Wednesday, March 29, 2023
HomeOpinionThe FactivistThe mess in India’s higher judiciary is, sadly, of its own making

The mess in India’s higher judiciary is, sadly, of its own making

The judiciary has become cocooned while being the supreme force for transparency elsewhere. The complainant against CJI Gogoi has laid bare this hypocrisy.

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Most of today’s judges on the Supreme Court bench were in their thirties on 7 May 1997 when, famously, the full court sat and issued a 16-point declaration called Restatement of Values of Judicial Life. That year was the 50th anniversary of our Independence. You can find the full text here.

Twenty years on, we should check if our most hallowed institution has lived up to it.

You might begin with the question: Why is it that the Supreme Court of India has been making headlines for controversies than for good news? The current Chief Justice of India, Ranjan Gogoi, as his two immediate predecessors, Justices Dipak Misra and J.S. Khehar, have faced crippling controversies. The two before them cadged convenient sarkari sinecures. One of these, regrettably, in a Raj Bhavan.

Khehar was “mentioned” in the diaries of dead Arunachal chief minister Kalikho Pul. Dipak Misra first faced an unprecedented joint press conference by his four senior-most colleagues, protesting what they saw as his high-handedness and lack of institutional democracy, and then an impeachment threat by the opposition. The ‘sexual harassment’ crisis facing Justice Gogoi now is the gravest.

Let’s presume that each of these was spotless and targeted by interested parties. But we simply cannot defend none of them facing any scrutiny. Mostly, it happened because there was no procedure, mechanism or institution for such an inquiry. And where there is one, the Internal Complaints Committee for Sexual Harassment under the Vishakha Guidelines laid down by the highest court, the matter has been referred to a specially constituted committee of SC judges first, which the complainant has rejected.

Here are the three key reasons our judiciary has dug itself into a deep hole. First, its insistence on ducking inconvenient questions by invoking stature and reputation. This means there’s never closure on any issue. Second, that while the court lectures us on transparency, it remains India’s most opaque institution. And third, there is no mechanism, even a council of respected elders, which could step in when a crisis of credibility or internal distrust became evident.

Parliament had tried to create the National Judicial Accountability Commission exactly for such situations, but the court struck it down 4-1 as unconstitutional. Three of the judges who served on that bench (including Chelameswar, the lone dissenter) figured in the four-judge press conference in Gogoi’s company.

Also read: On harassment charge, CJI Gogoi did what he accused CJI Misra of — betray natural justice

Since Gogoi was the most senior among the four and the only one still in the chair, he needs to reflect on how his institution ended up here. Why is his Supreme Court looking like a big, flailing body oozing blood from a dozen, mostly self-inflicted cuts? And piranhas of various kinds are lurking.

It’s a tragedy when Supreme Court judges complain that they are victims of conspiracies. How did this most powerful institution, which is supposed to protect us and give us justice, become so vulnerable that busybody conspirators can threaten it? If it is so weak, where will we citizens go for justice?

The CJI’s office is a most exalted one. It is also possible that, as he and his brother judges in that most avoidable Saturday morning outburst indicated, there indeed is a conspiracy to undermine him. The Chief Justice of India deserves the fullest protection against interested parties throwing muck at him. But exactly the same principle should also apply to the complainant and the underdog.

Justice Gogoi and colleagues erred gravely in holding that peremptory Saturday morning sitting and pre-judging her case. Subsequent repairwork is now lost in the thickening murkiness, with an activist lawyer popping up with conspiracy theories. What these precisely are, we don’t know, because he has submitted them in a sealed cover.

Also read: Indian courts need MBAs and not Chief Justice to deal with pendency

The sealed cover has now become a defining metaphor for the last of the three big mistakes the court has made: Making itself the most opaque institution while preaching transparency from the Republic’s highest pulpit. Here is an indicative list. In the Rafale case, the government’s evidence is in a sealed envelope, as indeed are all the reports of the officer in-charge of the NRC process in Assam. In former CBI chief Alok Verma’s case the CVC report remains in a sealed cover, as do NIA’s reports in the Hadiya ‘conversion’ case.

The SC order to political parties to submit details of their donors to the EC is the latest example of this quaint judicial doctrine of the sealed cover. You might understand need for secrecy in a rare case. But if even the compensation for the assorted retirees heading the court-appointed Committee of Administrators of Indian cricket remains in a sealed cover for three years, it’s fair to ask why the court should be hiding behind secrecy when its entire BCCI excursion was about transparency.

Opacity is comforting. You can so easily get used to it. The SC protects RTI for us, but claims immunity for itself. Only seven of 27 SC judges have disclosed their assets. There is no transparency or disclosure of the collegium proceedings, or even explanation when it changes its mind on an appointment. Shouldn’t you have the right to know exactly how many special and empowered committees the court has set up, mostly as a result of PILs, their members—especially retirees—and compensations? If the executive hid such information from you, you’d go to the courts. Where do you go against the Supreme Court?

Judges are wise people. It follows that top judges should be among the wisest of all. They must reflect on the consequences of their making the judiciary an insulated and cocooned institution while being the supreme force for transparency and disclosure elsewhere. It is this contradiction and hypocrisy that the complainant against the CJI has laid bare. That’s why the court is looking unsure.

Read that 16th and last point in that 1997 Restatement of Values of Judicial Life: ‘Every judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.’

