Judges in controversy, courtesy judges

Justice Arun Mishra courted controversy for devoting two sentences in his seven-page vote of thanks to describe PM Narendra Modi as an “internationally acclaimed visionary” and a “versatile genius, who thinks globally and acts locally”.

In an unprecedented step, the Supreme Court Bar Association led by Dushyant Dave adopted a resolution censuring Justice Mishra for ‘singing paeans’ to the PM and appealed to judges to refrain from having close proximity with political executives to maintain judicial independence and faith of public in courts.

Justice Mishra’s praise for the PM — “thinks globally and acts locally” — was belied as communal riots singed parts of Delhi and the police, under the Centre’s control, appeared lethargic. The situation is now under control but it remains a mystery why the police had no inkling about the planning to unleash mayhem.

To Justice Mishra’s credit, he was honest about his admiration for the PM. There are many judges who wear different masks in public and private. More about that later. Let us first discuss an emerging trend among SC judges to portray themselves as champions of “peaceful protests anywhere” as a right intrinsic to the right to free speech and expression.

Given the Shaheen Bagh blockade for more than two months, should they have spoken about it? What if a similar case comes before them tomorrow? Will the parties, both pro and against, feel assured of justice? Will they recuse from hearing such cases having made public their views?

Recently, Justice Deepak Gupta said, “Right to dissent is the biggest right and, in my opinion, the most important right guaranteed by the Constitution.” He said those in power could not claim to represent the will of the people. Who then actually represents the will of the people? We would like to know.

Justice Gupta, now professing his love for dissent, was part of a diametrically opposite course of action on August 8, 2018, while being on a bench headed by Justice Madan B Lokur. When the bench suo motu took up encroachments in the whole of Himachal Pradesh, the state counsel pointed out that Justice Gupta’s wife had filed a PIL relating to encroachment of forest land in HP.

Mere pointing out of a fact got the bench’s goat. “Why is the state raising this issue? Does it not have anything better to do?” the bench asked. On finding that the counsel did not have a copy of the PIL, it said an officer of the court (lawyer) should neither be a mouthpiece nor “chamcha” of the government. So much for free speech and dissent!

Justice D Y Chandrachud, in a much hailed recent speech, said, “Destruction of spaces for questioning and dissent destroys the basis of all growth — political, economic, cultural and social. In this sense, dissent is a safety valve of democracy.”

He was right. But a chronic obsession to criticise will not spare even the saintliest. Right to free speech is increasingly being used to score a point or scare a judge. Dissent and criticism are often aimed not to help a person amend mistakes but to make him squirm.

Take for example, Justice Chandrachud’s recent landmark judgment granting permanent commission to women officers in Army’s non-combat corps. In the judgment, ‘Ordnance’ was referred to as ‘Ordinance’ seven times. Would it be fair criticism if one says ‘the judge who does not know the difference between ‘Ordnance’ and ‘Ordinance’ is incapable of deciding a sensitive issue concerning the Army’? That would be unfair and below the belt.

Many renowned advocates and politicians, opposed to the present dispensation, resort to skullduggery to lament that never before had SC judges been so beholden to the political executive. We will go by the SC’s advice in D Ramaswamy judgment [(1982) 1 SCC 510], “Some times, past events may help to assess present conduct.”

A diehard Congressman, Bahrul Islam, resigned from Rajya Sabha to become a judge of Gauhati HC in 1972 and retired on March 1, 1980. Nine months after retirement, he became an SC judge in December 1980. Six weeks before retirement and a month after giving a clean chit to then Congress chief minister of Bihar Jagannath Mishra in a forgery case, he resigned from the SC to contest LS elections. The polls were postponed and he was elected as Congress MP to RS for a third time in June 1983.

One who somewhat mirrored Justice Islam was Justice Ranganath Misra, who diligently carried out the task assigned by then PM Rajiv Gandhi of inquiring into the 1984 anti-Sikh riots in Delhi and found no one responsible for the massacre of over 3,000 Sikhs. After retiring as CJI, Justice Misra headed the NHRC and went on to become an RS MP for Congress in 1998. Justices Islam and Misra didn’t need to sing paeans to the then PMs. They were masters of camouflaging their loyalties. And there were many more like them.

The SC judgment in R C Chandel case [2012(8) SCC 58] had said, “A judge, like Caesar’s wife, must be above suspicion. Credibility of the judicial system is dependent upon the judges who man it. For a democracy to thrive and rule of law to survive, justice system and judicial process have to be strong and every judge must discharge his judicial functions with integrity, impartiality and intellectual honesty.”

(This article was published on The Times of India on March 2, 2020 and has been reproduced in full.)

Editor’s Note

Ever since Narendra Modi came to power in 2014, we have been hearing chatter of institutions being co-opted by the executive, especially the judiciary. This, despite Chief Justices like HL Dattu and TS Thakur who were openly dismissive of the Modi Government and rejected the progressive NJAC (National Judicial Appointment Commission) bill introduced by the Government to bring judicial appointments in Bharat in line with other modern democracies and end the opaque Collegium system that many past judges too have criticised.

What got the goat of left-liberals, the self-appointed guardians of our Republic, was the refusal of then CJI Dipak Misra to delay the Ram Mandir hearing any more – remember, the case had been languishing in SC for 7 years and in the legal system for 132 years at that point. Sibal, Dave and Dhawan were stunned – they screamed, threw tantrums, threatened a walk-out, but the CJI would not budge. Liberals were already fuming after SC had earlier dismissed a petition seeking a new probe into death of Justice BH Loya, who ‘activists’ claimed was ‘murdered’ as he was hearing the Sohrabuddin encounter case.

A month later, four senior SC judges –Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph – held an extraordinary press conference criticizing CJI Misra’s style of administration and claiming ‘independence of the judiciary was in peril’. Three months later, Congress-led opposition parties sought impeachment of the CJI. The message was clear – thou shalt not step outside the boundaries decided by us.

But truth has a way of winning out. The Ram Mandir hearing eventually resumed (after the LS 2019 elections as the Congress ecosystem lawyers wanted) and a unanimous verdict awarded the disputed land to Hindu petitioners. Next came, abrogation of Article 370 and passage of CAA. Both these executive decisions are being challenged in the courts. But, unlike Hindus who waited 72 years after Independence for a decision over their most holiest of spots, left-liberals demand instant results. Hence we see the Manders and Mehtas deriding the SC, implying it is now beholden to Modi, and asking mobs to take to the streets to revoke CAA.

As can be seen from the above sequence of events, left-liberal hypocrisy is mind-blowing, to say the least. And it is not often that mainstream media, dominated by the same left-liberal club, addresses this elephant in the room. The above article is one of those rare instances when MSM springs a pleasant surprise.


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