Latest revelations by four SC judges : Severe systematic attack upon independence and impartiality of the judiciary

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Stunning the government as well as legal and political circles of the country, in an unprecedented Press Conference in Delhi held on 12 January, four top  and senior-most Supreme Court judges ‘took on’ none other than the Chief Justice of India Dipak Misra himself , for various “undesirable” things undermining the administration of justice.   They accused the CJI of ‘not strictly adhering to rules in assigning cases to appropriate Benches’ of the Court, rather assigning cases of “far reaching consequences for the nation” “selectively” to junior “benches of preference”. The accusation was grave enough to even send shock-waves in common people across the country. The latter stood aghast at the thought that  if the charges were true, it would create, as the four judges themselves said, “doubt” about the integrity of the top court of the country, questioning the future of deliverance of justice.

 

Aggrieved  judges raise concern about future of democracy

The four judges also said that they had raised their concerns about various serious issues a couple of months ago in a letter to the CJI, but they “failed in convincing the CJI” to take “remedial steps to protect this institution”. They released the unanswered letter also in the Press Conference  and warned they were “convinced that unless this institution is protected … democracy will not survive in the country… the hallmark of democracy is independent and impartial judges”.  Reportedly, when asked specifically if they were upset over the assignment of the case of the alleged  mysterious death of the special CBI Judge Brijgopal Harkishan Loya on 1 December 2014, who had been hearing the sensitive Sohrabuddin Sheikh encounter case which initially involved the BJP president Amit Shah as a prime  accused,  their answer was “Yes”. The four aggrieved judges submitted that in their said letter to the CJI, they had pointed out their reservation about the CJI’s  refusal to delete the petition filed by the journalist B R Lone seeking probe into Judge Loya’s death, as  the petition was apparently intended to stall hearing of an already submitted petition on the same issue by the Bombay Lawyers’ Association in Bombay High Court. To realize the gravity of  the case, a few more background facts on  Judge  Loya’s death  are relevant here. In the Sohrabuddin  encounter case referred above, Judge B H Loya was appointed to preside over the special CBI court in Mumbai in June 2014, after his predecessor, Judge J T Utpat, was transferred within weeks of reprimanding Amit Shah for seeking repeated exemption from appearing in court.  Initially, Justice Loya’s family members alleged foul play behind his death in Nagpur and reported to the press  that immediately before his death the then Chief Justice of the Bombay High Court, had offered him a bribe of Rs 100 crore in return for a judgment  in favour of Amit Shah. Justice Loya had refused it and continued to hear the case. After Loya’s death, M B Gosavi was appointed to the Sohrabuddin case, who on 30 December 2014 upheld that the CBI had political motives and discharged Amit Shah. (Ref: websites:  caravanmagazine.in; thewire.in; scroll.in — between 21 November and 23 November 2017)  In a Press Conference in Delhi on 14 January 2018, Justice Loya’s son denied any foul play in the death of his father. A former colleague of Justice Loya  seated  by Loya’s son informed that the Press Conference was being held at Amit Shah’s initiative. And the lawyer Amit Nayek accompanying Loya’s son conducted the proceedings, often answering  questions, as it is reported.  Ultimately, the  two-member bench of judges  which had been  hearing  the case and which included  Justice Arun Mishra with a strong BJP link as alleged by a senior advocate, withdrew from the case.  And the two PIL cases for an independent probe into the death Judge  Loya  have now been removed to be heard by a three-judge Bench  headed by the CJI himself.  Be that as it may, the controversy on Justice Loya’s death and by extension Sohrabuddin encounter case, still remains. No wonder, the four judges included it in their  allegation.

The Press Conference assumed more significance since it apparently exposed a rift  between the CJI and the four judges ranked after him, who together formed the Supreme Court’s Collegium which itself is vested with the responsibility of appointing judges for the Apex Court. In fact, one of the charges the aggrieved judges made was that the Collegium which controlled appointment of ‘judges by judges’, is ‘acting like a coterie’, a barter system  prevailing in it.

