When Judges refuse to sell their Souls

Now the nation knows why Tirath Singh Thakur, the 43rd Chief Justice of India, wept in public.

Not once but twice. Now we know why Chief Justice Thakur – who retired exactly one year ago on January 9, 2017 -- felt so helpless when dealing with the government on the issue of judicial appointments, why he publicly accused the Centre of“playing ping-pong” and returning 43 out of 77 recommendations made by the collegium, why he complained bitterly when the Prime Minister completely avoided making any mention of the judicial crisis in his 2016 Independence Day address, and even threatened to summon the PMO’s Secretary before the court.

At that time, the establishment and the media did what they always do when confronted by somebody in authority who shows the courage to speak out: they spread the word that Chief Justice Thakur was not able to cope with the pressures of his high office. With a nod and a wink, they insinuated that he had lost his composure and had lowered the dignity of the Judiciary with emotional outbursts.

One year later, they are saying, or implying, the same things about the four senior judges who have shown the courage to stand up against tyranny. Rather than pay attention to what Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph said at their press conference on Friday, the focus is on why.

Why did they do something so extraordinary, so unprecedented, so detrimental to the image of the highest court in the land? Why could men of such wisdom and distinction have not stayed within the bounds of propriety and expressed their anguish in some other quiet and decorous manner? Why wash dirty judicial linen in public? Were they not worried that it would erode the credibility of the apex court?

The answer should have been clear to everybody not wearing blinkers and ear-plugs. Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph had explored all the other avenues. They had, as they stated with such clarity, written to the Chief Justice, held face-to-face meetings with him, tried their level best to persuade him not to indulge in (or seem to indulge in) Bench-fixing.

What more could they do? They had two options – remain silent or speak out. Meekly acquiesce or stand up against tyranny. They chose the second option regardless of the consequences for their own careers. In Justice Chelameswar’s historic words: they did not want future generations to say they had “sold their souls” by remaining silent.

This is perhaps the most profound segment of the press conference which has shaken all the pillars of democracy to the core. Why would posterity accuse them of selling their souls unless much more was at stake than “selective allocation of cases” and rigged rosters? Not that these are not very important matters -- in simple terms, if politically sensitive cases are deliberately assigned only to judges who are willing to toe the line then justice will neither be done nor seem to be done.

But the issues involved in what the four brave judges unveiled before the nation on Friday are bigger and even more serious than suspicions of Bench-rigging. That is only a symptom of a deeper malaise within the justice delivery system as a whole. *

It goes to the credit of Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph that they displayed admirable restraint in their extraordinary presentation. The “system is not in order” was all they really said. They refrained from bringing out all the really dirty linen out in the public glare.

They confined their criticism to the “selective manner” in which the Chief Justice was exercising his role as “master of the rolls”. They did not go further by asking why the Chief Justice was doing what he was doing, or who might be pulling the strings from behind.

The honourable judges, who in seniority are ranked immediately after the Chief Justice and one of whom – Justice Ranjan Gogoi - is due to be elevated to the highest post in November 2019, were not out to stage a mutiny or lead a revolt, as some commentators have alleged. Had they wished to do so, they could have. But they did not.

They merely mentioned the arbitrary manner in which cases were being assigned and did no more than drop subtle hints about the motives why this was being done. The main reason why they were at all speaking out was, as they so eloquently explained, their conscience prevented them from passive acceptance of something which was very wrong and dangerous for democracy. They did not want posterity to think they had “sold their souls” by remaining silent.

It may be useful to recall some of former Chief Justice Thakur’s words in the months before he retired: “Cases and litigation have increased. People’s expectations have gone up. It is all becoming very difficult for us. This is why I have repeatedly urged the government to pay attention to these problems.”

“I would want to say only one thing to the government. You (government) say you want to remove poverty, give employment to people, keep the nation together and frame all your big schemes. But please also give a thought for justice to your countrymen”.

“Gul phenkein auron par, balki samar bhi. ae abr-e-karam ae bahre sakha kuch to idhar bhi (you have strewn flowers and thrown fruits in others’ direction but I am waiting here as well),” he said. He waited in vain. Then he wept in public.

The four wise men who have stood up now are, hopefully, not the kind to shed tears of frustration. They have decided not to sell their souls. It is now up to the other pillars of democracy – the political parties and the media – to stand up to fight against the pressures that are so obviously being brought to bear on the highest judiciary.