Judges Press Conference: We Indians are a cynical lot

Bar & Bench January 14 2018

Harpreet Singh Giani

On Friday, Justices Chelameswar, Gogoi, Lokur and Joseph came out and addressed us directly. Breaking a self-imposed convention, they spoke in one voice about their concern at the unholy shenanigans going on in the Supreme Court.

It falls now to us, to consider not only their words, but also their motive in appealing to us directly. They have told us that they have failed to clean out the Aegean Stables and so now they have placed their faith in us directly.

And we are failing them.

Justice Chelameswar has had to restrain himself on many occasions. For if he were to speak out, he would conveniently be accused of trying to get rid of Chief Justice Dipak Mishra, and scheming to occupy that office. Few would accept any amount of protestations that he was acting in the best interest of the nation, the judiciary or even ourselves. That is how cynical we have become.

But Justice Gogoi’s active participation yesterday ought to give us pause for thought. In normal course and going by an (almost) unbroken convention, Justice Gogoi would succeed Dipak Mishra as the next Chief Justice of India. For him to bide his time and to be silent would virtually assure his ascendancy to the top office.

Why then, did Justice Gogoi risk his career and his years of unblemished service to the nation, to speak out? Surely he cannot be accused of any ulterior motive about his actions or timing.

The shouting brigade on television has already decided that the Chelameswar-Four have a hidden agenda. They are unable to spell out that agenda of course – possibly because their spin-doctors and sponsors have not been able to recover and regroup after this surgical strike.

But already, they are taking pot-shots at the judges. Who visited whom? Which journalist was present at a press conference and why?

Innuendo is no substitute for fact though.

Despite Gobbels’ and Chemical Ali’s best efforts, they proved a mere transient distraction and could do little to prevent the truth from emerging.

The truth of the matter is that none of the Fantastic Four is a hot-headed politician. None of them have any political affiliation and none of them are ignorant or oblivious to the consequences of their action. If anything, they over-estimate the ability of us Indians to think rationally or to protest against manifest corruption.

The truth of the matter is that the Chief Justice of India has arrogated into his hands personally, all judicial, executive and political power in this country. He has cobbled together an unholy network of authority based on selective reading of suspect precedents, and usurped the authority of the parliament to legislate, the authority of the law enforcement agencies to function, and the ability of the executive to govern.

Justice Chelameswar’s decision to set up a constitution bench of the top five judges of the country to go into allegations of corruption which cast their shadow on the CJI was possibly flawed – but only because he included the CJI in the bench that he ordered to be set up. He ought not to have included the accused in the panel of inquisitors.

But the CJI’s panicked reaction in setting up a seven judges bench to overrule this judgement was unlawful. No constitutional provision, statute or convention gives the CJI or any other judge of the Supreme Court the right to nullify an order made by another judge or bench of the Court.

This was judicial misconduct.

The press which has over the years succumbed to the ridiculous threat of Contempt proceedings also did not tell the people that two out of the seven hand-picked judges refused to participate in this farcical circus. They told the CJI that they would not be complicit in his self-serving self-preserving charade. But the press was too scared to report this.

The Chief Justice was not protecting his questionable and extra-judicial authority to act as Master of the Roster. He was protecting his own skin and was hand-picking a bench that would assuredly exonerate him, and effectively prevent and pre-empt an inquiry into the underlying grievances and accusations of malfeasance.

The Fantastic-Four have thrown down the gauntlet for all Indians. Having given their life to the cause of justice, they have told us in so many words that the situation is beyond their control.

They have shown us only one letter so far, which they had written to the CJI. We can’t be sure that there aren’t many other letters addressed to the CJI – by them and others - where he has been called out.

Surely there must have been something more than a desire to see his name on yet one more official file, which motivated Justice Chelameswar to demand that the deliberations of the Collegium be recorded.

Surely there must have been something more than a desire to get a few rupees in fees, which motivated Dushyant Dave to demand in open court that the Supreme Court not deny Kalikho Pul’s widow and sons legitimate demand to find out whether Pul’s specific allegations of corruption against Chief Justice Khehar, Chief Justice Dipak Mishra and President Pranab Mukherjee were true or not.

Surely Prashant Bhushan’s incessant demands for answers in dark matters can’t be motivated only by a desire to make headlines.

The Fantastic-Four’s press conference is positive evidence that something is very very wrong. So wrong in fact, that even the highest judges of this country are powerless to fix things by a judicial order.

This is not an “internal matter” or “difference of opinion” of, or in the Supreme Court as the TV shouting heads would have us believe. This is a fundamental issue of judicial corruption, of judicial tyranny, and of the very safety of our judicial order.

Neither the Attorney General, nor the government’s silver-tongued spokespersons can simply wish away this momentous revelation.

It is for each and every citizen of this country, and for each and every parliamentarian to rise above politicking and to come together to demand answers.

Harpreet Singh Giani is an Advocate (in India and Dubai DIFC) and a Barrister (England & Wales). He based out of London but practices law in all three jurisdictions.

He is a student of jurisprudence and judicial ethics and commentates frequently on issues of judicial probity (and lack of it).

Disclaimer: The views expressed in this article are of the author and Bar & Bench does not necessarily hold the same views. Bar & Bench does not take responsibility for the same.