The Chief Justice of India refused to meet the Leader of the Opposition on the 12th of this month and hear his grievances, even though one of his predecessors had no problems about inviting the Prime Minister to his residence for a pooja and a cosy tete-e-tete. This snub was both unfortunate and expected.
Unfortunate, because the CJI is not another divine, non-biological being but a part of the system. This system has become dysfunctional, and the LOP simply wanted to convey this to him. The LOP has as much of a constitutional status as a CJI, even though their roles differ. The CJI would not have compromised his much vaunted, but increasingly doubted, political "neutrality" if he had had the courtesy to meet the LOP, listen to his grievances, perhaps accept a memorandum or two, share a cup of tea, and bid him "Auf Wiedersehen" or "We shall meet at Phillipi." No one expected him to act on the grievances, of course, since many of them pertain to his own court, but at least the window-dressing of democratic accessibility and an "independent" judiciary would have been preserved. It might even have restored some of the trust that large sections of the public no longer have in the Court.
But, as I said, the refusal was expected, for the simple reason that the Supreme Court no longer has the moral authority and people's trust to act as an honest broker (or arbiter) between the government and the Opposition/ public. It had started shedding this constitutional teflon long before Justice Suryakant's tenure, beginning with its orders on Rafale, Pegasus, Hindenberg, Ram Mandir, Electoral bonds, Umar Khalid, to name just a few. But the molting has become more pronounced over the last year or so. There is a perception that it has been consistently siding with the executive and Election Commission in spite of scientific evidence, ground realities and public demands: it gave a clean chit to the use of EVMs, made a statistical mockery of the VVPAT verification, ignored the selective use of the Model Code of Conduct in favour of the ruling party, stayed silent at the dubious rejection of nomination papers of opposition candidates (which has now been upgraded to blatant intimidation and arrests), the use of police to "persuade" some voters to stay at home during polling, turned a blind eye to the egregious change/delay/ mismatch in voter counts, looked on as the Election Commission repeatedly approved the breaking and hijacking of opposition parties and governments by the BJP, preferred humiliation to contempt action when the Committee set up by it to select the CEC was thrown into the dustbin by the Modi govt. Each and every mischief of these types was brought to its notice through various petitions (which, the CJI reportedly told Rahul Gandhi, was the kosher way of approaching the Court !), all usually rejected with the contempt they deserved or put on the backburner for a more propitious time. In fact, the Court occasionally even frowned on those who filed these petitions and wasted its time, drawing upon its vast knowledge of zoology to term them cockroaches, flies etc.
The nadir was reached when it did nothing- NOTHING- for over a year to reign in an election commission which had gone rogue with its brutal SIR (Special Intensive Revision) which has consigned 130 million voters to the twilight zone between statelessness and deportation. Worse, it greenlighted the politically partisan exercise in May this year, incentivising the ECI to redouble its efforts to rob the Indian citizen of his fundamental rights. Therefore, now that massive protests have erupted all over the country against SIR and the CEC, the public appears to have lost confidence and trust in the Court, forcing it to march on the Court itself, a first in our history. To put it bluntly and unkindly, it is now seen as a part of the problem, not of the solution.
With all gate-keepers of democracy and justice- the higher judiciary, Parliament, Election Commission, National Human Rights Commission, the media - abdicating their constitutional duties and oaths and becoming irrelevant, India's citizenry has occupied the space that genuinely belongs to it, and which no wannabe despot can take away from it: India's roads, streets, parks, open spaces. Here too, the Supreme Court has not exactly covered itself with glory: it suggested removing Jantar Mantar as a protest venue, initially failed to take any action against against the Delhi police for its excesses on the young protesters, including girls, journalists, advocates, passers-by, students. When public and international outrage finally forced it to issue some directions, these were hedged with so many caveats, conditionalities, escape clauses like "in accordance with law", "provided", and "however," that the police treated them as cosmetic inconveniences. As I write this they continue to beat, detain, sexually manhandle, protect their hired goondas, shut down half the city. Today, a one-stripe constable at Jantar Mantar effectively wields more effective power than the Chief Justice Of India- or so it seems to most citizens.
THIS is the background and context - the total breakdown of law and order, denial of constitutional protections and rights, evisceration of the values of democracy, subversion of institutions, the rampant use of sovereign violence, the defiance of judicial orders - in which the LOP wished to meet the CJI on the 12th of this month. The Supreme Court is the last port of call for the citizens of a failing ship of state, and it does not behove the Chief Justice to wash his hands of the mess by saying "Law and order is not my domain." Yes, in normal circumstances it is not, but when the pretext of law and order is used to suppress the people's voice, to inflict needless violence. to shut down a city, to deprive citizens of their basic rights, to murder democracy itself- where else can the people turn to for legal redress but the Supreme Court? Such a moment is not the time to split hairs about "administrative" and "judicial" side, as the CJI has sought to do; he should look at the "justice" side. For, in the ultimate analysis, if the highest court in the land cannot assure justice for the citizens, it becomes another legal fiction and might as well be wound up. The Constitution has given the judges of the higher judiciary extraordinary powers, privileges and protection, to safeguard the rights of the people, not the government of the day. If this authority is instead used to allow authoritarian over-reach, then this is a breach of the trust the people have reposed in the Court, a violation of a sovereign contract, and they- We The People- have the inherent right to enforce accountability and even demand resignations. That moment in time has arrived.
