~By Inderjit Badhwar

If you think that last week’s press conference by four of the senior-most judges of the Supreme Court—the very Collegium itself–on the sprawling front lawn of Justice Jasti Chelameswar’s residence, during which Chief Justice Dipak Misra was savaged, was a dizzying display of free speech in a democracy, well, think again.

What it amounted to was a mutiny that could well sink the Bounty—the ship of state that holds aloft some of the worthiest principles of the Constitution enshrining this Republic’s freedoms and liberties. The Executive branch must be laughing all the way to the bank! For years, there have been attempts to emasculate the Judiciary as the Executive tried its damndest to harness powers not bequeathed to it by the Constitution. Indira Gandhi tried, but barely succeeded during the Emergency. The balance was restored by a series of measures which guaranteed safeguarding the “basic structure” of India’s secular Constitution and Fundamental Rights.

The Supreme Court judges had disagreements, they wrote dissenting opinions, they participated in seminars critical of judicial delays, appointment procedures, the bureaucratic sluggishness in the registries, court politics, judicial corruption and discipline, escalating costs, “uncle judges” … you name it. But in the end, as literally the court of last resort, the judiciary, especially the Supreme Court, came to the aid of the wronged, the dispossessed, women’s rights, gender neutrality, press freedoms, welfare entitlements, victims of police excesses and state sultanism.

The people of this land have been the judiciary’s real constituency and support system helping to sustain its independence regardless of its all too obvious failings. Last week’s open rebellion against the chief justice was a devastating hammer blow to the very institution itself which could do immense damage to its popular support system which gives it the strength to safeguard individual liberties and freedoms from Executive excesses. And this “mutiny” comes at a time when the apex court has been engaged in a furious battle with the Executive over what it considers to be encroachment on its powers to make appointments under the current Collegium system. It also comes at a time when hypersupremacist members of the ruling dispensation are calling for a change in the Constitution to erase its secular character and the principles of tolerance and coexistence which are embedded in that concept.

Judges are no angels. They have strong political views. There are Modi-haters. There are RSS-fans. There are some who have been associated in the past with alleged Wildlife Act violations involving pachyderms. But institutionally, they are a protective wall. Breaching this wall could be a fatal attack on the Constitution. A divided and splintered Supreme Court is no match for an Executive branch hell bent on grabbing power at the expense of individual liberties. A weakened chief justice is vulnerable to cheap shots and attacks from PIL-crazed lawyers for their own agendas, retired judges, state courts, lawyers’ associations. His very dignity and authority is at stake. He can be prevented from making bold decisions on the filling of vacancies and decreasing pendency. It is shameful that major high courts in Kolkata, Mumbai, and Delhi still have acting chief justices.

A divided and splintered Supreme Court is no match for an executive branch hell-bent on grabbing power at the expense of individual liberties. A weakened chief justice is vulnerable to attacks from PIL-crazed lawyers for their own agendas, retired judges, state courts, lawyers’ associations

In other countries—the UK being a case in point—vacancies for the Chief and Deputy Lords positions (equivalent to our Supreme Court) are more or less open to competition for qualified candidates. But in India, it has been traditional for a retiring chief justice to name his seniormost deputy as his successor. The likely candidate for this choice after Justice Misra retires is Justice Ranjan Gogoi. But what if the retiring CJI, peeved by Justice Gogoi’s participation in the open rebellion, refuses to name him? Would not this open up a Pandora’s Box of politics within the benches and give the Executive an open invitation to interfere? Would not this weaken the Supreme Court’s defence of the Collegium system and pave the way for the Executive to pack the judiciary with its own political choices and facilitate the domination of the doctrine of Executive Privilege over the Separation of Powers?

The grievances expressed by the four honourable judges are not without merit. But surely they could have been pursued without bringing the CJI and the judiciary into public disrepute and thereby weakening its popular base of support in these extremely troubled political times when there is need for judicial unity to combat the forces of extremism and polarisation and selective violence. Surely, one method could have been a signed letter to the president, conveniently leaked to the Press.

Supreme Court judges do not need popular pulpits as do JNU and BHU students to air their grievances publicly. Imagine the judicial mayhem which could ensue if groups of High Court and Sessions judges began behaving in a similar vein. All semblance of authority would be eroded. And an already flawed system would go to hell.

What can be divided can be ruled. And that is what seems to be happening now. Already tongues are wagging. Supreme Court watchers say the apex benches are now factionalised into camps—Justice Gogoi camp, Justice Kurian camp, Justice Lokur camp, Justice Chelameswar camp, Justice Ramana camp…and there’s the “neutral “camp consisting of judges like Chandrachud, Nariman, Lalit, and Bobde…

This is not a blind defense of Chief Justice Misra who is undoubtedly in an uncomfortable position and who, I am sure would acknowledge many of the criticisms as valid. It is aimed at protecting the institutional importance of the chair he occupies from the perils of politicisation. It is aimed at reminding the honourable judges that if the judiciary is allowed to be reduced to ashes, there will be little or no chance of another Justice Hans Raj Khanna rising like a phoenix out of the fire to challenge Indira Gandhi when she was at her imperious worst.

As Ben Franklin once advised the Americans: “We must all hang together, or assuredly we shall all hang separately.” I believe that devastating axiom applies today to the Indian judiciary more than it ever did.

—Inderjit Badhwar is Editor-in-Chief, India Legal.
He can be reached editor@indialegallive.com