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Judiciary cannot be held to ransom by few disgruntled members of bar and bench

Monday, April 16, 2018
By Virendra Kapoor

Refine MoP on appointments to end Govt-judiciary stand-off and fill judges’ posts

The continuing  power struggle within the highest court in the land is as debilitating for the independence of the judiciary as is its stand-off with the government on the appointment of judges. At least, there is a well-known precedence for the current tussle between the executive and the judiciary on who should  have the last word on the appointment of judges to the High Courts and the Supreme Court. But there is none for the judges singly and in groups publicly rebuking the Chief Justice of India.
Let us deal with the internal troubles of the Supreme Court first because without  putting its own house in order its ability to assert itself vis-a-vis the government in regard to  the  appointment of judges gets  emasculated. The sight of senior members of the judiciary writing letters to the Chief Justice of India, and these finding their way into the media often before the addressee has received them, does not burnish the public image of the judiciary. It is common for every dissident to cloak his ambitions in high-fluting concerns for the institution and for doing so for  shielding  oneself against being black-marked by history.  It allows the malcontents in the bar and the polity to plunge into the factional fight among judges and exploit it for their own partisan ends.

If the letter-writing by judges to the CJI is a relatively new phenomenon, four senior-most judges of the Supreme Court launching a barley-veiled attack on the CJI at a press conference touched a new low in judicial demeanor. Never before had  the judges of the highest court in the land raised a banner of revolt against the head of the nation’s judiciary in such a blatant manner. Indeed, the half-baked attempt by a section of  the politicians to  impeach the CJI was directly inspired by the said press conference.

In this regard, the conduct of the senior-most judge  J. Chelameswar was most unbecoming. Contrary to his public protestations that all he was concerned was about preserving  judicial independence and  dignity, the net effect of his words and actions was to inflict harm on the institution.  Sitting judges of the Supreme Court airing their grievances, real or unreal, makes an ugly spectacle. It chips away at the public image of the judiciary.

Judges do not enjoy the luxury of behaving  like bad politicians, channeling their frustrations at unmet ambitions through dissident activity. The repeated refusal of the  collegium  to concede the wish of a  senior member for the transfer of a judge to the High Court of his origin where he had practiced with his lawyer son ought not to have triggered recalcitrance.   Showing a number of  CJIs  in bad light by complaining daily through words and actions undermines the majesty of  the higher judiciary. Also, it reflects poorly on the dissident judge.

The point to be understood is that having laid much store by seniority, Chelameswar and Co. ought to be reconciled to the CJI they have got, regardless of whether he is good, bad or rotten. Of course, there is nothing in the  CJI’s record to show that he lacks anything that his traducers can claim to possess by way of superior character and/or  judicial acumen. After all, the CJI has become  the head   of the judiciary through the same route which  Chelameswar and his three brother judges, who took the unheard of step in the annals of judicial history to address a  press conference against the  CJI, traversed to make it to the highest court in the land. Besides, if seniority were to be discounted for promotion, by all accounts one of the  two relatively young judges, exceptionally scholarly and knowledgeable,  ought to be heading the judiciary.    

In fact, questioning the settled issue of the CJI being the master of the roster was yet another way to undermine his authority.   Those who cannot become the chief seek to draw satisfaction by trying to  whittle away at his powers. Grapes do taste sour for some of our judges, don’ they?   

As for the tussle with the Government over the appointment of judges, let us say we are not surprised. When the Supreme Court in its wisdom rejected the National Judicial Appointments Commission, which was approved unanimously by Parliament,  it reignited the tussle. Unmindful of the fact that for more than three decades the  executive had the final say in  appointments, a middle-ground ought to have been found to resolve the differences. The court-mooted memorandum of procedure (MoP) for   appointments remains a work in progress, with the judges  suspecting the motives of the government regarding the national security clause.  

The distrust between the executive and the judiciary is at the root of the stalled appointments.  Judges cannot aspire to have an absolute power in the matter. Nowhere in any functioning democracy do the courts enjoy such a power. Indira Gandhi abused her primacy to appoint judges, and precisely because of that abuse   had that power snatched away by the judiciary. The  judiciary cannot insist on becoming the sole arbiter in  appointments because of Indira Gandhi’s excesses. A balance between the executive and the judiciary needs to be found.

But so long as the malcontents in the judiciary and the bar continue to fuel distrust of the    executive for their own reasons,  no via-media can emerge. Independence of the judiciary concerns ordinary citizens as it does any bleeding-heart judge of the Supreme Court. Judiciary being  the last bulwark of democracy and the first defence of a citizen harassed by an overbearing system, its independence is crucial for protecting every Indian’s constitutional freedoms. Yet, if the judges looked themselves up in the mirror they will find it hard to  escape the conclusion that judiciary too has slipped morally and professionally as have other branches of our constitutional system.  

Therefore, instead of running a scurrilous campaign against the serving CJI, instead of blaming the executive, those judges who claim to have the independence of the judiciary uppermost in their thoughts out to try and locate a common ground to break the impasse over the appointment of judges.  Both sides should resile from their respective positions. The onus is on the CJI to show leadership. He should be able to ignore the recalcitrance of the disgruntled colleagues  and apply himself to the urgent task of appointments by refining the MoP in talks  with the Government.

Rahul’s essay on cow’s properties
We are all familiar with the little boy who on the eve of an exam had mugged all about cow and its properties, but when asked, instead, about  Jawaharlal Nehru,  he cleverly wrote that Nehru was our prime minister who drank cow milk which had four legs, a tail..etc., etc.

Well, something like this seems to have become common with the Congress’s boy wonder, Rahul Gandhi. On the campaign trail in Karnataka, he was asked at an indoor meeting about  `digital India killing jobs as also e-market platforms such as Amazon and Flipkart,  and how,  on coming to power in 2019,  would tackle  it. ’ Rahul’s reply went something like this, “ … what do you think is the idea behind…  idea behind these things… for example how do you view  demonetisation, how do you view GST….” There was nothing about the gentleman’s question but, like the school kid  above, he parroted condemnation of demonetisation and GST.  

Then there is this clip on social media showing  the Congress boss claiming that he saw a photograph of Shivji and found the Congress’s hand symbol, then he thought he would see other photos. He did,  and found the Congress’s hand in Guru Nanak’s photo, in Buddha’s photo, in Mahavir’s photo…  and, last but not the least in,  `in Hazrat Ali’s photograph.’   Meanwhile, if  you are a well-wisher of Rahul Gandhi, you should advise him to speak,  like his mother, only from a pre-written script. That way he can get the benefit of the doubt that he is actually a  47-year-old,  both mentally and physically.

Killer social media
Social media does not spare anyone, does it? A morphed photo shows the Congress MP Shashi Tharoor  and Salman Khan together, with the caption reading: Both are going for the launch function of their book titled:  “ No One Killed  Dear and Deer.” Ha, ha.

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