The Hon'ble Chief Justice should have given the Leader of the Opposition an appointment. It was the latter's right and the former's duty. It was also, perhaps, a democratic nation's last call to remain one, in a peaceful manner.
It's still not too late to do the right thing, Your Lordship. Otherwise, to take a phrase from the Bible, On your own head be it.
The supreme court's capitulation is very well summed up
ReplyDeleteExcellent. Well written & to the point. I admire how well & concisely it has all been put together. Mr. Shukla we are so happy that you are there writing it all so that the people get to know.
ReplyDeleteMS Jagtiani, posterity must know how our institutions collapsed like a house of cards from greed and hubris.
ReplyDeleteExcellent & comprehensive 360° truth.
ReplyDeleteAnd absolutely truthful.
Thank you Avay.
To the CJI and others who used and continue to use the judiciary as an opportunity to pay obeisance to and already illegitimate Government, I say this: Fear the judge ABOVE and mend your ways now when you are still on the seat you occupy.
To call or treat supreme court as a honest broker is something uncalled for - our constitution does not say so anywhere. Supreme Court is another important constitutional authority - the epitome of judiciary which is the third important wing of democracy. It can control or even bring to senses any malevolent executive and legislatures. On the other side, the legislatures also have ample powers to control or bring to senses any misguided judiciary. It is true SC has made mistakes in its decisions on SIR when it gave almost unlimited powers to the Election Commission. Instead it should have insisted on the need for an all-embracing committee to monitor the Election Commission too. Further the present constitutional position requiring impeachment process for the Chief Election Commissioner is to be changed and the ball is in the Parliament's court for that. But the Supreme Court could have made that clear and advised the parliament to act judiciously and with enough commonsense to tackle these serious questions instead of acquiescing in its extraordinary powers.
ReplyDeleteAs I have always commented - today, ours is NOT the country we were born in.
ReplyDeleteEvery single institution having been eroded, when the rot spreads into the courts (all the way to the top) and the armed forces, as it HAS done, the nation is done for.
What a crying shame, what we were and what we have become!
Transformed and mutated from the lovely inclusive nation we used to be to the now ugly mess we are in where everyone simply hates everyone else.
Oh yes - we most certainly HAVE lost our way 'into the dreary desert sands of dead habit'.
Leaves me asking that will we ever awake 'into that heaven of freedom' which a VERY wise man dreamt of?
The idea behind the march to the CJI was precisely to draw everything that Avay Shukla writes about, to raise the very sentiment stirred inside him and inside as many others as possible.
ReplyDeleteFor once the INDIA bloc played its cards with finesse that trapped the ruling dispensation as well as the judiciary, while lifting its own stock to a high.
The matter of SIR was indeed sub judice, and the legal position of the judges prohibited them from discussing it with the involved parties on any forum besides the courtrooms. This was known to the political leadership of the INDIA bloc, and they were certain that any audience, if granted by the CJI in the above matter, would amount to a judicial impropriety. The right path, which was also followed quietly and concurrently by the legal eagles of the Congress, was to file a writ in the court.
So why this march to the CJI?
Specifically to draw eyeballs upon the event. The intent was to sensationalise the inescapable denial of audience by the CJI, so that the Opposition could lament publicly about the doors of Justice remaining closed to the people. Staid, writ petitions filed quietly in a court are news-dry. They do not elicit interest from the public who understands little of judicial jargon, let alone its machinery. The media and Press too, banish such news to unobtrusive corners of their presentations. What conveys is action on the streets – the physical resistance to opposition leaders, their condemnation by the ruling regime, the packing of the protesters into police vans, the sound bytes of disparagement from the leaders as they knock on closed doors.
In short, pandemonium grabs attention far more than procedure.
It was impossible for the CJI to grant an audience to the Opposition that ostensibly wanted to hand the drafted writ to him. They capitalised on this inability and went for the jugular of the Executive and Judiciary, effecting the cleanest cuts by the optics.
From the Judiciary’s side, it was the only move, besides being compulsory, to close its doors than grant even a minute to the political leaders. In the past, ex-CJI Chandrachud and his predecessors have raised considerable concern by interacting with the ruling regime and its top leaders on occasions and circumstances ill-suited to be seen together. The rejection gave the CJI the muscle to growl a day later that his office would not be brow-beaten by anybody!
All in all a victory for the Opposition and face-saving for the Judiciary. The only one licking its wounds was the government, which was seen nursing its bruises by its malapropos snickering of insufficient stamp duty on the filed e-writ. As also through the Rajnath comments of yesterday about anarchy.