Illustration by PealiDezine.
Illustration by PealiDezine.
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The judiciary is under threat from within – from stretching jurisdictions, headline-hunting and its inability to put its own house in order.

Basu Bhattacharya’s 1971 film Anubhav, the first in his trilogy on marital discord, features Sanjeev Kumar as a workaholic editor and Tanuja as his lonely wife. After all is dusted and done through an intense two-and-a-half hours, with Dinesh Thakur completing the triangle of tension, comes a dramatic final exchange between the couple.

“You write editorials each day for everybody else’s problems. Will you write one for ours too?” Tanuja (ok, millennial, Kajol’s mom) asks Sanjeev Kumar.

Picture your eminent Supreme Court judges in a similar situation. This week saw them deliver a judgment of rare clarity, and bombast-free passion. Throwing out the Public Interest Litigations (PILs) demanding an independent inquiry into judge B.H. Loya’s death in Nagpur, Justice D.Y. Chandrachud, writing for the three-judge bench headed by Chief Justice Dipak Misra, lambasted the petitioners and their lawyers for making scurrilous allegations without a “tittle of proof”, scandalising and thereby undermining the entire judiciary.

Rejection of the petitions apart, the rage in the judgment came from wanting to save the judiciary from lawyers, activists, the media and other busybodies. It looks like everybody is beating on the judges and they are fighting back.

A picture of Shekhar Gupta, editor-in-chief of ThePrintSo can we also ask the judges a simple question echoing Anubhav’s Tanuja: you write judgments all the time to protect the judiciary from others. Will you write one on how to save the judiciary from the judges too?

I am being overly cautious in developing this argument, and I better be. Because, the judges said they were being large-hearted in sparing the very eminent Loya case lawyers and petitioners from criminal contempt. A mere editor may not get the same generosity going ahead. Facts, however, have to be stated, and debated.

This isn’t the moment to discuss the merits of the judgment itself. It is very well argued and stated with brevity not seen in most Supreme Court orders lately. In these polarised times, what you make of it also depends where you stand politically or ideologically. Journalist Barkha Dutt described the commentariat’s predicament brutally as being two rival poles, chamchas (sycophants) and morchas (activist fronts). It’s perilous to talk nuance as you will then be abused by both sides. It is enormously more troublesome, however, when the higher judiciary looks and sounds similarly polarised.

That’s the real threat to it, from within. That’s what the judges should be angry about. That’s why the judiciary needs saving from the judges. There are no individual villains here. Just that while it tries to shoo away what it sees as outside viruses, the institution itself is caught in an awful auto-immune disease. You know, when a body starts to eat itself.

You can’t but agree with the larger points made in the judgment. First, that PILs are being misused. People have made careers out of bringing political, individual and ideological fights to courts, wasting their time and contributing to delays. Second, that judges don’t lie — at least not four of them together. And third, that it is preposterous to say that one man controls the entire judiciary. It is an impossibility.

Now, some fact-checking. On the day this judgment was delivered, the morning’s papers reported the Bombay High Court imposing water-use restrictions for IPL matches in Maharashtra in response to an earlier PIL. Forget the worth of the water thus saved for the farmer by starving a playground. Is it really worth the honourable court’s time to pronounce on a PIL on a cricket league when it has many important cases? You must never impute motives to the judges’ actions even as you question their wisdom. The Loya judgment said PILs had become a “facade” for people seeking publicity. Would the judges look in the mirror and ask themselves if they haven’t been calling for the same temptation?

My colleague Maneesh Chhibber, who is a most avid and insightful watcher of the higher judiciary, has helped me compile a short list of the more interesting examples besides, indeed, the BCCI, which now has left the Supreme Court governing Indian cricket for more than a year with no end in sight. Recently the CJI, who now heads the cricket bench (heard any such in a constitutional democracy?) also admitted another PIL on the side, seeking to legalise betting and gambling in sports. Misra, before he became CJI, had ordered (on 30 Nov. 2016) that playing of the national anthem be made mandatory in cinema halls, only to rescind it much later. Each of these PILs made headlines. Nobody remembers the names of the petitioners. So why blame them alone for headline-hunting? Even the morning after the Loya judgment, 12 of the 43 cases on the CJI’s list were PILs.

A few more: the PIL to bring the Koh-i-Noor back from Britain, another to ban Santa-Banta jokes, to criminalise porn-watching (eating into court’s time since 2013), to make yoga compulsory in schools, and so on. Some of these were eventually dismissed. Why these were admitted, with such a huge pendency and so many citizens waiting on issues of individual liberty, is a question we ask.