The Press Conference and allegations raised in it, naturally stirred up a hornets’ nest. The Bar Council of India formed a seven-member team to meet all the judges of the Apex Court and to ‘mediate’ on the crisis. The said four judges denied any crisis and any need for outside intervention. The Supreme Court Bar Association expressed “grave concern” over the rift in the Collegium and called for its dissipation. Media reported some SC judges calling the Press Conference a bad precedence. On the fringe, there were developments noteworthy. TV visuals showed Prime Minister Narendra Modi’s Principal Secretary appearing outside the residence of the CJI at Delhi on 13 January morning. Obviously the principal opposition Congress seized upon the case. The BJP central leadership kept mum, but their party leader Yashwant Sinha backed the four judges and exhorted Union ministers to take a call on the issues raised by them. Lawyer Prashant Bhusan  reiterated his demand for a probe against the CJI for “several acts of serious misconduct”, including his refusal to the CBI to probe into a ‘medical scam’ on bribery in connection with a UP medical college. On the other hand, as report goes, a former judge slammed the ‘mutiny’ of four judges.

 

“Once we used to say that politics is corrupt, bureaucracy is corrupt; now we have to say that judiciary is corrupt  too”: comments a leading judge

In sum and substance, the revelations of the four top  and senior-most Supreme Court judges are not just startling, those  speak of  the confused, if not sorry, state of affairs  even at the highest level of the Indian Judiciary. However, if records are taken as relevant, it must be added that such awful situation is neither unique, nor isolated for this country.

People of the country cannot forget that in the mid-seventies of the last century, Mrs Indira Gandhi, as  the Prime Minister of  Congress (I)-led union government clamped emergency on the country and unhesitatingly  expressed her preference for a ‘committed judiciary’. A few years earlier, Justice A N Ray was appointed as the CJI by the union government   superseding other senior judges. The CJI eventually chose to disregard and overrule the unanimous conclusion advanced by the  high courts of the country and  upheld the right of Indira Gandhi’s Government to imprison political opponents at will and without court hearings.

Then again  with Asok Sen as the Law Minister, the Prime Minister Viswanath Pratap Singh is said to have appointed CJI on the same criterion of political loyalty. Justice Markandey Katju once wrote in his blog that attempts to appoint a tainted judge of Madras High Court  to the SC by the Collegium led by Chief Justice K G Balkrishnan, was virtually through but for Justice Katju’s own intervention. Apart from other charges, Justice Balkrishnan figured once in Kerala scene as the state was rocked by the allegation about his daughter and son-in-law amassing  huge properties  using his  name and office. Shanti Bhusan, a well-known senior advocate  and  the law minister in Morarji Desai-led  government filed an affidavit in 2010 stating that  8 of  the 16 former CJIs were corrupt ( website : barandbench.com; 17 September 2010). Supreme Court judges themselves claimed that the Allahabad High Court had been affected by a total rot where relatives of the judges acted as lawyers, got favourable verdicts and were earning fabulously on the strength of those verdicts. In a later report of the same High Court , the biggest in the country, to the SC bench including one of the four aggrieved judges revealed that appeals have been pending there for over 40 years and that the average disposal time is 12 years, giving a lie to the proverbial concept: Justice delayed is justice denied! In a more recent issue  on the SC Collegium, in May 2014  the Union Ministry of Law and Justice of the BJP-led Union government unilaterally rejected the name of former Solicitor General, Gopal Subramaniam,  from a panel of four names  to be sent  to  the President for approval for the CJI post. This took place when the Union government was planning to  scrap the collegium system and  introduce  the NJAC, purportedly  to bring transparency and end with corruption in the process of appointing judges. Gopal Subramaniam  indicated in a media interview that his role as amicus curie in the Sohrabuddin and Israt Jahan so-called encounter cases might have come in the way of his becoming a judge of the Supreme Court. It has been said  earlier in this write-up  that in the Sohrabuddin case,  Amit Shah was an accused, later relieved.   It may be added here that a second FIR against Amit Shah was also scrapped by a bench of the  Supreme Court.  If it is simply stated  that Justice Sathasivam  was a member of that bench and  was appointed the governor of Kerala after his retirement from the post of CJI, one cannot doubt the obvious connections. Be it denial from the prospect of a higher post or award of  lucrative post –retirement jobs, both tend to raise finger to one and the same process of the government or rather  executive-legislature, intervention  in appointing judges even at the highest level. The deplorable situation  created by these instances prompted Justice Singhvi  to comment: ‘Once we used to say that politics is corrupt, bureaucracy is corrupt; now we have to say that judiciary is corrupt  too’

