Telangana, Et Al: Judicial Independence Faces Its Greatest Threat From Within

The Supreme Court, which believes that judicial independence depends on not giving the government any say in the appointment of judges to the higher judiciary, needs to ask itself a simple question: is independence merely related to who selects judges, or about how judges conduct themselves?

For some time now, warning signals have been flashing from many lower courts where judicial discipline has been impaired by the injection of politics into their functioning. This politics has been injected not by politicians, but the judiciary and the legal fraternity themselves.

On Tuesday (28 June), some 200 judges in Telangana went on mass casual leave demanding the reinstatement of suspended judges. These judges had organised and participated in a protest against the appointment of Andhra-origin judges to the state’s judicial cadre.

Last February, Justice CS Karnan of the Madras High Court, “stayed” an order of the Supreme Court (yes, Supreme Court) transferring him to the Calcutta High Court. He then belatedly apologised, but the Supreme Court has not hauled him up or suspended him for his misconduct. If an apology is good enough after a senior judge himself shows contempt of the orders of the highest court in the land, why will other wayward judges not think there is no price to pay for indiscipline? All you need to do is cock a snook at the higher judiciary and then send an apology note, and you have made your point. If there is no punishment for clear cases of contempt of the judiciary by its own officials, why should the citizen respect the judiciary? We also know how to escape by merely saying “sorry.”

In January last year, Stalin, a lawyer practising with the Chief Metropolitan Magistrate’s court in Chennai, was killed by members of his own community, says The News Minute. Just as judges must show decorum, lawyers practising in their courts have to at least not behave like thugs and rogues. If lawyers can be killed in broad daylight, which judge will feel free to give independent orders? What can happen to lawyers can happen to judges too.

After Justice Karnan showed open defiance, first to Madras High Court Chief Justice Sanjay Kaul and then to the Supreme Court itself, which judge would want to be transferred to this state? And why would judges appointed to this court act independently, if their own brother judges are going to behave abominably, often in cahoots with lawyer-criminals. Intimidation of a High Court Chief Justice through active defiance is not conducive to judicial independence at all. Especially if caste is going to be used to justify your actions, as Justice Karnan did. Once you bring caste into the argument, all arguments stop.

Coming back to the Telangana case, let’s leave aside the aspect of whether or not there was unfairness in the judicial selection process of the Hyderabad-based High Court, which serves as the main court of appeal for both Telangana and Andhra after the state was bifurcated in 2014.

There may be a case for creating a separate high court in Telangana, and there may also be a case for the judicial cadre in Telangana to have more local lawyers.

But there is no case whatsoever for judges to behave like trade unions and take to the streets. What respect can ordinary citizens have for judges who take processions demanding this or that. If unfairness is alleged, judges can themselves file a case in court to get this remedied by offering proof of bias against Telangana judges. By going on casual leave and defying the High Court, they are essentially using a political weapon to fight their own superior judiciary. If this is not a subtle form of intimidation, what is?

Now consider two points that impact the judiciary’s independence directly.

An Indian Express report in July 2012 said that of the 21 judges who retired from the Supreme Court after January 2008, 18 got various post-retirement jobs in commissions and tribunals. More recently, one Supreme Court Chief Justice took over as Governor of a state, and another has been appointed chief of the National Human Rights Commission. If Supreme Court judges need jobs after retirement, can’t governments use this to generate favourable judgments before they retire, or at least promise such jobs with pliable judges? What does this do to judicial independence?

In 2010, former Law Minister Shanti Bhushan (and his son Prashant Bhushan) alleged that eight of the previous 16 Supreme Court Chief Justices were corrupt. When the Supreme Court tried to haul them up for contempt, they said they were willing to go to jail but will not withdraw their allegations. And guess who blinked? The Supreme Court. No action followed.

Now consider this point: if the Supreme Court backs off when defending its own reputation, isn’t it a fair guess that lawyers who have some dope on alleged judicial corruption have leverage with the judiciary? Can this information not be used to blackmail judges? Why didn’t the Supreme Court call their bluff? And if it wasn’t bluff, hasn’t the court’s reputation for being incorruptible been damaged?

The judiciary faces more threats to its independence from within than without. It needs to move fast to control the damage being done by indiscipline and waywardness in the lower judiciary and the legal profession. The higher judiciary needs to set a higher bar for itself and demonstrate the highest standards of probity and transparency.