‘Democracy in Danger’

The latest episode of a press conference by four senior Supreme Court judges, accusing the Chief Justice of India of passing arbitrary orders in respect of assignments of cases and thus violating the judicial contentions and norms, is unique in the annals of the Indian judicial system. The salvoes fired by the four judges, namely Kurinan Joseph, J Chelameswar, Ranjan Gogoi and Madan B Lokur against the CJI cannot be brushed aside easily as personal affront because there are past instances of such violations. What, however, is important is the wider political implications of this revolt in the form of a press conference. Possibly the recent-most example of such violation is the assignment of the PIL filed for an independent probe into the death of special CBI judge B H Loya to a bench headed by Justice Arun Misra who is much junior to the above four judges. An English daily reports "On Friday (12-01-18) morning, the four judges are said to have met the CJI and contended that the case should be listed before senior judges but were apparently overruled". This report was confirmed by Justice Gogoi at the press conference. It should be emphatically mentioned that at the time of his death, B H Loya was hearing the Shorabuddin Sheikh fake encounter case in which Amit Shah was an accused. Violations have reprotedly taken place earlier also.

At present, several cases including the Ayodhya title dispute and Aadhaar's constitutionality are being heard by the CJI along with relatively junior judges. The previous CJI, J S Khehar also assigned the Birla-Sahara case to a junior bench outranked by 10 more senior benches. The same thing happened regarding the allegation against a retired Orissa High Court judge and the present CJI here exercised his power to exclude all these senior judges and constitued a bench with relatively junior ones headed by himself. One statement issued by the disgruntled BJP leader and former cabinet minister Yashwant Sinha is revealing enough. He has asked his party leaders and senior cabinet members to get rid of their fears and speak up. If there is a sincerity in his suggestion, it simply means that the Modi cabinet is caught on the wrong foot, because the controversies that have come up have led many to surmise that saffronisation of the judiciary has been proceeding apace at the behest of the Modi-Shah combine, independence of the judiciary is fast vanishing, with the CJI himself acting as the ‘conscious’ tool of the undermining of this independence.

It may be recalled that in 1975, just before the promulgation of the infamous Emergency, Indira Gandhi, in a brazenly despotic manner, talked of 'committed judiciary' and appointed Ajit Nath Ray as the CJI by superseding at least three judges, who resigned in protest. This protest was followed by a chain reaction of condemnation. Then, in a sensational judgment, Judge Jagmohanlal Sinha of Allahabad High Court, set aside Indira Gandhi's election to the Lok Sabha as illegal. Indira Gandhi then declared the Emergency, imprisoned all important leaders of the opposition, banned all Naxalite outfits as well as the RSS and imposed press censorship. What Indira Gandhi did is now replicated by a gradual and subtle process of saffronisation of the judiciary. In fact, this very subtlety shows that it is more dangerous than the earlier despotism of Indira Gandhi. As expected, the principal ruling party has maintained an intriguing silence, Yaswant Sinha's insinuations notwithstanding. Finally, it must be admitted that the process of saffronisation, and hence fascistisation, of the judiciary is getting exposed and facing challenges.

The hard fact is that people are losing faith in judiciary, albeit in a situation where all political parties, left or right, sing to the tune of the rich, and social activists increasingly rely on public interest litigation for grievance redressal. But if the judiciary is in such a bad shape and sacrifies its independence, all the tall talk of democracy will mock at the judiciary itself.

At the time of writing the unprecedented crisis gripping the Supreme Court continues to rage, albeit Attorney General K K Venugopal claimed on January 16 that all their issues had been settled. Meanwhile, the NGO Campaign for Judicial Accountability and Reforms filed a complaint against CJI Dipak Mishra to five senior-most judges under an in-house procedure calling for an inquiry. It means more complications are ahead.


Vol. 50, No.30, Jan 28 - Feb 03, 2017