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Judiciary's hour of reckoning

By Prem Chandran IN THE AGE OF ?hidden agenda?, that does not necessarily exclude those manning the Indian judiciary too, .....




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01-13-2018
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Thumbs up Judiciary's hour of reckoning


By Prem Chandran

IN THE AGE OF ?hidden agenda?, that does not necessarily exclude those manning the Indian judiciary too, it is difficult to surmise who?s right and who?s wrong in the just-erupted open tussle between the Chief Justice of India (CJI) and four senior judges of the Supreme Court led by Justice Chelameswar. There are those who hail the four-judge team and rile at the CJI, and there are those who speak out in contrary voice too. The India that is the world?s ?noisiest democracy? can afford all these and more, and pride itself for the freedom it accords to wanton acts by all the humans that dwell on its land vast and enduring surface! Judges were the only exception so far to activism. They maintained a dignified exterior. That fortress of dignity has been demolished with one single act in Delhi on Friday, January 12, 2018.

True, to save the day, wisdom prevailed on CJI Dipak Misra when he decided not to go public via holding a press conference to answer allegations raised against him by the four judges. Else, it would have been all too chaotic a state for the Indian Judicial System. The matter does not end there, though.

It was in an unprecedented manner that the four judges opted to go public and target the CJI. This open airing of dissent being a very serious matter, the four judges should in the least have made clear as to what went wrong with the CJI or the Supreme Court, rather than stating there was a threat to democracy from the judiciary ? of which they are a part. Chelameswar opted to talk in riddles, with the other three judges sitting by his side. They obviously thought India would rise up in support. India rather watched the scene with skepticism. There could be more than what met the eye.

This evasiveness on the part of the group of four is the height of irresponsibility. It raised suspicion that they have an axe to grind. Note the loaded contention: the ?CJI is one among equals?, meaning he has no more power or importance than these four worthies to decide on matters; and that he must do what they dictate to him. Would Chelameswar have happily submitted himself to such a persuasion if he were to be the CJI? He has no chance to become CJI and hence the pontification from the pulpit. The first lesson in discipline is to respect the elders/seniors, be it in government, judiciary, in a profession or at home.

In a round-about fashion, Chelameswar hinted that the four judges ? who are part of the collegiums other than the CJI ? have differences with CJI over important cases being selectively being assigned to ?junior judges?. There are two assumptions that arise from this contention. One is, these ?senior judges? expect ?major? cases to be assigned to them; two, ?deviant? action on the part of the CJI is a deliberate attempt at influencing decisions, or to create conditions for this; which could lead to a miscarriage of justice, and this would be a bad omen to democracy. The reference in specific was to the way the CJI handled the Justice BM Loya death case. Justice Loya was the judge hearing the Sohrabuddin fake encounter case in which BJP chief Amit Shah is an accused.

The encounter happened when Narendra Modi was CM and Shah the home minister in Gujarat. Nothing yet goes to show in a fairly conclusive manner that the judge was physically harmed. But, there are inferences based on circumstances; like, it happened in (a guest house) Nagpur, the base of RSS; and that details of the judge?s phone calls before the death were missing, and that the body was reached to his home in western Maharashtra without proper escort, etc. Note the fact that the judge died after admission to a hospital, as he complained at night of physical discomfort. One of his relatives now say she noticed an injury mark on the neck of the judge?s body; this is a regular script in any sudden death case. The matter needs be investigated, no doubt. If a junior judge of the Supreme Court is assigned the task of hearing the case, there?s nothing wrong with it, per se. Past history shows those holding senior positions are more corrupt, deviant, and position and pelf-seeking than the juniors. Junior judges are experienced and qualified to handle major cases; which is why they are there at the apex court.

Or, to go back to Chelameswar?s charge that cases are ?selectively? being given to judges of the (CJI?s) choice. Pray, when was it that this was not happening? This happened all through the history of Indian courts, and we can hope against hope that all such assignments were/are done without personal considerations. Where a human element is involved, personal considerations cannot altogether be avoided. That?s a problem with governance. So with monarchies, so with dictatorships and so with democracies. This happened all along. Why Chelameswar and the three other judges chose to make an issue out of this at this precise juncture, as if they did not know what was happening so far, needs elaboration. By doing what they did, these judges have not presented a better picture of themselves and instead gave rise to suspicion they have an axe to grind against someone.

Justice Chelameswar is 64 years old, and he is still continuing as a judge of the Supreme Court. CJI Dipak Misra is 64 as well. These are eloquent testimonies to the way Indian judiciary functions. In India, retirement age is (a maximum of) 60. But, Supreme Court judges can stay on till age 65; and high court judges till 62. Chelameswar or the CJI can thus be around, but for no more than a year hence. Promoting a judge to the CJI post often happens in India in the twilight years of a judge?s career; the result being that, they retire too soon. They have little time to set new trends or do a clean-up exercise within their limited powers.This shakes the system, but who?s bothered? Not the politicians who lord over the nation and are interested mainly in saving their chair; or in eating away or looting public money. The health of the nation and its institutions does not figure in their scheme of things. The resoluteness with which PM Modi saw through the GST bill ? a long-held-back market taxation reform measure, despite hurdles put up by the Congress by way of obstruction in the Rajya Sabha ? is an exception to this general trend. It is here that he deserves a word of praise. The Triple Talaq bill is another. What more?

