Several thoughts assail a citizen’s anguished mind in the wake of the recent judgment of the Supreme Court in Asok Pande case. Yet it is entirely on expected line, only worse compounded by poor philosophical foundation of its logic. One wonders if this quick judgment delivered inside of two days is aimed at preempting and nullifying Shanti Bhusan’s application that has raised some fundamental questions on legal propriety, not to speak of moral and ethical issues.
There are moral and ethical issues in this case too. For the CJI – whose acts of allocating cases had prompted the 4 senior most judges of the apex court to go public with their anguish – to head this bench to hear the matter rather than recuse himself is the most fundamental. “Nemo iudex in causa sua” – no person shall be a judge in his own cause, goes the well-known judicial principle of natural justice. This proves the very erroneousness of the basic foundation of arguments adduced in the judgment to dismiss the petition. The logic is flawed because it is invalid.
How much this streak of folly runs through the argument is evidenced from the fact that the arguments lasted for less than five minutes, and far from dismissing the petition “in limine”, the judgment was reserved, and delivered without any notices issued to respondents. Public perception of suspicion of events unfolding in the apex court shall haunt us for all times: Was the pronouncement of the judgment made in double-quick time (within two days, after a 5-minute hearing) aimed at forestalling Shanti Bhusan’s petition’s outcome, which though submitted around Pande’s petition, wasn’t registered or numbered or listed and heard till April 13, 2018? Or, will this judgment become the newest threshold to determine Shanti Bhusan’s petition’s outcome, much as the instant judgment leans heavily on the Supreme Court’s hurriedly ordered constitution bench’s judgment of November 10, 2017?
Beyond impugning the basic tenets of legal juridical foundations on “natural justice” and “conflict of interest”, the judgment per se also bristles with fundamental weaknesses on the scaffolding that makes democracy the best available human construct yet: separation of power, checks and balances, rule of law. The judgment deems entrustment and vesting of powers on the CJI as axiomatic and beyond human doubting – and tempered and wrapped with supreme, high-falutin divinity. To wit: “The authority which is conferred upon the Chief Justice, it must be remembered, is vested in a high constitutional functionary. The authority is entrusted to the Chief Justice because such an entrustment of functions is necessary for the efficient transaction of the administrative and judicial work of the Court”. Add the following lines – “In the allocation of cases and the constitution of benches the Chief Justice has an exclusive prerogative. As a repository of constitutional trust, the Chief Justice is an institution in himself” and the egregiousness of axioms are complete. The absolutism attributed to Louis XIV of France “I am the State” (“L’Etat, cest moi”) in the late-17th and early-18th centuries could be apocryphal, but the “absolutism” conferred here in the 21st century by the highest court of the land is for real!
The coup de gràce of the judgment’s rationale comes a touch later though. “The entrustment of functions to the Chief Justice as the head of the institution, is with the purpose of securing the position of the Supreme Court as an independent safeguard for the preservation of personal liberty.” Read the next two utterly presumptuous misjudgments: “There cannot be a presumption of mistrust” and “The oath of office demands nothing less.” Were the same true, the Supreme Court itself wouldn’t have offered the collegium system for appointment of judges to the higher courts of the land rather than leaving it in the hands of the Chief Justice of India.
Looked at in a broader canvas, if the same spirit of oath of office had animated and held fast for all other holders of constitutional offices, we would be living in a paradise with no need of any oversight countervailing bodies!
Clearly divinity with its benediction is in full play here. Their Lordships have invoked divine benediction and blessings to take the failings off a normal possessive individualist man to the realm of the astral, and to posit certain select humans from time to time to be blessed with this transcendental sheen. It is just as well to remember that it’s this innate inexorable human nature that prompted the early man to codify a social contract, today best exemplified in the term “Rule of Law”. Reposing blind faith on the CJI on administrative matters when the role itself is likely to set the tone and pattern of the justice delivery system, especially in times of demand for accountability and clamour for transparency, and when other state organs and public functionaries (the Prime Minister not excepted) are rightfully hauled over the coal in their public acts, betrays a poor philosophical understanding of India’s socio-economic and political reality. It needs no reminding that the words of Thomas Fuller, the 17th century English churchman and historian, “Be you ever so high, the law is above you” or any of its variants is apotheosized today and is on every citizen’s lips. Today is like no other time, especially when the social media has gained traction thanks to the internet highway.
I guess even a George Curzon would turn in his grave and blanch at the inadequacies of his own egotistical presumptions: “I am George Nathaniel Curzon, a very superior person”. Sadly, aside from its innate weaknesses of the logic and the delusion of grandeur in investing divine certitude and omnipotence on select juridical pantheon(s), the judgment fails to take into account the nation’s prevalent mood, and the raging groundswell for fairness and impartiality that has surged in every citizen’s heart, and the wired world we live in. Neither does the order take into account the fact that it concerns the highest court of the land with no court of appeal beyond it.
Silhouetting the issue against a larger canvas, one anguishes how much Justice Robert H. Jackson’s prescient words in United States vs Wunderlich that men are more often bribed by their loyalties and ambitions than by money ring true in India today. Intellectual dishonesty is insidiously debilitating and way harder to guard against.
One foresees greater disquiet and turmoil in the foreseeable future in an India that already is in ferment. We look up to the Supreme Court to uphold our rights and liberty by strict invocation of the rule of law and constitutional values; it is far too revered an institution to be trifled with. Its wellness shall determine the wellness of India's governance architecture and India's democracy. Clearly, the matter is a battle of accountability/transparency vs. inhered feudal arrogance/opacity, of constitutional separation of power/checks and balances/intellectual honesty/openness vs. conflation of power/nepotism/cloying cronyism, of the status quo-ists/hidebound conservatives vs. neo-Indian foot soldiers/passionate proponents of existential realism. The dialectics inevitably, even inexorably, shall play out with equal vehemence on both sides of the divide for quite awhile in this battle of attrition.
Plurality, equality, fairness, time-tested conventions, judicial morality, transparency, rule of law are all germane to any modern democracy in a world corralled by internet highway. If these traits are absent or vitiated, it shall strike at the very root and diminish democracy. Much as opacity must make way for transparency, feudal hidebound Indian hierarchical order must give way to logic, nous, and smarts. Sadly, this hurriedly crafted judgment delivered from the pulpit of justice is far from ennobling and edifying – not for the present, doubtless not for the future too.