The fact is, since the eminently noble idea of PIL as the citizen’s last resort originated in the mid-1980s, too many judges have extended its reach and range and in the process stretched their jurisdiction and powers. This often walks them into the executive domain of messy day-to-day governance with no exit.

In the capital, the court set up an empowered committee to improve air quality 20 years ago. It continues to date, having transcended the tenure of 18 CJIs; the air has only become more noxious. The same for the court’s committee on illegal constructions and encroachment in the capital. In both cases, the court can’t admit failure and dismount the tiger. But people blame it instead of the politicians and it suits them fine. PILs are being overdone, but not just by publicity-seeking activists. Judges are part of the problem.

The second principled point was, judges don’t lie. At least not four senior district judges together. Does the principle not apply to the four seniormost judges of the Supreme Court who have been raising some substantive points of judicial governance for months now? Is their word to be discounted as motivated and their concerns dismissed as misplaced while we take the four Maharashtra judges at their word? I am not stupid enough to insinuate the district judges are lying. I will have to be insane to believe the top SC judges are. Their questions need a response, debate and introspection.

This relentless stretching of jurisdiction, the judiciary’s tendency of headline-hunting through the same PILs it decries as pestilence, and its inability to get its own house in order has weakened the institution more than any outsiders. When the judges seem so divided, you would expect litigants and lawyers to go forum-shopping. More importantly, you will have the executive play games with you, holding back your own appointments while you try cleaning the air they breathe and run the game of cricket.

Some tension among institutions is healthy. But if one becomes too weak, another will muscle its way into its space. That’s exactly what is happening now. The top judges are squabbling, and the politicians are laughing.

Which brings us to the third key point in the judgment – that it is preposterous to say that one individual could control the entire judiciary. In principle, you can’t dispute it. In reality, we have seen that come to pass. Except that it wasn’t a man, but a woman, Indira Gandhi. The courage and spine of just one great judge, H.R. Khanna, then saved us from becoming like Erdogan’s Turkey today. India of 2018 needs not just one, but several such because the pre-eminent threat now isn’t just from outside, but from within.

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28 Comments Share Your Views

28 COMMENTS

  1. The Judiciary Obituary was well written by none other than the 4 SC Judges some months ago. This was not because of the CJI’sCJI’s leaning towards the present rulers, but of putting pressure on the ruling elites. While the Institution of Judiciary itself is impartial, how can they expect the powers that be . It’s so ridiculous.

  2. Learned lawyers and committed party officios have commented. The present drama between the judiciary themselves and with a Govt desperate to have its way in the legislature with its majority and the use of the ordinance route poses a great danger to our country. The solution may seem difficult but it will need a visionary statesman and a firm judiciary chief to take the steps to stop the dangers of the present Govt or rather politicians of any party who should be rudely woken up to what the future holds. We have many platidutes praising those who framed our Constitution
    for political purposes failing to understand the wisdom of those who chartered it. The speech made by the late and great Dr Ambedkar while moving the resolution on the Constitution must be heard or read to keep the spirit of the Constitution alive today

  3. Mr. Gupta, You have been a great journalists. Can you please explain your presence when the Hon’ble Supreme Court judges were holding press conference.
    Can you please write an editorials about the quality of journalists and their characters. Don’t they write for money.

  4. Justice dispensation system is too important to be left to the judiciary. Justice dispensation system is passing through its worst phase. The whole system is vitiated by corruption, favoritism and nepotism. And these features are in public domain now. Judiciary is being looked down upon, instead of being looked up to. Standards of jurisprudence have nose dived. Sanitization of the whole system is desperately needed.

  5. I m impressed in this writing. But would like to discuss the solution. Notwithstanding, it’s a brave & brilliant attempt to Burress obebest possible view on this raging yet important problem.

    • shekhar was promised padmshriee y congress for barking agaisnt BJP but 2014 proved its delay n he desperately thinks 2019 may be his last chance before colluding to the lutyens’ gutter

  6. Presently the appointments in SC and HC’s are made based on recommendations of State Govt and HC for high court judgeship and SC collegium for higher judiciary. In this system, nepotism has developed. IAS and IPS are selected by UPSC on the basis of competitive exam. Indian higher judiciary is only in the world which selects judges with recommendations. There is no representation of 85percent of Indian population. Only 3percentage Brahmins captured the high court and Supreme Court. How the Brahmins are doing justice in India, everybody knows. All citizens are equal before the law. Why the 85percent people are ignored and denied to the judgeship of High court and Supreme Court. Are we doing justice? Only 800families in India produce the judges of higher judiciary. This is a matter to think and discuss the selection of judges in higher judiciary. The monopoly should stop.

