Judiciary: Faultlines and patch-up talks

K. Raveendran

An unusually warm January has produced an unprecedented cold war, the first such in the annals of Supreme Court, with a detente totally absent. Four judges, all men of known integrity and eminence, one of them a future Chief Justice, have staged a mutiny against Chief Justice Dipak Misra and his ways, which the nation is still struggling to come to terms with. The Bar Council says things are under control and will be normal any time soon. Although every day dawns with the signs of a thaw, by evening the situation is back to square one, with both sides sticking to their guns and making a solution as difficult as it appeared on the first day of the revolt. Even a second meeting between the four senior judges and the Chief Justice failed to melt the ice as the CJI refused to accede to the demand of the aggrieved judges that he call a press conference to acknowledge their grievances. Having criticised the judges for taking their issues to the ‘people’s court’, instead of seeking internal means of redressal, the reluctance of the official ‘faction’ is only natural.
Maybe the issue is not resolving because there is no resolution possible. So deep-rooted is the problem that a patch-up between the two sides could just leave the original issues as they are. It is like the trial of a murder case in which all the accused have been let off because their crime could not be proved. But that does not mean that the murder did not take place and it ceases to be an event. The same is the case with the revolt. Even if the four judges settle with the CJI and everything is hunky-dory once more, the issues raised, despite all the heat, will continue to haunt public conscience for a long time to come. At least a section of people have always believed that, in India, law and justice are for those who can afford these with money. The dictum that not even one innocent person shall be punished even if a thousand guilty go unpunished has been used to the hilt  to let the high and mighty off the hook, rather than to protect the innocent, thousands of whom have been made to suffer for no fault of theirs. In contrast, those who wield power and influence hardly face the crunch.
So, when it is on the authority of four of the five seniormost judges in the Supreme Court that the affairs of the court are conducted in ‘less than desirable’ ways and that the practice of bench-hunting is rampant to ensure that a certain verdict goes a certain way, it shakes the very foundation of our sense of justice. It is like the mathematical practice of first stating the result and then constructing the steps backward so that when the process is complete, the result is exactly the same as the assumption. When it is alleged that most of the politically sensitive cases have been assigned to junior judges, it plants a doubt in the mind of everyone. One of the national dailies tracked 15 'super sensitive cases of national importance' in the last two decades, which included Bofors, Rajiv Gandhi assassination, L K Advani's trial in Babri masjid demolition, Sohrabuddin Sheikh fake encounter, Best Bakery etc. And it turned out that the four seniormost judges were kept away all the time as the cases were referred to 'select benches' headed by junior judges. This makes it obvious that the issue had been decided on grounds other than competence as the senior judges can safely be assumed to be at least as competent as the others, if not more.
So, if personal preferences, read prejudices, are allowed to influence the selection of judges, it amounts to acknowledging the possibility that the judgments issued by them may also suffer from personal bias. And that destroys the very foundation and people’s faith in the judiciary. This crisis of confidence cannot be overcome by the judges sitting around a table and sorting out their differences. When some of the judges accused the mutineering judges of destroying the institution of Supreme Court, they were partly right. But more right is the fact that it had already been destroyed by some of the practices prevailing in the top tiers of judiciary, such as bench-hunting for ‘pliable’ judges.
It is an established norm that if one part of an equation is defective, the other part will also fail scrutiny. In the context of court trials, this is widely followed in recording evidence from witnesses. If one part of a witness account is found to be false, the whole disposition is sought to be established as invalid because it raises doubts about the credibility of the witness in question. In ancient India, there existed a tradition in which the courts of kings and emperors hosted touring wise men and honoured them for their knowledge. The title of the wisest man was decided on the basis of no-holds-barred debates, where each argument had to fulfil some eight conditions so that there was no scope for ambiguity between what was stated and how it was understood. Even one fault would make the argument liable to be rejected. One is not sure whether the ancient texts prescribed any norms for the clarity of court judgments. But there are texts which suggest that if a crime went unpunished, one part of the blame would devolve on the ruler and an equal part would be apportioned to the account of the person sitting in judgment. If the concept is applied to the modern judicial context, our courts would have earned tonnes of blame as their dividend for miscarriage of justice! This is the real issue left open by the Supreme Court mutiny. (IPA)

Wednesday, 31 January, 2018