled by a dismissed employee of the court against CJI Gogoi. “Reservations” were apparently expressed by the complainant over the inclusion of Justice Ramana in the committee on grounds that he may have “prejudged the matter”. This was based on a selective reading of his earlier speech and also because apparently Justice Ramana is a close friend of CJI Gogoi and like a “family member to him”.
Justice Ramana, while recusing himself from the panel (where he was replaced by Justice Indu Malhotra), categorically rejected the aspersions cast on him as “baseless, unfounded and misconceived". His three-page letter to colleagues explaining the reasons behind his recusal paint a sorry picture of the way pressure is being brought upon the judiciary to bend its will and elicit verdicts of choice through benches of choice.
Justice Ramana’s letter is explicit enough in dealing with the nature of threat (see here) and he strikes the right note when he writes that “let my recusal be a clear message to the nation that there should be no fears about probity in our institution, and that we will not refrain from going to any extent to protect the trust reposed in us. That is, after all, our final source of moral strength.”
However, questions must be raised against why the recusal became necessary. In what way was Justice Ramana different from any of other 24 judges? Trust deficit in one judge of the Supreme Court is tantamount to trust deficit in all other judges and eventual trust deficit in the institution. If Justice Ramana must give way to another judge apparently because he was “close” (he has refuted that charge), the the judge who replaces him may fall prey to the same allegation. We may reach a situation where only one kind of verdict would be ‘acceptable’ and all other judgments will be coloured as “motivated”. This sets a dangerous precedent.
The Supreme Court Special Bench’s move to appoint former judge Justice AK Patnaik to probe whether a conspiracy is afoot against the CJI is a good step. Justice Patnaik has already said that he won’t begin his task unless the in-house inquiry into the sexual harassment allegations are complete. That is a welcome step and minimises the chances for disruptors to subvert the process.
The Justice Patnaik probe flows from the extraordinary allegations brought by lawyer Utsav Singh Bains, who has claimed in his affidavit that he was offered a bribe of Rs 1.5 crore by a man claiming to be the complainant’s relative to file a false case against the CJI. If true, this indicates the depth of the rot and the fatality of the threat.
The role played by the CJI must be commended. He may have initially erred in leading the bench and putting up his defence before the complainant got a formal hearing. He got a lot of flak for that but in the larger scheme of preserving the integrity of the institution he did well to shine light of public scrutiny on the murky affairs of the apex court. It is precisely because such issues have been sought to be dealt with away from public glare, things have got to this pass. The CJI needs to be commended for taking this brave step of putting his personal image on the line for preserving the integrity of the most important legal institution of the country. He has shown that he is a man who cannot be easily bended and won’t be made to crumble under pressure. At a time when the judicial institution is under threat, his move to not take the easy way out and stand his ground at the risk of facing public condemnation must count for something.
Political forces might be acting as the ventriloquist, striking at the heart of the judiciary from the clouds. The CJI himself has expressed such an apprehension, observing that “bigger forces” might be behind the affidavit just before the CJI-led Bench is expected to pass verdicts on some “important poll cases”. It is easy to float the narrative that the CJI wants to keep himself above scrutiny. The ‘institutional disruptors’ (to borrow from Arun Jaitley), are trying hard to reinforce the narrative.
Bains’s allegations, however, have brought an entirely new angle to the crisis and have lent credence to concerns that a larger conspiracy may be afoot. The Congress that is busy crying wolf over the state of India’s institutions has been historically at the forefront of carrying out assaults on all public institutions including the judiciary. Indira Gandhi’s decision to proclaim Emergency was triggered by an unfavourable court verdict (for her) and she went on to unleash an extraordinary assault on the independence of Supreme Court.
It is equal parts amusing and menacing to see her grandson, the current Congress president, play truant with SC’s words and twist it to suit his political agenda. The Congress’s proximity to the amorphous “lobby” that seeks to erode the credibility of the apex court is also well-documented. For all these reasons and more, the current crisis could be an epochal episode. Let’s hope the Supreme Court emerges shinier and more pristine from this crisis.
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Updated Date: Apr 28, 2019 20:57:26 IST