When a nation’s temper and its institutions are contraindicative it’s time to begin anew. We are currently sitting out the last gasp of a dying order
The last thing an Indian citizen should do is get caught up in the vicious quasi-personal ideological battles being waged over the Four Judge Revolt circa 2018 by our legal, media and academic warriors. For, they blatantly took sides, purportedly brought out issues their opponents had elided and made other allegedly intelligent arguments of great pith and moment for India’s future as a democracy based on Rule of law in the latest installment of the prolonged period of one-upmanship our national institutions have been subject to since 1947. Albeit in earlier decades without too much contestation because of a shared aesthetic among the empowered in terms of the nature and agency of state institutions, given the primacy of what Rajini Kothari termed the Congress System which itself was grafted on to colonial-state structures.
It is safe to say, after a perusal of the facts in the public domain, the following:
(i) The four senior Supreme Court judges who went public to inform the nation, much like news television anchors, of their disagreement with the Chief Justice of India (though why they would do so unless the nation was being invited to intercede on their behalf is moot) are fair-minded men of impeccable personal integrity, great learning and immense experience who have no pecuniary interests or self-aggrandisement at stake.
(ii) Allocation of sensitive cases of national importance, which their complaint was were being assigned by the CJI to judges other than themselves, the four senior-most after him, has been existing practice for over two decades in the Supreme Court and is nothing new.
(iii) There is no evidence to prove that either the four judges who revolted, or the 26 who did not, have ties to any political party. let’s leave rumour and innuendo to the abovementioned warriors.
(iv) If all judges of the Supreme Court are equal as iterated by the aggrieved judges and the CJI only primus inter pares, surely, on a parity of reasoning, that applies to all judges of the Court including those junior to the four insurrectionist judges. So, there can be no issue of anyone being less or more capable to deal with sensitive issues of national importance.
(v) Whether or not Benches are re-allocated in one or more cases as part of a talked about patch-up between the Chief and his upset colleagues, the fact remains that the outing of their concerns by the protesting judges via a Press conference in the chaotic ecology which passes for media today means any concessions they wrest from the Chief Justice of India, whom they have publicly undermined, would reasonably be seen by that amorphous body sometimes egregiously referred to as the People of India as having nothing to do with the acceptance of any principle.
(vi) The long shadow of corruption seems to have, and this is truly tragic for Rule of law in this country if true, reached the ranks of India’s higher judiciary judging from the CBI charge-sheet in the lucknow medical college case and phone conversations of the main accused. But, and this is vital, due legal process is underway to establish guilt/innocence, so it would be both prudent and responsible to wait for its culmination before names are irresponsibly bandied about activist-lawyers, defamatory narratives pushed by activist-journalists and these discourses provided validation by activist-academics.
(vii) What is often referred to, incorrectly, as the politicization of our national institutions of which the higher judiciary (and armed forces) were said to be immune but is in reality an ideological-aesthetic provenance sans party affiliation is an accomplished fact and always has been though there are always individual exceptions.We have started noticing and talking about it more since 2014 because the rupture from the Congress System, whether it was run by the left in the form of the Nehru-Gandhi Congress/Third Front type dispensations or by the Right which included earlier NDA regimes, is more or less complete now.
That it was the four senior-most judges after the Chief who were the most high-profile protagonists in this latest shock to the system is neither here nor there. Only fools expect conflicting understandings of the verities of form and substance not to impact all citizens of India however exalted their posts or pedigreed the institution to which they owe allegiance. To paraphrase the political philosopher Joseph Raz, conflict is endemic to value pluralism in all its forms. And therein lies the rub.
Because if India is serious about dealing with the deepening lack of institutional accountability and integrity across the board despite glorious exceptions through the decades, she has to find the will to Constitutionally enforce a sense of personal accountability and integrity among those who populate these institutions. Better minds have made the point that a Presidential as opposed to a Parliamentary system of democratic governance would have been more suited to Genus Indica, as it were, for a plethora of philosophical, societal, cultural, political, economic and administrative reasons; the founders of our nation, in their wisdom, decided otherwise and the Westminster model was adopted after Independence.
The objective realities of India in all above spheres during the intervening years, however, have changed substantively enough to make them unrecognizable to the nation’s founders and the current crisis in the higher judiciary underlines the need for a transformation in the manner of how we govern ourselves democratically; it is now almost a Kantian categorical imperative. In philosophical terms, the collective has become an excuse for individuals to elide responsibility, undermine institutional integrity and condone ineffectiveness. These are the clear and present dangers to Rule of law and Indian democracy, not a proposed shift to a more context-appropriate system of democratic governance.
Any serious debate on this issue, naturally, in no way stigmatizes the Parliamentary system; on the contrary, the value our current system of governance has had over the past 70 years is genuinely appreciated, especially its seminal role in ensuring Indian democracy took root and went deeper than in any other post-colonial state. But the time has now come to use those strong roots to ensure democracy flowers and that cannot happen without effective governance through institutional mechanisms that fulfil their twin roles of being accountable and delivering justice, security and equal opportunity to all citizens. The Parliamentary model has served its purpose. We must thank those who have served it from the depth of our beings and move on to doing the groundwork for the establishment of Presidential democracy in India modeled on though not imitative of the US system which is of comparable scale.
So, what does all this have to do with the current crisis in the judiciaryIJ In so far as it impacts the mechanism of justice delivery, the separation of powers concept — between the Executive, Judiciary and legislature — is handled very differently in a Presidential set-up where the President is the first among equals but with enough checks and balances built into the system to ensure s/he cannot act unconstitutionally. Crucially, appointments to the Supreme Court are made by the Executive, subject to clearance by the legislature, and once elevated judges serve for life or till they step down due to incapacity, answerable to none but the Constitution of that country. US Supreme Court Justices including the Chief may, of course, be impeached by the legislature for “high crimes and misdemeanours” just like the US President.
This system has two distinct advantages. The first, is that you know what you are getting. If you elect a President who stands for, say, making India an Islamic republic you know that his appointments to the Supreme Court will be of jurists who are like-minded, possibly experts in Abrahamic religious laws; similarly, if you elect a President who is a proponent of the redistribution of wealth by the state, chances are that the judges appointed by her will have a proven record of making the legal case for precisely such a policy. Whatever core issue the President and his/her political party represents is likely to be reflected in his/her choice of judges but that in itself is no guarantee of a rubber stamp given the fixed quorum of the Court, the Justices’ lifelong commission and the uncompromising integrity of the institution which the system ensures the individuals who populate it have an abiding stake in preserving.
Secondly, given the nature of the selection process and the prestige (including financial security) and permanence attached to the position, only outstanding legal minds make it to the top regardless of their views on social, religious, political or gender issues, for example. It is a truism but no less true for it that we all have prejudices but rigour and quality ensure that our prejudices are educated ones that meet the ends of justice and the letter of extant law.
Ironically, it is politicians, who are today less ideologically committed than the hosts of media, legal and academia warriors, who know best the utter futility of trying to work a system that is past its sell-by date. After all, within our current system of government they are probably the only class of public servants in contemporary India who don’t have actual contempt for the masses, even if purely out of self-interest.
(The writer is Consulting Editor, The Pioneer)