  7. It is high time that judicial system is treated as a ‘service’ and brought under consumer laws including under the RTI, to make judges and the courts accountable to the people at large.

  8. Too many PILs on flimsy grounds . The first question that needs to be addressed is whose interest is being addressed. The article begins on a factually correct note but deviates in the end of the article using false Flawed logic deviating from facts. CJI is the master of the roster as per law of the land and the same has been reiterated by a multi member bench. If the judge is found to be incorrect, corrective measures are already available. Many a supreme court judgement has been reviewed and modified. The need of the hour is adherence to facts and sadly, both lawyers and the media are found wanting. The Caravan report and the pother around it is a case in point.

  9. NJAC should come and measure appointment should be done on through all india judicial service. Because there are no transparency in appointment of higher judicial service. So govt. Should think

  10. When three judges of supreme court said , BJP said its internal matter .

    When congress said then its threat of judiciary .

    its threat by some person not a group of person.

    Constitution Rights and Judicial Proceeding both co-related and strongly recomended by Indian Constitution.

    BJP SAID THEN ITS GOOD AND OTHERS SAID THEN ITS THREAT.

  11. What I have written is based on my experience as a student of law. It could not be better than what it was.

  12. Becoming a critic is easy than to have capability to hold the position from where you pronunce judgements as a part of majority opinion.Have you ever gone through the judgments given by constitutional benches of Honble Supreme Court?Logic and and arguments tendered by the learned judges look to be equally impressive but ultimately the majority prvails.It does not mean that minority Judges we’re of inferior legal accumen.In short I , very humbly emphasize that criticism of judgments from academic view point is welcome but it should not be used as an opportunity to paint the judges and judiciary in darker shades.

  13. Sheer brilliance in commentating, Mr. Gupta, you old (watch) dog!
    Always been wondering –right since my primary school social sciences lessons on our constitution, if it is really possible to ultimately totally untangle the strands of democratic power: legislature, the executive and the judiciary. I feel that is the ultimate root of all these complications. And it will always remain so, irreplaceably. The way ahead will always be polemic, hopelessly.

  14. Though Judiciary needs reform but this is not the way the opposition or media is acting. Supreme Court rightly rejected the Judge Liya case it could well have ordered cbi enquiry and could have earned apalous , by not doing so the court has shown courage of acting righteously even under such pressure.

  15. Four out of five is a good score to have. The collegium is delivering some fine judges, and is working to improve its performance.

  16. Transparency and fairness in judiciary is very important. Favoritism and nepotism have no place in justice delivery system. Sanitization of the whole Justice dispensation system including appointments is the need of the times. Constitution of Indian Judicial service on the lines of Indian Civil service will do real justice.

  17. Things are not quite what they seem. The CJI has not reacted to the delay in finalization of Memorandum of Procedure or what has been the constraint in deciding the fate of the two nominees to the Supreme Court. Mr. Jetley may say that the Opposition is threatening the Judiciary but is it not the adverse decision given by one of nominated SC judges the cause of sitting on Collegiums recommendation. And it serves as a signal to the other High Court Judges that better be careful if you have any desire to get promoted. And what about the SC itself which had directed the Govt to try the Shahabudin Case under one Judge, from start to finish. But the Judge got changed when he refused to allow Mr. Amit Shah1s request. What action did the honourable SC took?

  18. It’s not always transparent why some cases are admitted and others not, or how some cases get an earlier hearing than others and the administrative side of judiciary needs overhauling. Having said that it seems that you are actually incriminating the judiciary for being inefficient and biased perhaps while overtly stating that you don’t want to.

  19. Anubhav analogy totally flawed. Here it is a case of saving the family from predators who instigate the wife to abandon the famïly and the husband saving the family with a daring attack on the predators and their paid agents.

  20. Perfectly correct views. Few years or decades late – probably the fissure created by the press conference by the four SC judges gave that vital opening to finally pen it down now (better late than never!).

    I also wonder that judiciary should also rise above what may be perceived as ‘conflict of interest’ in certain cases. When it was to decide the National Judicial Accountability Bill, could it have co-opted some eminent neutral people from public life including some retired judges and former lawyers in the debate to make the outcome appear more impartial? I believe it could have done so and given an important signal of SC’s intention to remain fair – of course it could have recuses itself from the case itself.

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