Thus, whereas it was desirable that judiciary should act as watchdog for democracy, with utmost neutrality upholding deliverance of untarnished true justice as the last word, which even the bourgeoisie emphasized during the initial days of their growth, the reality presents a totally opposite picture. People whose life is plagued with thousand and one instances of insecurity and injustice even in day-to-day life, now find that abnormal delay and huge accumulation of pending cases for want of adequate number of judges really make seeking justice a farce. Moneyed people are given priority or are conveniently pushed back for indefinite time. Fees for lawyers are increasing sky-high. Police, law-professionals and judges are joining hands to form a nexus to cover up truth, instead of revealing it; the objective of judicial processes is thus bluntly obstructed. Benefit ultimately accrues to the moneyed clients.  Poor and middle class people effectively thrown outside the purview of judicial processes are left only to lament that justice is being bought by money. Governments are curtailing, even snatching away the hard-earned fundamental rights of poor and middle class toiling people; the latter cannot even think of availing the scope for justice, of obtaining  any respite from the judiciary.  To these acute problems in the judicial system, are added political intervention. As an order of the day, whichever of the bourgeois parties assume power of the legislature, it tends to use the administration to bring the judiciary into their tight grip. As money factor or intervention comes to dominate, conscientious competent persons shrink back from joining the profession. This in itself is causing a marked fall in the standard of judgment. Added to it, even the judges are constrained from acting according to dictates of their conscience and judgement, and may even risk their life in the process.

The present incident  of the country’s four top judges holding charges against the CJI, should  be judged in the background of such an all-pervasive, hellish state of affairs.  Thoughtful persons  can by no means give a pass to it. They cannot miss, it is the capitalist system which lies at the root of the crisis.  At the same time, surely it would occur to them that once, even in the not so remote past, things had not taken this shape. Then why has the situation taken such a vicious turn: this becomes a burning question.

 

Modern judiciary, one of the three main pillars of  capitalist state, once earned people’s respect 

One cannot overlook the fact that the judiciary generally regarded as an independent and neutral institution, is in reality one of the three main pillars of the bourgeois state, the other two being the legislature and the executive, meaning the administration-police- bureaucracy as also military. As a superstructure of the society at any particular stage of its growth and development, state  is  a system which thrives upon a particular set of concepts of law and order, of principles of governance and justice, of fundamental rights  and such other features of the society  to ultimately serve, in the main,  the interests of the rulers, the ruling class. In the history of human civilization, bourgeois states were formed through what are known as bourgeois democratic revolutions against monarchy and feudalism. The bourgeoisie formed their own national states having given birth to concepts of humanism, democracy, individual freedom, equality of all in the eyes of the laws of land, and thus the concepts of modern judiciary and jurisprudence, among others. To run and protect all these they erected the three pillars or organs of the state: the legislature, the executive and the judiciary; and to keep people abreast of the ongoing developments, the  media or press with freedom of speech and expression was considered the fourth estate of the state. In keeping with the principles of bourgeois democracy, the organs were awarded a relative independence from each other on a principle based upon the theory of ‘separation of power’, each bearing specific responsibilities. The legislature  promulgated the laws, the executive or the bureaucracy  enacted or executed those  laws and the judiciary  was meant to check and safeguard whether the laws promulgated and executed are compatible with the expressed provisions of the Constitution and fully in conformity with the adopted legal frame. So, there were both ‘relative independence’, as also a ‘check and balance system’ to guide the organs. Theory of separation of power was visualized so that power did not get concentrated with any of the wings or the organs and there was no disharmony in and overlapping or interference of their functions. Side by side, upholding democratic humanist values, it was conceived and practised that personalities of eminence and integrity be in charge of deliverance of justice. Judiciary, like other organs, even more than those, assumed a seat of respect and confidence in people’s imagination, which upheld justice and truth.

