Thursday, 30 April 2015


Our superior court judges are very fond of quoting that old chestnut about nobody being above the law, but it now appears that they have exempted themselves from this adage. The refusal of the Chief Justice of India( CJI ) to attend the meetings of the newly constituted National Judicial Appointments commission ( NJAC ) admits of no other explanation.
The NJAC has come into existence with the passing of legislation by the Parliament, and is therefore now the law of the land, to be observed and respected by all citizens and institutions, including judges of the Supreme Court. It has been challenged in the Supreme Court but the relevant bench has not stayed its operation; in fact. it has specifically refrained from doing so in view of the substantial number of vacancies in the higher courts and the need to regularise the appointments of a large number of Additional Judges in these courts.
The CJI is the highest legal luminary in the country and he must surely be aware that legal propriety and sense of fair play demands that one's personal views should never be allowed to come in the way of judicial adjudication of an issue. He may not agree with what the vast majority of people in this country, and Parliament certainly, feel--that justice is too important a matter to be left to judges alone, just as war cannot be left to generals alone; that the earlier repugnant system of judges appointing themselves smacked too much of the manner in which the BCCI made its own appointments( which the Supreme Court itself rightly objected to!); that a wider consultation with other stake-holders was necessary to make choices; that the country had a right to know why a particular individual was deemed fit to don the robes while another was not. Chief Justice Dattu may not agree with this, just as I don't agree with homosexuality being a criminal act or with the court's decision granting bail to Jayalalitha and not to the Talwars, even though they are similarly placed. But I defer to the decisions because they are the law of the land, and I am a citizen of this country. What makes the CJI different from me in this respect?- does he enjoy a higher grade of citizenship or is he conferred with some special element of " lese majesty" that is denied to us lesser mortals?
Over the last couple of years the Supreme Court has stained its escutcheon somewhat, notwithstanding some outstanding judgements upholding the values of democracy. Even if we overlook regressive judgements refusing to decriminalise homosexuality or euthanasia, it has not exactly covered itself with glory in refusing to give information under RTI on a few occasions, in its apparent reluctance to take action against some of its own fraternity accused of sexual molestation, by a former Chief Justice of India accepting a cushy sinecurial post of Governor, by charges being levelled against another CJI who now heads a national Commission, and the most recent one of another Judge refusing to participate in a conference of Judges on religious grounds. Regardless of the merits of these cases, the reality is that the credibility of an institution does not depend on its bricks and mortar, but on the perception of the people, and this perception has taken a beating. The Court is seen as being unaccountable, opaque, elitist- a juridical Gymkhana Club, as it were- and marching to a tune different from what it expects the other organs of the state to march to. The latest show of pique by Chief Justice Dattu can only add to this perception.
Surely the CJI, of all persons, should realise the importance of observing constitutional discipline and the rule of law. Surely he must be aware of the 61300 cases pending in the Supreme Court itself and the 4.50 million cases gathering dust in the 24 High Courts ? Surely he is not unacquainted with the fact that a major reason for this horrendous pendency is the shocking number of vacancies in these courts- out of 906 sanctioned posts of judges in the High Courts, as many as 251- almost 30%- are lying vacant ! In UP 75 posts out of 160 are vacant, in Andhra Pradesh the figure is 20 out of 49, in Karnataka 17 out of 50. Surely, by refusing to operationalise the NJAC Mr. Dattu can only exacerbate this position as no further appointments can take place unless he cooperates- nay, complies with- the new law.
It has been suggested by some legal experts that the Constitution Bench, which is hearing the challenge to the NJAC, should resolve the impasse in one of three ways- extend the terms of the Additional judges by an interim order, stay the new law and thus provide a legal excuse to the CJI for not attending the NJAC meetings, and finally, revive the old collegium system temporarily till the case is decided.
I totally disagree with these alibis for what is an act of constitutional impropriety. It should not be the function of the Constitutional Bench to bail out the CJI from the wholly questionable corner he has painted himself into. The new law can certainly be stayed, but to revive the collegium system in the interim would be illegal and unconstitutional-it would amount to negating the will of Parliament without striking down the NJAC on merits. This is  a red line the Court should not cross, for it would create a constitutional crisis this country can ill afford. Is the personal opinion of one man so important that the country should be pushed into chaos?
There is only one solution to this imbroglio- the Supreme Court should ORDER the Chief Justice of India to attend the meetings of the NJAC, and if his conscience will not permit him to do so, then he should graciously step down. Be you ever so high, your lordships, the Constitution is above you. 

