If there was ever any doubt that the current dispensation is compromising all institutions in this country three judgments of various courts across the nation in the last week have decisively proved that both individual members of the judiciary and, of course, investigating agencies have been unable to either resist temptations or withstand threats held out by the executive authorities.
The guarantees of freedom in our constitution are dependent on the independence of the judiciary and since January this year the contretemps between senior judges in the Supreme Court and the Chief Justice of India has quite shaken the faith of the people in the judiciary. The Supreme Court is the highest court of appeal and up to now people have had the confidence not just in its fairness and independence but in its ability to take governments to task and put the authorities in the dock — like was done in the case of its ruling on the 2G scam during the UPA regime, even if events eventually proved the government right on alloting the spectrum rather than auctioning it. The current dispensation tried auctioning and found no takers even as mobile service providers stood either bankrupted or severely in losses. But while delivering the judgment courts could not have known what the then government was saying was actually true and had gone by the spirit of the common perception on the scam.
I remember both then Prime minister Manmohan Singh and NCP chief Sharad Pawar had expressed apprehensions about judicial activism and overreach and its dangers to the country. But even as powerful executives, they had made no attempt to overpower or interfere with the independence of the institution. Even now as members in the Rajya Sabha have moved to impeach the Chief Justice of India , Dr Singh, by many accounts, has held himself back from being a signatory to the document – though other reports say the Congress deliberately kept him out of the impeachment proceedings to maintain his personal dignity and independence. But that can only be because both Dr Singh and many other prominent leaders in the Congress who are reluctant about the impeachment proceedings are conscious about the need to refrain from politicizing the judiciary and safeguarding its constitutional integrity.
The impeachment proceedings had already been undertaken during the second half of the budget session this month but for some reason not presented to the House before its adjournment. After the apex court’s ruling on the Justice Loya case, however, the opposition felt it imperative to impeach the CJI though no impeachment can take place because someone does not agree with a particular ruling not in his or her favour. But that is not the ostensible reason for the impeachment proceedings. The charges of misconduct against the CJI are very serious and were framed and formulated even as the Loya hearing was in process. And even though the opposition does not have enough numbers in the Lok Sabha to successfully impeach the CJI, the petition itself could render him ineffective and constitutionally incapable of functioning as an independent authority until the proceedings come to a conclusion. The ignominy would be enough to mar his reputation but it is a point to note that the charges of misconduct are based in facts and the CJI may have himself left the door wide open for being squeezed by both the government and the opposition.
However, in a way, it is best that the impeachment proceedings are underway because from the January press conference of the four seniormost judges of the Supreme Court, it is obvious that the CJI had lost the confidence of his colleagues. As retiring judge Amitava Roy said in February this year in his farewell address to fellow judges, if they allow themselves to be compromised they, as a fraternity as a whole, are headed for “extinction”. Moreover, as NCP leader and noted advocate Majeed Memon told me recently, the longer this contretemps between senior judges and the CJI continues, the greater becomes the danger for the institution with regard to its survival. So even if the opposition does not have the numbers to imoeach the CJI, at least it is a fightback to save the judiciary from the extinction that its own judges are afraid of. There are many good and great judges across judicatures in this country. One or two acts of compromise by one or two individuals should not be allowed to mar either its reputation or its constitutional authority.
That the government is compromising the judiciary and other agencies is also apparent from the acquittal of all the accused in the Mecca Masjid blasts case of Hyderabad despite confessional statements of the accused. The instant resignation of the judge (which now has been dismissed by the High Court) has raised many eyebrows but here the is not alone. It is now common knowledge that the National Investigation Agency has for many months attempted to scuttle previous investigations into various cases, including one into the Malegaon blasts case being heard in Mumbai. Rohini Salian, the public orosecutor who blew the whistle on that case told me that all that the NIA has done since she moved away from the case is to attempt to disprove the incontrovertible evidence gathered by the Anti Terrorism Squad of the Mumbai Police. So far they have not succeeded but it is very likely that, in the Hyderabad case, despite confessional statements, the agency did not bring fresh evidence to court to enable the judge to hold out a conviction. The previous accused, young Muslim boys who were randomly picked up by the police soon after the blasts, were ultimately proved innocent when investigators found no evidence on their complicity. But if the recently acquitted persons too did not engineer the blasts, who did.?
However, it is the third case – that of the acquittal of former Gujarat minister Maya Kodnani on appeal after conviction for 28 years in the Naroda Patiya case that leaves no doubt that the judiciary has become one with the executive under the current dispensation in this country. Eyewitnesses saw her off-loading weapons from her car, they even saw children shot by her in cold blood. So if a previous judge could accept the evidence at face value, it is strange that the same evidence was worthless in another court.
It is very obvious what forces are at play. The attempt is to destroy the the judiciary. Only the judges can save themselves from extinction.