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.
