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21 January, 2018 11:22:40 AM

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The Indian judiciary conundrum

The Indian judiciary is among the highly rated institutions in India, particularly the apex court
KUMKUM CHADHA
The Indian judiciary conundrum

There are several adjectives being used for recent happenings in the judicial system in India: ranging from unprecedented to historic to revolt and even mutiny.  None of these are exaggerated because the events that have unfolded in the course of the week are the first in the history of Independent India. The Indian judiciary is among the highly rated institutions in India, particularly the apex court.

When all else fails, people turn to Courts and if past evidence is anything to go by, their faith in the judiciary remains unshaken.
Whatever may be the stories about political interference or financial deals or the possibility of judges being influenced, the people of India trust the courts as they do little else.
Therefore, when the judiciary stirred, the nation shook. In what was termed an “unprecedented move”, four senior-most judges of the Supreme Court spoke to the media, publicly questioning the leadership of Chief Justice of India.
India’s Chief Justice is Dipak Misra and the four judges who spoke out against him are J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph.
“It is the discharge of our debt to the nation that brought us here. We have discharged our debt to the nation by saying what is what,” Justice Gogoi had said.

 The trigger was the Chief Justice  was not following established precedents in allocation of cases among the judges which they said was “adversely” affecting the justice delivery system.

The judges submitted a letter, some seven pages odd, to the Chief Justice before addressing what was seen as an “explosive press conference”.

“This is an extraordinary event in the history of the institution. The administration of the Supreme Court is not in order and despite repeated attempts to convince the Chief Justice to take immediate remedial measures, nothing has been done,” the judges told the media.

Of the four judges while two are due to retire this year, Gogoi is in line to be the next Chief Justice. In fact, if there is any damage that may be caused to anyone’s prospects it would be to Gogoi because going public and venting anger may go against the decorum of the judiciary, particularly because they went to the press.

“There are many wise men saying many wise things in this country. We don’t want wise men saying 20 years from now that Justice Chelameswar, Gogoi, Lokur and Kurian Joseph sold their souls and didn’t do the right thing by our Constitution”, they said.

The crux of the matter is:  the administration of the Supreme Court is not in order and the judges were left with no choice but talk to the nation directly; they had met the CJI  but failed to convince him to take remedial measures; many things less than desirable have happened in the past few months;  for the survival of democracy, an impartial judge and independent judiciary is needed.

Even though the letter did not mention it, fingers were pointed to the controversial death of Justice B.H.Loya in 2014 under mysterious circumstances. There are several unanswered questions about Loya’s death and his family had, in the past, raised doubts about cardiac arrest being the cause of his untimely death.  

Loya was presiding over the CBI court in the Sohrabuddin Sheikh encounter case.

The prime accused in the case was Amit Shah—Gujarat’s minister of state for home at the time of Sohrabuddin’s killing, and currently the Bharatiya Janata Party’s chief.

The judges had reservations about the assignment of a particular petition seeking an independent probe into Loya’s  death to a particular Bench.

In fact, the judges did not mince words when asked whether their protests had anything to do with allocation of Loya’s case. To this justice Gogoi said “yes”.

There was also a reference to CJI’s allocation of cases in the Supreme Court after he moved the Medical Colleges bribery scam from Justice Chelameshwar’s court to his own some two months ago.

The medical scam, being probed by the Central Bureau of Investigation, involves allegations that former members of the higher judiciary took bribes to manipulate court orders in favour of medical colleges that had failed to get official registrations.

A bench headed by Justice J Chelameswar referred the case to a five-judge Constitution bench but his order was nullified by a new bench formed by Chief Justice  Misra. The bench reportedly looked into the propriety of Justice Chelameswar’s order setting up a Constitution Bench without consulting Chief Justice Misra, among other things.

In its order, the bench reiterated the sole authority of the Chief Justice as the master of the judges’ roster, which means he alone had the right to decide on the forum of a bench.

Justice Chelameswar’s order stating that the Constitution bench to deal with the cases should comprise of five senior-most judges was seen as a direction trespassing the authority of the Chief Justice. Adjourning the matter,  Justice Misra said a new bench would be formed to hear the petitions.

 There is also a grouse about several other important cases that had been assigned to preferred Benches over the past few months.

Things have taken an ugly turn and the impeachment of CJI is being informally discussed. When the matter was raised at the press meet, one of the judges told the press that the nation should decide. As against this, there are  suggestions from some quarters about the four judges to be impeached because of their “trade unionism”.

However, there is an overriding view that the judges’ grievances should have been addressed and solved by the CJI. The issue, many feel, needed sorting out internally and the press should have been the last resort.

As things have panned out, the image of the judiciary has taken a hit that would not be easy to repair.

However, one cannot ignore the political angle to the entire episode. Aspersions are being cast on the Congress-links of the judges and motives attributed to their going public.

That the episode shows the BJP government in poor light is a given particularly because the judges have hinted at government interference in the judiciary. With elections just a year away, tarnishing the image of the ruling dispensation would only benefit the Opposition parties including the Congress.

Opinion, however, is  divided over whether the judges should have spoken out or not. There are some who have called it a “black day”, while others feel that “some sunshine has been finally let into the dark chambers of the courts”.  

 Keeping things under wraps is not the answer to wrongs. They must be set right and the people in a democracy have a right to know what is going on within the four walls of institutions that are the pillars of democracy.

Yes, initial attempts to resolve matters internally is the first step but if that does not happen, then things must be out in the open and corrected if the internal mechanism fails, like it seems to have in this case. Hiding under the garb of “propriety and decorum” will only worsen the situation and let the rot go deeper and erode institutions irreparably. When institutions are in danger and under threat of being derailed, speaking out perhaps does what silence never can.

The writer is a senior Indian journalist, political commentator and columnist of The Independent. She can be reached at: (kumkum91@gmail.com)

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Editor : M. Shamsur Rahman
Published by the Editor on behalf of Independent Publications Limited at Media Printers, 446/H, Tejgaon I/A, Dhaka-1215.
Editorial, News & Commercial Offices : Beximco Media Complex, 149-150 Tejgaon I/A, Dhaka-1208, Bangladesh. GPO Box No. 934, Dhaka-1000.

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