 

Present decadent capitalism  does not spare judiciary too

However, based on exploitation the capitalism gave birth to monopoly and then imperialism and has now turned into a totally decadent world system. Intense all-out crisis, abject decadence and degeneration pervades all the spheres of life in each and every capitalist country. Total cultural and moral degeneration, absence of values, corruption, fraudulence, and all such filthy vices, once abhorred by the civilized world, have rather become the order of the day. As Karl Marx, the great leader of the proletariat, pointed out as far back as in 1847 in the Communist Manifesto — in the capitalist society money has overwhelmed everything else. Craze for money and with that, craze for power tend to become the driving force in each and every sphere of life, in each and every relationship in a capitalist society. Today, the situation has gone from bad to worse.  As in all other fields, regarding judiciary, too, money and power have made horrible inroads to influence even the judicial processes. Not only it has become the privilege of the moneyed section of the society, it has also brought marked decline in standards, even sharp and sad loss of integrity in those who are supposed to stand for delivering justice and truth to people. As capitalism becomes more decadent, scenes even within judiciary assume most pathetic shape. With growth of monopoly capitalism, the concepts of relative independence of and the theory of separation of power among the legislature, the executive and the judiciary that  evolved  through the bourgeois democratic revolutions, have ceased to exist. Now, the monopolists are cunningly trying to completely wipe out this concept from the social mindset and are carrying on relentless efforts to turn the entire judicial system into a subservient instrument to serve their aggregate interests. In this era of moribund capitalism, the monopolists are hell bent upon concentrating all powers in their hands through the different organs of their state machinery including the government.

Indian capitalism and the Indian capitalist state emerged, grew up and consolidated itself only in the age of decadent capitalism. The newly independent Indian capitalist state emerged with monopoly capitalists taking the rein. Thus since birth, the Indian capitalist state carried in it shadows of crisis and inherent weaknesses. With crisis intensifying the world over, it further affected the Indian capitalist state. Thousand and one vices and maladies marking decadence and degeneration became more rampant and manifest everywhere. Thus people nowadays learn it daily, every moment, from the media, from their own experience that politics and politicians of all major bourgeois  parties, national or regional, have become corrupt and degenerated to their bones. Yet they continue to rule the roost so long as they keep the system running for the ruling monopolist! Forgetting the once-cherished principle of administrative neutrality, the bureaucracy has become tainted with partisanship, corruption, bribery and cut-out money among others. But that does not deter their acting as the pet pillar for the ruling class! Leading monopolists and industrialists themselves  often occupy the headlines for corruption, nepotism, illegal transactions, tax evasion and what not. The huge NPA of the Indian banks accruing  from loans  not refunded,  only speak about the massiveness of corruption of the monopolists and their henchmen, as it is they who are the biggest creditors. But all those end in a show of stage-managed drama.  Even the military is hardly spared with numerous shoddy deals covering huge sums of money, unearthed now and then and hushed up immediately later.

 

Pressure of people’s opinion and struggle, the only deterrent against degeneration

Under such all-pervading dismal and frustrating situation people fall easy victim to the  propaganda on the sanctity and efficacy of the rule of law  carried out cleverly by the monopoly- controlled  media. Allured by this, they  tend to lay their confidence upon the judiciary and as extension upon the state in the ultimate analysis. Yet, an organ of a decadent system, the judiciary can hardly enjoy any exception. As explained above, judiciary too has become fraught with decadence, prevalence of money and political interference and influence destroying neutrality even in the sense the bourgeoisie once sought for, downfall in standard, even in integrity of the persons supposed to deliver justice. This is once more evident from the most recent revelations by the four aggrieved senior-most judges of the Apex Court.

In such a situation it is necessary that people shake off their confusion and inaction and realize that it is the people’s opinion and its pressure that would have to ultimately play its role as a deterrent to degeneration. Powerful people’s movement must be developed across the country on demands of restoring and preserving the independence, neutrality and impartiality of the judiciary, putting a stop to money playing havoc in deliverance of justice and thwarting the efforts for bringing the judiciary into the tight grip of the bourgeois governments from their seat of power. Side by side, demands must be raised to the governments to take measures to ensure that poor and middle class people have the scope for justice at affordable low cost, if necessary with required financial help and assistance. Only strong and united people’s movement can create pressure upon wrong-doers and mischief-mongers in the judiciary making it easier to ensure and   preserve   judicial   neutrality and impartiality, albeit in bourgeois sense, to the maximum extent possible in this decadent capitalist system.

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