Shekhar Gupta: Time to strike the gavel

Judges are squabbling, popular confidence in the institution is frayed and the executive is poised to bury the hatchet: In its back. Can an exhausted judiciary fight back?

Is there a metaphor for the perilous juncture to which events and actions have brought India’s judiciary? How severe is the crisis India’s top judges face?

Judges are arguing among themselves, popular confidence in the institution is frayed, and the executive is poised to bury the hatchet: In its back.

If that sounds a bit dramatic, let me explain.

Where does a poor citizen go, if not to the courts, when she is denied her rights by the government? What happens to her confidence when she sees the highest court needing protection by the same government? Just this week the government came out, with self-righteous indignation, in defence of the Chief Justice of India.

And if you think his role reversal isn’t dramatic enough, in the same week, the law minister wrote to the Chief Justice of India, clearing one of his collegium’s two long-delayed Supreme Court appointments and returning the other for reconsideration. The government’s objections that there are too many judges from Kerala, or seniority, do not wash. The government is merely reminding the judiciary that, with a clear majority, it is the final boss.

Effectively, politicians know that judges have lost much political capital and vacated some of their right moral space. They are moving in to encroach and occupy it.

It is by no means confined to the ruling party. It is this exhausted state of the judiciary that encouraged a party with less than 10 per cent MPs in the Lok Sabha to dare it with an impeachment motion, thoughtless and imprudent as it was. The motion achieved no political purpose, it only weakened the Supreme Court, and especially the CJI, further. The last thing he needed at this juncture was a spirited defence by the government he is supposed to call to account.

Much as the BJP and Congress detest each other, they are united in wanting to show the judiciary its place. Remember the one law even this broken Parliament passed with supersonic speed, almost unanimously, was to curtail the powers of the higher judiciary to appoint judges and to call them to account through the formation of the National Judicial Appointments Commission (NJAC).

The Supreme Court, equally, showed alacrity in striking it down as unconstitutional, and the political class was chafing about it. Now, even while fighting each other, both are pushing back a common adversary, the judiciary. Remember, the five-judge bench in a 4-1 ruling that set aside the NJAC, presciently reasoned that the judiciary could not risk being caught in “a web of indebtedness” to the executive. This is precisely what is coming to pass now, without the NJAC.

The CJI — under questioning by the remaining four members of the collegium, under attacks by activist lawyers over the Loya judgement and medical colleges case, and threatened with impeachment by the Congress and defended by the BJP government — is on the defensive. Can he be expected to fight back for his institution in this mess? Especially when he’s unwilling to engage with his discontented brother judges?

Illustration by Ajay Mohanty

Politicians have been probing the judiciary’s new weaknesses. Delay in appointments cleared by the collegium had become routine. Now, in one case, the government has changed the tenure the collegium granted a high court judge and the collegium lumped it. Emboldened, it has now sent back Justice K M Joseph’s appointment for reconsideration. If the collegium blinks again, or keeps squabbling within, the government will make its next, more audacious move. What it could be is a matter of speculation. But if the Supreme Court continues to be on its knees, somebody could be encouraged to think of what looks improbable today: The government defying the seniority principle, breaking the line of succession, and not clearing the next most senior judge, Justice Ranjan Gogoi, as the next CJI.

The government rightly believes that the judiciary has lost much public sympathy of late. Its penchant for headline-hunting through public interest litigation while other cases languish has not gone unnoticed. The quick rejection of the NJAC confirmed the notion that the judges only act firmly and quickly to protect their own interests. This impression will now be cemented if the CJI persists with the PIL demanding action against critics of the Loya judgment. Once again the judiciary, instead of being broad-shouldered, will be seen as fighting for itself. This, and the continuing public discord between judges, has done serious damage to the judiciary’s social contract with the people of India.

The time for the fightback for the judiciary, therefore, is now. It is time for judges and legal luminaries to close ranks and fight to protect the institution rather than among themselves.

The search for a metaphor for the judiciary’s current crisis takes me back to a chapter from the earliest history of our freedom movement. In 1906-07 the British brought their hated Colonisation Bill, which gave them sweeping powers over land-owners’ properties. Its most draconian clause empowered them to acquire the lands of any land-owning farmer (or Jatt, as he’d be called in Punjab) who died without leaving an heir. Lala Lajpat Rai and Bhagat Singh’s uncle Ajit Singh led a popular uprising against it. Its anthem was a song written by Lyallpur (now Faisalabad) editor Banke Dayal: Pagdi sambhal jatta, pagdi sambhal oye/tera lut na jaaye maal jatta (hang on to your turban brother peasant, you could be robbed of your wealth and self-respect). That movement came to be documented in history as “Pagdi Sambhal Jatta Movement”. Lala Lajpat Rai and Ajit Singh were exiled to Mandalay, but the lines endured to Bhagat Singh’s times. Several subsequent generations of Indians therefore identify the anthem with Bhagat Singh.

I write this with utmost care and a great deal of thought and circumspection. This is the Indian judiciary’s “Pagdi Sambhal Jatta” moment. The institution faces its biggest danger after Indira Gandhi’s quest for committed judiciary and supersessions of 1973 onwards. It has come more than two decades after the judiciary thought it had secured itself forever by sanctifying a cast-iron collegium. It has done much wrong in the intervening years to weaken it to this extent, from making poor appointments, avoiding rapid reform, failing to appreciate the rising impatience with delays among a more empowered and connected population, and its scepticism over what is seen as judges’ weakness for publicity. We have been criticising and cautioning the judges over all of these. 

But this is not the juncture to belabour the same points again. If the judiciary loses this fight, it will suffer irreparable damage and all of us citizens will be the losers. Whether the CJI likes it or not, he is now pitchforked in a situation where he has to dig his heels in and fight back for the Supreme Court and his collegium.

A more cynical view could be that he has to choose between fighting for himself or his institution and I would rather avoid even debating it. As for his brother judges, a reminder from the 1973-77 history would suffice. Nobody remembers the name of the judge who benefited from Indira Gandhi’s supersessions. But the superseded ones who resigned in protest belong in Indian judiciary’s hall of fame. Some of today’s judges may likely be headed for such a test yet again.

By Special Arrangement with ThePrint