At a time when judicial integrity and independence is being questioned in India, it is up to the SC to course correct and protect the idea of ‘Satyameva jayate’
All those who are credulous about 'Satyameva jayate', expected the truth of the aspirations of Prashant Bhushan to be brought forth. But, to their chagrin, instead, without making any such attempt, the SC bench has punished him for its contempt. Whether in the process the Apex Court has regained respect or not, it is certain that Bhushan's image in the public eye has soared high for his principled stand, even in the face of conviction, that an apology to what he did consciously would amount to 'contempt of his conscience.' He has thus provided an oasis amidst the mirage of ethics and values, truthfulness in public life, in which people either lack conscience or consciously kill it even in using and abusing authority. Moreso, in the present regime, when democratic principles and institutions are being trampled upon, like when Emergency was in operation.
In the wake of the Emergency imposed on a black Wednesday, in June 1975, FRs were suspended, press censorship imposed, lakhs of people who opposed the government detained under MISA, and an ambience of terror was created. Barring Justice HR Khanna, the hand-picked CJI AN Ray and three other scared-judges even set aside the orders of 10 High Courts to order that 'FRs of life and liberty under Art 21 stand suspended during Emergency, and even Habeas Corpus petitions cannot be taken up in courts.' Years later, Justice Chandrachud apologised to the nation, for letting the country down.
It was through the 44th Amendment that the Janata Party government restored the effect of Kesavananda Bharati judgement to ensure that 'the basic structure of the Constitution is not tampered with and the FRs are not suspended even during Emergency.' However, it is an irony that the current ruling party which is the product of the Janata Party that stoutly stood for a healthy and vibrant democracy, are now enforcing the ills of Emergency without declaring it officially.
Systematically, every democratic regulatory institution has been atrophied in order to enforce their diktats. Poor CBI, IT, ED, CVC, police, etc., have been over-obediently targeting lawyers, intellectuals, activists, and others, who voice their opposition to the Government, and are also helping in engineering political defections. At the same time, the media is made to dance to their tune, to spread amnesia among people and divert their attention from such matters and other pressing issues. 'Bully is the synonym for fascism,' said George Orwell.
When democracy is thus dangerously poised, people look up to the SC, expectantly. But, unfortunately, it is also under assault.
The Government can delay the appointment of judges until they find someone with ideological leanings and weak. They can starve the Court of infrastructure. Further, using the weapons of IT, CBI, ED, etc. by digging out some old matters, they can blackmail and intimidate them, or can induce them with post-retirement placements.
Therefore, the country took it as an endorsement of these circumstances when Justice Arun Mishra said, 'The way this institution is being treated for the last three-four years, this institution is going to die.'
Successively, CJIs have been working under some obligation to the Government. When the suicide note of Kaliko Pul, former CM of Arunachal Pradesh, alleging the demand of bribe by the son of Justice Kherar and brother of Justice Deepak Mishra in the case of imposing of President's rule, which was recommended for CBI enquiry by the Governor, was pending with the PM, Kherar was elevated as the CJI. Similarly, the enquiry into the suspicious death of an upright judge Loya hearing the Sohrabuddin case that involved the Home Minister was buried. It was in this context that four senior judges of the SC, including Justice Gogoi, had voiced their concern in public about bench-fixing by CJI Deepak Mishra by referring cases to junior judges. The loyalty of CJI Mishra to the Government is obvious from the fact that by suppressing the pending CBI FIR against him for his involvement in corruption in a medical college scam of Orissa, he was elevated as the CJI.
Then, with the details of the sexual harassment case in the hands of the Government, as well as a matter of ED against his closest relative, CJI Ranjan Gogoi was bent to such an extent that he began to crawl, even by innovating the sealed cover proceedings that denied access of details to petitioners. Case after case, he favoured the Government; spent undue time on Sabarimala and Ayodhya matters to please them; and kept pending issues of public importance, like Art 370, Habeas Corpus, CAA, Electoral Bonds, electoral inconsistencies, etc., as also of JNU, Jamia, Shaheen Bagh, Delhi riots, etc. He did not even extend any help when Justice Muralidhar was transferred out overnight for his bold orders for FIRs against some ruling party leaders for hate-speeches that led to Delhi riots.
Although orders of judges normally pass off as their wisdom, the Nelson's eye of the recent CJIs was a matter of concern for people. Apparently, Prashant Bhushan has voiced this concern for paving the way for course correction. The Court, however, in its subjective perception, construing his tweets as a malicious and scurrilous attack to lower its dignity, punished him for contempt.
However, the priority hearing to pronounce judgement before Justice Arun Mishra retired, initiating contempt proceedings without seeking concurrence of the Advocate General on such petition and not allowing him to speak in the court, depriving Bhushan a copy of the petition, and most importantly, not examining the truth of the matters elaborated in the affidavit, raise eyebrows. People are also puzzled that while the judges wanted to deal with an iron hand an attempt to shake the very foundations of constitutional democracy, how the revelations of the four judges in a press conference about the wrongdoing by Justice Deepak Mishra, and saying democracy was in danger, can be considered as not lowering the dignity of the court, and as not a graver contempt to shake the foundations of constitutional democracy.
Furthermore, the country expected that a Pandora's box would be opened when the dormant case of contempt of 2009 against Bhushan, in which he made specific allegations of corruption against several CJIs of those days, was also clubbed with the present one. But, the judges preferred not to open the box of worms, and instead tried to cajole Bhushan to extract an apology. Bhushan, however, refused to do so, saying an apology would only amount to contempt of his conscience, alluding to such words of Gandhi in the Champaran episode.
Soli Sorabji, former attorney general, says, 'Where is the question of apology and punishment when the merits of the allegations are not even examined. SC is not a divine institution. The present action only lowers their image.'
The onus is now on the SC to redeem its respect, by making a course correction in the process of the curative petition, to restore the faith of people in 'Satyameva jayate'.
The writer is a retired IPS officer and a former Member of Public Grievances Commission, Delhi. Views expressed are personal