On 12th of January, in an unprecedented move, four senior-most justices of the Supreme Court held a press conference to talk about the issues plaguing the apex court. This was for the first time in the history of Supreme Court that senior judges appeared for a public pronouncement of this kind. Indicating various disparities in the way the Supreme Court is working, Justices Chelameswar, Gogoi, Joseph and Lokur said “Democracy will not survive without a free judiciary” and that they “Don’t want wise men saying 20 years from now that we sold our souls”. They questioned the selective assignment of cases by the Chief Justice of India (CJI) Mishra to the Benches “of his preference”, without any rationale for such assignments. They also mentioned that they tried to persuade the CJI but failed which forced them to bring the matter to the people. As hinted by Justice Gogoi, the listing of the Loya Case before an inappropriate Bench triggered the Press Meet. Mr. Loya, the District Judge at Mumbai who was appointed as a special CBI judge, tried the Sohrabuddin Encounter Case. He died in mysterious circumstances in Nagpur when he went to attend a wedding ceremony. Mr. Amit Shah, the President of the BJP, is one of the main accused in the said case.
However, the Loya’s case is only the tip of an iceberg in regard to the alleged impropriety of the judiciary. Last few years, on one hand, we have seen unprecedented jailing and order for psychiatry test of senior sitting high court Justice CS Karnan in accusation of contempt after sending a letter to the PM, Narendra Modi, urging action against some judges. And on the other hand Kalikho, CM of Arunachal Pradesh committed suicide after his government was voted out; he had alleged some senior Judges for asking a huge amount of money, the investigation against whom never took place. Moreover, there is long list of cases such as Ishrat Jahan case, Best Bakery case (2002 Gujarat riots), Green Peace activist Priya Pillai’s lookout notice, etc., where after delivering a proper trial which went against the wishes of the current regime, the judges were penalized with wrongful transfers or demotions.
Regarding the appointment of judges, in that very case where unconstitutionality of NJAC (National Judicial Appointment Commission) was established, Chelameshwar opined that neither the NJAC nor the collegium (which has been accused of doing favoritism to certain families and creating a judicial clan) is the way out. Under NJAC, the appointment of judges can be controlled by the Modi government and independence of the judiciary will be at stake. It should not be forgotten that it was first during the pre-emergency era when Congress government led by Indira Gandhi set an example of directly controlling the judiciary. The conflict with the then government forced three senior judges to resign and then during emergency Justice Khanna had to resign as an aftermath of the judgment in the Habeas Corpus case.
It is true that the courts (epitome of “true democracy”) are still inaccessible to large sections of poor and downtrodden people in our country (National Crime Record Bureau data on prison statistics say that 53% of the prison inmates are from Dalits, Adivasis, and minorities), while the Vijay Mallyas, Ambanis, and Adanis are able to bend the law to their interests. While NEET case is a recent example of how the courts function in favor of privatization policies, the Maruti Manesar plant case shows the anti-working class bias of the present judiciary.
The initiative of the four justices is no doubt applaudable. Simultaneously, the people should have the right to keep vigil on the proper functioning of the justice system. It should be kept in mind that any lack of accountability or impropriety in the judiciary manifests the problems in the larger structure of the “democracy” and therefore, while fighting for a true democracy and justice, there lies a question whether this crisis can ever resolve without a fundamental change in the power structure of our society.