Of Fear Of Judgement

The founding ‘fathers’ of the nation (ironically conceiving of the nation in the form of the female divine or Bharat Mata) followed western models of constitution-writing to create the strongest legal document in the country. This continues to be used to set codes of acceptable behaviour and apply the European idea of the nation-state onto the multiplicities of the Indian experience. Notwithstanding the lack of adjustment of a Western model of nationhood on the vast diversity of ‘Indias’, it sets three arms of government in stone—the legislature, executive and judiciary.

The first two arms focus on policy formulation and implementation while the third arm, apolitical and economically independent, ensures a system of checks and balances. Only during Constitutional overturning did the judicial fabric show signs of strain, in fact, the breakdown of democracy could be directly related to the failure of justice during the Emergency of 1975-1977. This happened after the then Prime Minister, Indira Gandhi, instituted Justice A.N. Ray as the Chief Justice of the Supreme Court of India by bypassing the system of seniority (and superseding three judges).

This emerged from a disagreement between the legislature and the judiciary about making laws changing the ‘basic structure’ and principles of the Constitution, which led to a ‘National Emergency’ proclaimed by Mrs. Gandhi to lead to grave human rights violations, censor freedom of speech and expression and rule by whim. The suspension of democracy took place after the subordination of the judiciary and the Constitution to the desire of the Prime Minister.

About three years ago, the CBI judge presiding over the Sohrabuddin fake encounter case, for which BJP President Amit Shah was convicted, was found dead in suspicious circumstances. Last year, his sister revealed that he had been offered a bribe of Rs.100 crore by Mohit Shah, the Chief Justice of the Bombay High Court, for a “favourable decision” (The Caravan), sometime before his death. The new CBI judge appointed to the case acquitted Amit Shah before the case started. Several loopholes in CBI Judge Loya’s death from ‘cardiac arrest’ have been reported—his mobile data was wiped off, his clothes had bloodstains not corroborating the narrative of cardiac arrest, there were discrepancies in the post-mortem report and so on.

11 other people in the charge-sheet were also subsequently acquitted. The Supreme Court has called the CBI a ‘caged parrot’ before, a mere pet echoing the words of the party in power. Any demand for independent investigation undertaken by the CBI is seen with scepticism, because there is always a danger of manipulating reports. This label was probably assigned to this ‘premier’ institution because of the pattern of its actions, with many of its investigations needing further investigation to determine the veracity of its claims.

This week, four judges of the Supreme Court wrote a letter addressing the Chief Justice, and commenting on the degradation meted out to the institution of the judiciary. Justice Chelameswar explained the reason for their press conference, “Sometimes, the administration of the Supreme Court is not in order. There are many things less than desirable that have happened in the last few months… As senior-most justices of the court, we have a responsibility to the nation and institution. We tried to persuade the CJI that some things are not in order and he needs to take remedial measures.

Unfortunately, our efforts failed. We all believe that the SC must maintain its equanimity. Democracy will not survive without a free judiciary,” emphasising the fear taking root in an institution living the illusion of independence. They addressed the bias inherent in the appointment of judges. While the courage to speak out is commendable in their case, if they will not expose the inner functioning of their body, not only will the judiciary slowly lose accountability like the CBI, but it will also lose trust.

If the premier decision-making body of the country loses its ability to dispense justice, the so-called democratic set-up is reduced to a farce. The death of Judge Loya when he expressed interest in exploring the entire 10,000 page charge-sheet against Shah, has also pushed the idea that a particular ideological violence being unleashed on the nation in other areas has also seeped into the judiciary.

But, if the judges don’t speak out, who will?

-Contributed by Tript

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