Just a few months after entry and contagion of Wuhan virus across the country, ‘Holy’ corridors of ‘Indian Judiciary’ were agog in complete harmony with so-called Lutyenites, Secular-Ratnas, Liberal-Jewels and Leftist-Kohinoors thoroughly engaged in raising decibel levels over every minor, major lapse in meeting the crisis. While these traitors of various hues lapped up the golden opportunity to defame the nation internationally, scare-mongering all over the nation creating shortages, Judiciary sensed a golden opportunity to burnish their tainted image battered by their long spell of non-justifiable Judicial-Indulgence viz. height of Dahi-Handi, Jallikattu, Sabarimala, legalising extra-marital promiscuity, awarding alternate site to Muslims for Masjid in lieu of Shri Ram Janmabhumi in Ayodhya, declining special courts to prosecute corrupt politicians, murder charge against Election Commission etc. Even Judicial-Inactions for instance in the case of 50 years long human-slaughter in West Bengal had been more pernicious than their Judicial-Profligacies as we travel through following narratives in this article. ‘Lords’ and ‘Ladies’ of Higher Judiciary went to the extent of allocating oxygen cylinders to hospitals as if the Prime Minister in office, a world-class statesman with an unbeatable track-record of performance does not know how to allocate oxygen concentrators and only our ‘Lords’ and ‘Ladies’ have all the cerebrum available in the country. It is culmination of a Judicial-Malaise whose root-cause was sowed in 1947 itself.
Stalemate over Memorandum Of Procedure for Judicial appointments continues unabated with higher Judiciary, perforated and riddled with Stay Orders, Adjournments, dubious appointments, dubious transfers and Judicial Tears flowing down in public. This is the proceed of rejection of the Constitution Amendment Bill for National Judicial Appointments Commission passed by the Parliament unanimously. While Government may be complimented for standing resolutely firm before repeated onslaughts of Judicial-Arrogance, Judicial-Apprehension of erosion of Judicial-Independence by them is entirely unjustified. It is rather mystifying as to how Justices turn so arrogant while rising from middle-Judiciary of High Courts to the elite upper class-Judiciary of the Supreme Court. And it is reflected eloquently well in their judgements, pronouncements, adjournments and comments towards a well-meaning Government engaged day and night in ameliorating fortunes of the country after receiving a historic mandate led by a Prime Minister consuming himself from all ends for the sake of nation. One may wonder whether this Supreme-Arrogance has any jurisdiction over the country or the Supreme-Snobbery any jurisprudence at all !! Retired Justice Ruma Pal of Supreme Court was constrained to comment, “Judges were afflicted with multitude of sins but culled out seven deadly ones – brushing under the carpet, hypocrisy, secrecy, plagiarism and prolixity, intellectual arrogance or dishonesty, judicial indiscipline and nepotism.” Another legal luminary Arun Jaitley, ex-Union Finance Minister, had to say, “There are two types of Judges. One who know the law and the other, Law Minister.” !! It is all an unfortunate state of affairs in our ‘Buckingham Palace’ Judiciary, legacy inherited from the British-Christian colonial era.
Root-Cause Analysis of the entire Judicial scenario, howsoever accurate or otherwise, points to the main cause of Judiciary being closed to public criticism, shielded by the insurmountable, much criticised Law of Contempt of Court. Owing to that, Judiciary is deprived of so many creative, constructive suggestions, satirical albeit eye-opening comments from the naïve and hard-hitting dissection wrought by ferocious journalists and commentators. To buttress the point, it may be mentioned, when RBI Governor R. Rajan was under heavy fire of Idea-missiles from all directions in his tenure, he had to come out in detail over genesis of NPAs, Rate-Cuts, Inflation, GDP etc. which otherwise would not have happened at all. Had Judiciary been open to public criticism, Stay-Orders being major cause of Judicial delays instead of 44% vacancies in courts for judges, would have been discovered by some private enterprising individual or NGO long ago instead of by the Law Ministry ultimately. Had Judiciary been open to public criticism, their judgement in JMM Bribery case might have been different. Had Judiciary been open to public criticism, Supreme Court probably would never have dared suspending right to life and liberty as a fundamental right in years of Emergency-1975 bygone. Had Judiciary been open to public criticism, fear of heavy public criticism would have deterred Judiciary from being trigger-happy to issue Stay-Orders and Adjournments. It was a Stay-Order alone, issued by the Vacation Judge Justice Krishna Iyer against Allahabad High Court Judgement in Indira Gandhis election petition case that changed course of nations history for the worse !! Have we really recovered fully from all ill-effects of that Stay-Order, is a topic of fierce arguments even today.