Monday, 6 April 2015


The canker has reached the Supreme Court.

The ill-advised letter and comments of Justice Kurien Joseph on the Judges Meeting on Good Friday has exposed the pernicious spread of the religious paranoia that appears to have gripped the country in the last few months. We had fondly hoped that at least our higher courts would be immune to the competitive religious frenzy that is increasingly holding all governance hostage to sectarian demands, but even this illusion has been shattered.

The tragedy is not the loss of objectivity or any rational thinking by Justice Kurien, of ignoring the fact that in the past also such meetings had been held on a Good Friday, Valmiki's birthday and Independence Day, or that utilising a long weekend for such a conference saved precious working days for disposal of the 30 million odd cases pending in the system, or that it was not even incumbent for Justice Kurien to have attended the meeting. No, the tragedy lies elsewhere and it has many facets.

As a devout Christian he had every right to feel that he would rather spend the day celebrating the festival with his family, rather than at a meeting which, by the admission of a retired Judge of the J+K High Court, has achieved nothing in the past. The correct course of action in such a situation would have been for him to have privately and discretely conveyed this to the Chief Justice, excuse himself from the conclave, and that would have been the end of the matter. By writing a letter to the Prime Minister he has instead made the affair public and raised a question mark over his real intentions. The Catholic Bishops' Conference had already started stirring the pot of controversy in TV studios and by his action Justice Kurien has simply added a few more newts' eggs and bats' wings to the pot, making this lethal potion even more potent.

Religious bigotry and counter-bigotry have been in the air like a pestilent cloud over the last one year. All institutions in the country- constitutional, political, administrative or theological- have failed to counter it and the Supreme Court was seen as the last bastion of sanity and non-partisanship, a place where religious identities would be subserved to the concept of a truly secular state. No longer. That belief has been dented: if even judges of this Court can indulge in contentious proclamations of their faith, and compete with the fringe elements of other religions, then where does our Constitution seek refuge?

Justice Kurien has done great dis-service to the Supreme Court. He has created fault lines in its edifice based, not on interpretation of the law( which is a good thing), but on religious one-upmanship. He has, by implication, cast doubts on the secular credentials of the Court itself and possibly given a handle to its critics in future to question its impartiality on judgements that have a bearing on contentious religious matters. By escalating the matter to the level of the Prime Minister he has shown a lack of confidence in his own peers and perhaps prised open the door for further intervention by the political executive when it suits them. 

He has also done a dis-service to his faith. Just when all right-thinking people were beginning to sympathise with the Christian community for random actions perpetrated against them, his protest has blurred the line that divides rational and bigoted believers, of any faith. Modern religions do not need Knight Templers or Crusaders, they need rational and moderate adherents; public proclamations of faith, especially of a competitive kind, are abhorrent to any civilised society. Till now we were critical of certain Hindu and Muslim organisations for their proselytsing stridency: with this controversy the Christian community will be perceived by many to have moved closer to the former. It shall be more difficult now to retain a balance between the rational and the irrational.

This is a critical phase for our country, a time when we need to strengthen the forces that are striving to place the public good above theological dogmas, the secular above the sectarian, the temporal above the religious. We cannot survive as one nation in any other way. At a time like this we do not need controversies of the kind created by Justice Kurien, regardless of how genuine his feelings were. We need wise men. We also need to remember that wisdom is divided into two parts:  (a) having a great deal to say,  and (b) not saying it.