The four judges have left a trail of unsettling questions. And there are no easy answers

How the institution responds to the challenge it faces will be a true test of its character and the values it stands for.

Following the press conference conducted by four of the five senior judges on Friday afternoon about the actions of their fifth colleague, the chief justice of India, feverish activity is likely underway in at least some corridors of power. It is likely that No 5, Krishna Menon Marg, which is the CJI’s residence, is one such place.

In the January 12 press conference, it emerged that the four judges were unhappy with the manner in which the CJI was assigning cases. They had written to him a few months prior, but to no avail. It appears that the breaking point was reached when the CJI assigned a case disregarding specific concern expressed by the four judges in a meeting on January 12 itself. On being questioned, one of the judges affirmed that this pertained to the case of Central Bureau of Investigation judge Brijgopal Harkishan Loya. Loya was presiding over the case relating to the fake encounter of Sohrabuddin Sheikh, in which Amit Shah, who is now Bharatiya Janata Party president, was an accused.

The judges released an undated letter, which they said had been sent by them to the CJI two months ago, cautioning him about the perceived harm to the institution that assignment of cases without a rational basis could cause. The letter explicitly omitted further details of instances which the judges felt had already caused harm to avoid embarrassment to the institution. The press conference unfortunately was as cryptic as it was brief. The letter seemed to point to serious issues and yet deliberately refrained from spelling them out.

What is clear though is that these events came to light after festering in the darkness for several months. What began as faint murmuring in court corridors has turned into a loud clamour in the national media. An institution which has long prided itself on its reputation for secrecy and delicacy, while demanding accountability and transparency from other branches of government, appears to be struggling to take a long hard look at itself.

Those closely connected with the institution in their capacity as eminent lawyers, bureaucrats and former judges have scrambled to restore normalcy. The government states that this is the judiciary’s internal issue. The Attorney General stated that the matter will be resolved by Monday. In fact, the senior-most judge at the press conference said that they would go back to work on Monday. Perhaps it is for the best that normalcy is restored to what is a mostly illustrious institution.

Image: Ravi Choudhary / PTI
Image: Ravi Choudhary / PTI

Unsettling questions

Except, that come Monday, things will never be the same again. The judiciary, which has usually been masterful in maintaining an outward appearance of composure, faces difficult challenges given that deep misgivings amongst its senior members have burst into the open. The press conference through which it was done, raises some profound questions which can be considered from diametrically opposing viewpoints.

A cynical view raises many question about the press conference.

Firstly, Supreme Court judges have many years of experience in the legal field. Of all people, they are acutely aware of the importance of precise language and the finality of their decisions. Surely, the virtue of clarity is not one which is lost on Supreme Court judges. Why then the seeming lack of candour in spelling out what exactly they see as problematic? The haziness of their description of the problem perhaps casts a longer shadow than the conduct they take issue with.

Secondly, the judges seem to have been unable to break out of the mould of an imperious institution. The judges strategically deploy the veil of secrecy by saying that there are problems but withholding vital information to avoid “embarrassment”. The selective disclosure of information makes one wonder if there are other balls in the air which the public does not know about. It gives no comfort to see one case, amongst the hundreds of challenging cases the Supreme Court is confronted with regularly, as being the breaking point calling for extreme measures.

A more charitable view of the press conference sees it as a genuine plea for help by the four judges. However, for this view to prevail, several prior questions need to be answered.

Firstly, there is a need to disclose why internal checks, which seem to have precluded the need for public chastisement of individual judges, failed this time.

Secondly, what removes this press conference from the realm of the contemptuous? The answer to this is important as it also determines the bounds of this course of action. When, if ever, would it be permissible for a High Court or subordinate court judge to resort to such action? Faced with many more hardships, fewer protections and supervised by senior judges who may sometimes be uncaring, they perhaps are in the most dire need of this recourse to draw attention to their plight. If arguably the most powerful individuals in the country cut such a hapless figure, what then of those lower down on the judicial hierarchy.

Thirdly, the source of authority of the judges to adopt this course of action needs clarification. Some news articles have likened the judges’ actions to Justice HR Khanna’s judgment in the habeas corpus case of 1976. It is important however, to remember that Justice Khanna’s actions chiefly took the form of a dissenting opinion rather than a statement in the media. The identification of the precise source of power will prevent it being used whimsically.

Image: HT
Image: HT

Need to take stock

At the time of writing, the four judges have not said anything further and there has been no statement from the CJI. In the absence of disclosure of the full facts at the heart of this controversy, we must refrain from either lauding or condemning the action of either side. As the New Yorker’s Jelani Cobb recently wrote, “From a distance, a mile marker and a headstone can appear indistinguishable.”

Given that the testing time for the Indian judiciary begins on Monday, which coincides with Martin Luther King’s birth anniversary, the nation and the judiciary can seek inspiration from a letter King wrote his detractors. Now famous as the Letter from Birmingham Jail, he wrote:

“Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks to so dramatise the issue that it can no longer be ignored…I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension which is necessary for growth.”

It is undeniable that the “constructive tension” is thick in the air. Public attention will be focussed on the judiciary for at least some time in the coming weeks. How the institution responds will be a true test of its character and the values it stands for. Dropping the issue too quickly means a loss of credibility, but holding on to it for long means making the painful but necessary changes.

The four judges have set alight what seems to be a trail of gunpowder. Where it leads is what remains to be seen.

Nishant Gokhale is pursuing his LL M at Harvard Law School. The views expressed are personal.

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