Freedom of speech guaranteed under Article 19(1)(a) must override the Law of Contempt of Court. If in a democracy, all authorities beginning with President down to the juniormost bureaucrat are public servants and exposed to barrage of criticism barring defamation and sedition, then why not Justices ? In the Spycatcher case in 1987, a prominent newspaper in London called the bench headed by Lord Templeman, “You Fools.” And they just brushed it aside with the contempt (!!) it deserved without any punitive action at all. Contempt Law is discretionary hence unpredictable. Why was the Law of Contempt of Court not invoked and contempt proceedings initiated against PM Rajiv Gandhi when his Government overturned Supreme Courts judgement in Shah Bano case ? When a Union Cabinet Minister had accused Judiciary of sympathizing with Zamindars, Industrialists, FERA violators, Bride-Burners, they picked up no offence at all. When a petty bureaucrat fails to honour courts orders, he is warned and hauled up immediately destroying his/her career forever. These are instances of blatant discrimination by the higher judiciary nation is so used to by now. The Contempt Law must be scrapped immediately in the spirit of following words of ‘Lord’ Denning in 1968 as under, so as to expose judiciary to severe criticism, rather excoriation, “Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism nor do we resent it.” Since our Supreme ‘Lords’ and ‘Ladies’ love to quote western wisdom howsoever shallow or preposterous that may be instead of Vedic wisdom, civil codes of Manusmriti or Nyaya Shastra, let us hope against all hopes, they shall indulge themselves by scrapping the Law of Contempt with the contempt it deserves inspired by ‘Lord’ Denning.
Another manifestation of Judicial Ivory Towers of Arrogance is rejection of widely acclaimed masterpiece of legislation of National Judicial Appointments Commission and continuation of the Collagium system of appointing carefully nurtured clones of Judges through ‘stem cells’ of a particular bend of mental, ideological propensities solely by incumbent Justices alone. All names of prospective candidates recommended by the SC Collagium for Judgeship must be shared with public so that the nation knows who is son of which politician, who is a Communist by lineage, who is whose nephew or niece, who is whose Judicial ‘Chela’ etc. And that is the main reason of the stalemate over MOP today. Judicial Self-Procreation rather Judicial Inbreeding is impossible to be justified by any stretch of imaginative reasoning. As a matter of fact, Collagium is blatantly unconstitutional and SC have been liberally, brazenly indulging in unconstitutionalism since 1993. Will that be an outreach if Supreme Court post-1993 is declared entirely illegal, unconstitutional and fraud on the spirit of democracy enshrined in the Constitution ? Will that be an over-statement if they are compared with politicians who have been shamelessly covering up and justifying their corrupt activities ? If war is too serious business to be left entirely to the wisdom of Generals, judiciary too is too serious a business to be left entirely to Judicial-Wisdom. We are only country in the world wherein unelected Judicial-Tyranny of ‘Lords’ over even an elected Government that passes NJAC with 99.99% unanimity in addition to several legal luminaries of past and present, is supportive of it. It cannot happen even in USA though regarded as the most outstanding democratic country in the world. Tossing out NJAC by Supreme Court is the most shameful chapter of our Judicial-History and I would expect entire Higher Judiciary be ashamed of it.
During seven decades of our independence, legislature, army and bureaucracy have been extensively democratised barring Higher Judiciary. Denial of democratisation of Higher Judiciary started with constitution of Collagium System that was raised in response to Prime Minister Indira Gandhis reckless interference with Judicial-Autonomy. However, it is no more justifiable with enormous awareness in the country, installation of a well-meaning Government and proposal to enact NJAC with complete transparency to appoint Justices for Higher Judiciary. Moreover growing specialisation in various disciplines like financial market, environment, IT issues, intellectual property, complexitities of governance demand specialised judges dealing with cases of their respective expertise. After passing my strictures on Higher Judiciary, I am certainly not going to reserve my Judgement. Here is it – Judicial-Independence must not be allowed to exist without Judicial-Accountability.
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