It’s not just about the CJI and Judge Loya judgment, or the fight over Justice Joseph, the judiciary has a lot of cleaning up to do .
From the time four judges of the Supreme Court came out to protest against Chief Justice Dipak Misra, to the furore over his dismissal of the petition asking for a probe into Judge Loya’s death, the Congress party’s impeachment motion and now the impasse over the appointment of Justice KM Joseph to the Supreme Court, the pressure on the Chief Justice of India (CJI) is of the sort not seen for decades. Alongside the attack on the CJI’s personal reputation is the attack on him for not being able to take on the government that is supposedly muscling in on the Collegium’s powers. Nor is it just the Opposition parties or colleagues on the Bench that are goading the CJI to fight, former CJIs have also joined issue. Many former judges/lawyers spoke on the issue at the launch of former journalist Arun Shourie’s latest book on the judiciary—the title comes from his wife, Anita, getting bail for avoiding summons that were never ever served, in a connection with a house she had never built on a plot of land she did not own!
While most governments would like to control the judiciary, not too many people acknowledge the fact that, after Indira Gandhi’s attempt to emasculate the judiciary, the judiciary swung the pendulum over the course of three judgments culminating in the Third Judges case in 1998. After this, the judiciary became a law unto itself, with complete opacity on rules governing promoting and punishing judges. Indeed, the letter written by the four judges also talked of the need to revisit the process of appointment of judges and to set up a mechanism for corrective measures other than impeachment. When the SC rejected the government’s move to restore the balance through the National Judicial Appointments Commission (NJAC), Justice J Chelameswar—one of the four judges who came out against CJI Misra—wrote a dissenting judgment on this and, being a long-time critic of the collegium, even stopped attending its meetings for a long time.
Most reported the scathing comments at the Shourie event and while former Delhi High Court Chief Justice AP Shah criticised the Judge Loya judgment, he also highlighted the judiciary’s internal issues. Even when special courts were set up for the Bhopal tragedy and the Bombay blasts, he said, they took 10-15 years to complete; after the bribery charge against Justice Nirmal Yadav, she was only transferred to another court and her case is still pending after a decade; there was no proper investigation of the charges made, among others, against judges including the then CJI by former Arunachal Pradesh chief minister Kalikho Pul in his suicide note … the Judge Loya case, as Justice Shah said, was a trigger for the press event, but “what the judges allege has happened several times in the past”.
The CJI, or his successor, is within his rights to take on the government, but the judiciary needs to set its house in order more urgently. This includes not wasting time on frivolous cases—playing the national anthem in cinema halls, deciding whether watching porn or making parochial jokes should be banned etc—and agreeing on a procedure to ensure judges are appointed fairly and held accountable; the blame for this cannot only be laid at the government’s door. While the SC blames government for delaying appointments of over 400 judges in SC and various high courts, the government points to a staggering 4,000 vacancies in the subordinate judiciary whose appointments are made by the high court in most states. The judiciary is at a crossroads, and not just because of 3.4 crore pending cases, but just attacking the government is of no use.