Dear CJI, An Outburst Is Not What We Need From You Now

The Chief Justice of India’s tears may not earn any sympathy. For a long time, our judiciary has chosen to protect its fiefdom in order to isolate itself from – and become unaccountable to - the rest of the sociopolitical structure.

Civilisations, cultures, empires and ideologies collapse when leaders consistently fail to display the basic qualities that are needed in crisis situations – integrity, courage, vision and character. There can be other factors at work, but this is the basic matrix.

It should be obvious to all dispassionate analysts that the Indian judicial system is about to collapse. On many criteria, ranging from the number of cases waiting for closure in courts, to the abominable delays in rendering justice to litigants, and finally, the dismal levels of corruption and graft that plague the structure, we are staring at an abyss.

For years, the judiciary (we are talking about the higher judiciary which has the powers to deal with many problems itself) has swept these problems under the carpet.

Worse, it has vigorously fought against the executive and the legislature, whenever there has been any attempt, however feeble or cosmetic, to tackle the deadly diseases that plague the Indian justice delivery system.

But what do we see the captain doing when we are nearing a catastrophe? He breaks down in front of a distinguished audience and launches an emotional appeal to the Prime Minister to help arrive at a solution.

The Chief Justice of India (CJI) TS Thakur sought to effectively pass on the entire blame to the executive and pleaded with Narendra Modi to take urgent steps to drastically increase the number of judges. No one detected the slightest effort at introspection on the part of the CJI. This was a classic blame-game exercise.

Justice Thakur’s public display of emotion failed to provoke any outpouring of sympathy for the judiciary. This is because the ordinary person does not see the judiciary working for him or her. For nearly four decades, dispassionate observers of the country’s governing system have been expressing concern about the increasing dysfunctionality of the judicial framework.

While the disease openly manifested itself during the internal Emergency of 1975-77 - highlighted by the infamous Supreme Court judgment in the habeas corpus case (Addl District Magistrate, Jabalpur vs Shivakant Shukla, AIR 1976 SC 120) - the problem worsened throughout the 1980s and the 1990s, assuming crisis levels in the last decade-and-a- half.

In 1991, the Supreme Court quietly and surreptitiously struck a deadly blow at the very basis of our Constitutional framework through the notorious Veeraswami judgment (K Veeraswami vs Union of India and Others, [1991] 3 SCC 655).

This self-serving verdict has not received the requisite attention from analysts and commentators, but it is clearly one of the root causes of the deadly cancer we have in our national fabric.

With this pronouncement, the apex court widened the Constitutional immunity (under Article 124) granted to judges of higher courts (Supreme Court and High Courts). Basically, the five-judge bench stipulated that no criminal case can be registered against a Supreme Court or High Court judge until the President permits it, after consulting the CJI, and acts in accordance with the latter’s advice.

This verdict makes it possible for a High Court Judge or a Supreme Court Judge to perpetrate any criminal offence without the fear of prosecution, unless the CJI gives his/her sanction. If this is not judicial overreach, one does not know what is.

This writer has attempted to study the malaise of our judicial system earlier in these pages, here, here, and here. However, all the efforts have had no impact whatsoever. The juggernaut of our higher judiciary marches on relentlessly on its one-way road to disaster.

In the latest drama, the fallout has been far from what the CJI could have thought of. The vast majority of reactions ranged from outright derision to trenchant observations about the numerous diseases and afflictions that the institution suffers from. These are all curable if the victim himself takes the necessary steps. It would be appropriate now to list out the major ones that have been highlighted by critics in recent years.

1. One of the worst-kept secrets is how certain counsel manage to get hearings at short notices, while others have to wait in the queue. The scenario gets much murkier when it comes to judgments and verdicts that are given when senior legal eagles appear. These are travesties of justice that Justice Thakur would be well advised to note. He and his colleagues on the bench will certainly face more opprobrium if he denies this virus.

2. Related to this is the bizarre and incomprehensible logic underlying the choice of cases and matters that the apex court takes up for consideration. What logic does the Supreme Court use to devote so much time and energy to issues like the affairs of the BCCI and, much more ignominiously, to the question of who should be allowed to use red beacons on cars ?

Justice Thakur, if you had your ears to the ground, you would surely hear some of the barrack-room humour that cases like the “lal batti” one have generated.

3. Now, we enter potential minefield territory. In some instances, the Supreme Court makes grievous and elementary errors when it takes critical decisions. For example, how can a notice be issued to the Governor of a State when it is a categorical no-no under the Constitution? Similarly, when a landmark decision is delivered by a companion bench of the court, how can another bench ignore the judgment just a few days later?

This is a reference to the Supreme Court judgment of 21 December 2015 in the case of the juvenile accused in the Nirbhaya rape, which overlooked or ignored the verdict their companion judges had handed down on 1 December 2015 (Civil Appeal No. 13940 of 2015, [Arising out of S.L.P. (C) No. 28415 of 2011], Lalaram & Others (Appellants) versus Jaipur Development Authority & Anr. (Respondents).

4. Related to this is the reluctance of the higher judiciary to overrule or overturn clear mistakes made by their colleagues in earlier decisions. Here again, there is a clear and historic judgment of the Supreme Court passed as early as in 1988 (Supreme Court of India, AR Antulay vs RS Nayak & Anr, AIR 1531, 1988 SCR Supl [1]), in which a five-judge bench presided over by the late Sabyasachi Mukharji, observed the following :

…in rectifying an error, no personal inhibitions should debar the Court because no person should suffer by reason of any mistake of the Court.

The fundamental rule of justice demands that a Court should not be shackled by rules of procedure or by notions of propriety, when a glaring and perceptible injustice has been done.

Two examples would be in order here. A Mumbai resident was deprived of his own home because of an obvious error in the initial judicial forum. Thereafter, every court (including the High Court and the Supreme Court) failed to give him any relief, because they did not want to overturn a blatant mistake.

In the Arushi case, too, there were clear errors of fact and law in the decision of the trial court but the hapless parents are still waiting for their appeal to come up in the Allahabad High Court, which has a waiting queue of nearly 15 years.

5. The flip side of the above is when the Supreme Court and the High Courts bend over backwards to take up matters involving high-profile individuals. It is just not possible to empathise with the amount of time that Salman Khan and Sanjay Dutt were given in the higher courts. Similarly, how many prisoners have been fortunate to receive the number of hearings that Subrata Roy has obtained in the highest court?

6. How does the Supreme Court allow the various High Courts to blatantly disregard/disobey its decisions and verdicts without taking any disciplinary steps against wayward High Court judges? The reference here is to the brazen delays by various High Courts in “reserving” orders/judgements for years, despite a specific prohibition of such delays.

7. On this dismal subject, here are some home truths for CJI Thakur. One can be sure that few citizens will be overcome with joy when they realise that he and his fellow judges work barely 188 days (give or take a few) in any calendar year.

It may be tough being a judge in India. But CJIs should remember that true warriors and leaders do not cry when they are faced with challenges, especially when most of these challenges are the result of their own past failures.

The last words belong to Gurudev Tagore.

It is the mission of civilisation to bring unity among people and establish peace and harmony. But in unfortunate India, the social fabric is being torn into shreds by unseemly outbursts of hooliganism, daily growing in intensity, right under the very aegis of ‘law and order’.

The wheels of fate will some day compel the English to give up their Indian empire. But what kind of India will they leave behind, what stark misery? When the stream of their centuries’ administration runs dry at last, what a waste of mud and filth they will leave behind them!

The Renaissance Man was, of course, referring to the residue of Pax Britannica. Without stretching one’s imagination too much, one can replace a few words in the above text and visualise our times.