Why are judges allowed to hang around when they are past 60 ? a situation that could result in juniors not being able to climb up the ladder. There are no logical explanation, other than that their wisdom in arriving at sane judgments has a higher worth. If so, so with a senior government officials; so with a journalist who gets a pittance as salary and no pension but is forced to retire at age 60; and a school teacher whose knowledge past 60 is definitely more than what a greenhorn teacher has, but will have to exit school. Rejuvenation is in the order of earthly existence. That is the way forward for institutions as well. The old should yield ground and pave way to the new, the next generation with more energy to their body and mind. A nation can carry forward in a better way by injection of new blood. So with the judiciary as well. Judges in retirement mode are not fit to be the CJI.

Note the fact that a visitor at Chelameswar?s residence immediately after the press conference he held Friday was D Raja, senior leader and MP of the CPI. Clearly, this adds a political twist to the judges? revolt against the CJI. Raja says he went to the residence after he was told by the judge to drop in if he was around and free. An immediate inference was that he reached there as an emissary of the Congress leadership, to offer guidance or to complicate matters further. Chelameswar, if he was sincere to the causes he claimed he upheld, should not have allowed Raja or any politician in at this crucial juncture when he as a senior judge unleashed a major revolt. The Communists in India hold a dubious reputation from the time of the British, and equally prominently since the time of Indira Gandhi as prime minister. They are there to act as fifth columnists, stooges for the Congress party in recent decades, and they push the Congress agenda both inside and outside parliament. These leaders, generation after generation, have shown little interest in what they are supposed to do or fight for: push the causes of the poor and disadvantaged sections of the society.

Communists showed little interest in fighting against tendencies like feudal overlordship in much of the North, in Orissa, or in the two Telugu states, where the poor are at the receiving end and are in deep distress. They form the ?cattle class,? at the receiving end of all vested interests and casteist aggressions. Fighting against such tendencies, as any Communist worth his salt is expected to, would involve considerable legwork and sweating out ? but these leaders are comfortable playing politics from the air-conditioned homes and party offices or Parliament, and issuing statements that are lapped up by the friendly English media that has the same elitist class interests. They together hold secularism as the shield, and promote their vested interests. The Communist leaders mostly speak in the language of the Queen. Likely, Chelameswar?s home might have offered another air-conditioned comfort for politicking to Raja at the Congress? behest.

Justice Chelameswar is an honourable judge, just as every other judge in this country is honourable; and that includes the CBI special court judge who dismissed the 2G Spectrum case after years of hearing, with one nasty, horrendous word, ?Rejected.? Chelameswar on his part earned some fame by being a party to issue of judgments like the one took away the power from police to arrest anyone on the charge of posting a controversial email. He along with Justice RF Nariman won wholesome praise for this. He was also part of the three-judge bench that stressed Aadhar was not necessary for government subsidies. The general public welcomed those judgments; so did they, of several other pro-people judgements of other judges or benches in this country. These need not however give Chelameswar or some other judge the status of a hero. Far from it.

One suspects politics is at play also as the stage is getting set for the General Elections 2019. The Opposition is sure, with the present round of two assembly polls going in favour of the BJP in Gujarat and Himachal, that the Modi fortress is impregnable. Modi Magic still works; not because he did a great job as PM, but because he did better than the likes of Manmohan-Sonia, the two-in-one enterprise, and because the Opposition is not able to match up to Modi?s tantrums on the electoral stage. Attacking Modi helps little. But, to get at Modi, a way forward is through targeting Amit Shah, his close confidant. Shah is no angel. He has skeletons in his cupboard. That might start falling one after another; and he is sure to bring disrepute to Modi sooner or later. Now, the Jusice Loya case is seen as a silver lining to the Opposition in the run-up to GE-2019. For now, it will serve a purpose; and it could as well end up as another ?Rejected.? Does any case against any influential politician end up in punishment other than that, of course, of Lalu Prasad? Even Jagannath Mishra, another former CM, extricated himself out of the same fodder scam with relative east. Elitists can be a law unto themselves. Even elitist Lalu escaped with a small punishment.

By allowing Raja into his house at the most inopportune time, Chelameswar has strengthened feelings that, behind his cry for protecting democracy through safeguarding the institution of judiciary, he had an agenda, or that he was simply creating conditions for someone to fish in troubled waters. Sitaram Yechury is smarter than Raja. Reason why he did not rush to Chelameswar?s residence. By showing up Chelameshwar's home, Raja in fact defeated a cause. The cause was larger than a Chelameswar; which is that the judiciary must function in proper ways for all times to come. premcee@gmail.com; indiahereandnow.com

-- The writer is a former Editor, a media consultant and activist of India Against Corruption.-IHN-NN
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