If the Government is able to meddle in judicial independence and influence judiciary in its favour, the country’s democracy is in danger. We cannot forget that during the Emergency, the judiciary’s loyalty to the Indira Gandhi regime was one of the the most serious symptoms of the crisis of democracy. Indira Gandhi had superseded three senior-most judges in 1973 to appoint a CJI who was loyal to her regime. During the Emergency. These three judges, who had delivered the majority judgement in the historic Kesavananda Bharati case, ruling that the parliament cannot amend the basic structure of the Constitution, resigned in protest following the supersession. During the Emergency, the majority of judges in a five-judge Constitution Bench gave the infamous ruling in the A.D.M. Jabalpur v Shivkant Shukla case that the fundamental rights could be suspended during the Emergency. Justice HR Khanna, the lone dissenting voice on the Bench, resigned in 1977 after being superseded for the post of CJI. These dissenting judges who resigned are now viewed as heroes who defended the Constitution instead of genuflecting to power. Today, the four judges who alerted the people about the unspoken Emergency, deserve the same respect and applause that their dissenting predecessors command.
Apologists of the Modi government say that the issues raised by the four judges are an ‘internal matter’ and a ‘family dispute’ which should not have been aired publicly and can be resolved mutually over a cup of tea. Nothing could be further from the truth. If the Government and ruling party are able to secure potentially pliant benches in courts that are likely to deliver a favourable verdict, it is a clear and present danger for democracy – and every citizen has a right to know about such a danger. Transparent norms and rules must be applied in the CJI’s exercise of his powers as master of the roster.
The case that reportedly was the final trigger for the judges’ historic press conference was the petition regarding the suspicious death of Judge Loya. The questions around Judge Loya’s death also raise the possibility of bench fixing. The Supreme Court had ordered that the Sohrabuddin murder case be heard in Maharashtra, not Gujarat, and that it be heard from start to finish by the same judge. However, Judge JT Utpat who was hearing the case was abruptly transferred from the CBI Court. Was his transfer a case of bench fixing? Judge Loya replaced him, and according to his sister, he was approached by the then Chief Justice of the Bombay High Court with a bribe to give a judgement that would favour BJP President Amit Shah. Was his suspicious death, soon after he reportedly refused the bribe, also a sinister way of bench fixing – that is, of paving the way for a judge who was more likely to give a favourable judgement to a leader of the ruling party? Why was such a sensitive case given by the CJI to a junior judge with a reputation of favouring the BJP Government? The fact that the CJI eventually had to withdraw the Loya case from the said junior judge’s court is welcome; it is hoped that the case will be reassigned to a more credible Bench. The press conference held by Loya’s young son asking the media and activists to leave his family alone also raises questions about who brought pressure on Loya’s family to silence the questions that Loya’s own sister and father were the first to raise. Moreover, the fact remains that if a crime is suspected, it is a crime against society – and it is not for the family of any alleged victim to decide whether or not a crime is to be investigated.
Facts show that it is not just the handling of the Loya case for which the CJI has to answer. Transcripts of tapped phone conversations recorded by the CBI reveal accused persons in the Medical College bribery case to be referring to bribes offered to judges in Allahabad and Delhi. The CJI himself headed all the benches that gave favourable judgements to the Glocal Medical College and Super Speciality Hospital and Research Centre run by the Prasad Education Trust. A five-judge bench headed by the CJI not only dismissed a petition seeking that he recuse himself from hearing cases relating to this scam, but nullified a decision given by Justice J. Chelameswar and S. Abdul Nazeer to set up a constitutional bench of the court’s five senior-most judges to hear a petition about judicial corruption that involved the Medical College bribery scam. The CJI also denied permission to the CBI to file an FIR against Justice Narayan Shukla of the Allahabad High Court, in spite of evidence in the CBI’s possession pointing to the judge’s having accepted a bribe from the medical college.
Several other crucial cases – which pertain to the fundamental rights of India’s people and are also of great interest and importance to the political fortunes of the ruling party – are pending in the Supreme Court, including the Aadhaar case and the Ayodhya case. It is most important that the concerns raised by the four SC judges be addressed, to ensure that the judicial process be seen to be transparent, unbiased, and just.
Till now, there is little sign on the CJI’s part of any step taken to reassure the country that his senior-most colleagues’ concerns are being addressed. In fact, the four dissenting judges have been excluded from the Constitution Bench formed by the CJI to examine several pending cases including the Aadhaar case. The questions relating to Judge Loya’s death also remain. It is imperative that an impartial probe be ordered into Judge Loya’s death, and also that transparent norms be adopted for the management of the Supreme Court roster. These questions do not pertain merely to the Chief Justice of India – they are questions about the intentions and actions of the Modi Government. It is apparent that in every institution in India – Universities, Courts, investigative agencies, RBI, Election Commission, media – there is a struggle between those upholding the Constitution and those who instead subvert the Constitution to serve the Modi Government. The people of India must stand firm with the four dissenting judges as well as with all those who are defending the Constitutional and democratic norms in every arena.