The Supreme Court’s refuge in opacity does not live up to this principle. An institutional reset and retreat are called for here. Of course, while both the complainant and the CJI get justice.

Also read: What happens when corruption scandals hit the Supreme Court? Nothing


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  1. Let us not give political colors to this issue. The root cause is collegium system. India is the only country where judge appoints judge. Natural law says that you cannot be a judge in your own case. But here that is exactly happening in India. If people lost faith in the judiciary, then the judges will be squarely blamed for that.

  2. You can delete my comment and not publish comments that are not convenient to you and those expose your desperation and your divisive agenda. Your media and Shekhar stand as a bunch of courtiers and discredited lot

  3. Sir one cannot come to conclusions on a one case of allegations levelled on judge till now SC was the only one institution where people use to see for hope and justice. But things which roles out for last five years the influence of govt into judiciary for their political benefits. I think judges are very learned to abide Raj drama .

  4. In a democracy, no institution is supreme, they all must be accountable to the people in some way. There must be checks and balances on every institution so that nobody is supreme and all are accountable to the people. By design, some should be more directly accountable to the people (the executive) than the others (the judiciary). The goal of designing these checks and balances is the long term welfare, prosperity and strength of the society as a whole. Unfortunately, the Supreme Court has declared itself to be unaccountable to anyone, which is a perversion in a democracy. NJAC was a feeble attempt to restore some semblance of accountability to the judiciary, but the SC struck it down without even bothering to give a reasoned justification for its action. In mature democracies, the courts see themselves as being bound by the Constitution and their job is to interpret the law. Unfortunately, in India, judiciary sees itself as being above the constitution and has no hesitation in frequently taking over the job of the executive and the legislature. As for the daily proceedings in the SC, the language and the judicial temperament displayed by the judges (and the lawyers) reminds me of the fish market quarrels, very different from the display of judicial majesty that is expected from the highest court of the land. The SC must take the job of reforming the judiciary and legal procedures very seriously. Otherwise, it is just a matter of time before the despair of the people will compel the government of the day to force the needed change down the throat of the judiciary. As for the government, it should take the job of cleaning up the law schools to eradicate the communists from them so that they begin to produce lawyers with decency and knowledge instead of rabble-rousers.

    • It’s not just law schools, communist ideology has damaged other education institutions also. One distinct feature of products of educational institutions infected with communist ideology is lack of positive criticism and abundance of targeted accusations based on mere suspicions. They do more damage than construction.

  5. Root cause is the Collegium system. You scratch my back, I scratch yours, that’s how most judges get their post. Its a closed boys club, hiding behind the clock of judicial independence. Its a shame that in a democracy, Judges elect themselves. For God sake, we are no communist china!

  6. A trying time for the apex court. Our most trusted, sometimes the most powerful, public institution. The great respect in which it is held by most Indians does not give anyone a free pass. CJI K G Balakrishnan was never held to account. The stopper above the pressure cooker is rising more frequently, letting off gusts of steam. One point on which there would be a near national consensus is that the process of reform and cleansing should be internal; the Court itself should do what is required. That is a privilege not accorded to others in the higher reaches of public life. Be a judge in your own cause, to that extent, Lordships, but judge fairly and soon.

  7. One needs to be honest in addition to being wise. Crooks and Cheats are very intelligent people. Our judges needs to be honest intellectually. Financial honesty is not enough. And for being honest, transparency is a must.

  8. The most draconian law is ,Contempt of court. Judges don’t like criticism of any kind yet they are the highest contempters of Laws of the land.In Delhi High court ,there are numerous IPR cases where without going into the merits of the case, Stays are granting along with appointment of Court commissioners ,ordering help of police to raid uninformed, defendants branding the Duplicators in the eye of public & when finally stay is vacated owing to misrepresentation & convicted evidence ,the defendant is never compensated & nor planting is penalised,when there are clear guidelines
    Justice is denied to general public ,but high profile MNC’S & Advocates are playing with the law.
    It is high time to abolish & try not to Provoke contempt of court for mere criticism.

  9. When entire system is de-railed…What you can expect from judges…They are no different.
    More than judges advocates who are responsible for mess in courts. They are more than ready to take adjournment on any ground or work suspend on trivial reasons…

  10. I have no idea of corruption n fixing in Supreme court, but it is rampant in high court n lower court, Fixers roam about freely in corridors, and offer services for a price, most of them are advocates, copying section is most corrupt.
    You can get a stay, orders all manipulated, your case don’t come for hearing and many of later years are heard n decided, does that not happen for price?

  11. DNA has exposed Mr. Sekhar Gupta’s dual face . Awareness with ground facts based on only truth has reached to the people . No more of self certification.

  12. Justice has to strike a healthy balance between equity and law. Just as jurisprudence cannot and shouldn’t be imprisoned by legislation, one can’t be swinging to the other extreme of dispensing Solomon’s Justice. Herein lies the nub.

  13. Whenever any sexual abuse is reported against any citizen of India, it is enqiured by the Police and when the Police finds it authentiic, they file a case in the appropriate court and the court gives the verdict. The accused may appeal to a higher court. But here without any Police enquiry the case comes to the Supreme Court. Will this happen to such complaints against any individual to come to Supreme Court direct without even a preliminary enquiry.

  14. I wish Sekhar Gupta maintains this stand irrespective of the party in power at centre. I have always believed that judicial reforms can’t happen if judiciary keeps itself isolated. Undoing the National Judicial Accountability Commission by judiciary was a bad action.

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