The top 5 judges should go home…

Harish Khare

WHAT next? Do the four “dissenting” judges go back to the Supreme Court on Monday morning? Will the Chief Justice, Dipak Misra, be able to go about his business as if nothing had happened last Friday?

And, more importantly, how will the moral authority of the apex court get refurbished? The legal powers remain intact, but the open disagreement voiced by the four judges with their Chief has depleted the Court of its already diminished lustre and aura. The system has broken down.

The conventional, kneejerk view is that the four judges should not have gone public with their differences. After all, the judiciary is our last great hope and the citizens would lose faith in the “system” if it turns out that the judges, too, were a factionalised bunch. Everyone is afraid that the very thin veneer of infallibility and incorruptibility has been breached. 

There is some merit in this argument; but, it is more like the cover-up spiel often advanced in connection with wife-beating. The woman should never talk of it outside the house; after all, it is a matter of the family’s izzat. 

The question that demands our attention is: Why was it not possible for the senior judges — including the Chief Justice — to find an amicable resolution of their differences? It must be assumed that whatever happened on Friday had been in the making for a while. In recent months, we have had some inkling of how small minds at the Bench were unable to cope with the burden of judicial statesmanship and personal rectitude. Acrimonious exchanges have taken place between judges and senior lawyers.

Obviously, there was not sufficient comradeship which is based on mutual respect; the lines of communication between the Chief and some fellow judges have snapped. 

The unvarnished fact is that most judges today are of mediocre quality; some are even less than mediocre. The very process of selection of judges tends to favour the un-bright. And, since the collegium arrangement got institutionalised, there has been a natural growth of factionalism. In any case, the bright and sharp legal minds opt for the lucrative practice at the Bar. This is not a new phenomenon; in fact, only in the last decade or so have we seen some direct elevations from the Bar to the Bench. 

By the time they make it to the Supreme Court, they are a tired lot; without spark or passion, most remain content to serve their last three or four years without much ado. And, the economy has expanded so exponentially in the last two decades that the judiciary is often called upon to adjudicate on cases with monumental stakes. No one should be surprised if we were to learn that the corporate honchos have their own pockets of influence in the judiciary. 

Mediocre or not, those are the only judges we have; the higher judiciary is the only judiciary we have in which the citizens must put their faith. The political crowd will not be at all displeased if the judges were to reduce themselves to the politicians’ level. 

The onus and initiative remain with the judges to salvage the apex court’s honour and prestige. My personal inclination will be for the four dissenting judges to put in their papers if they believe strongly enough in what they told the nation last Friday. It would be an act of supreme sacrifice in defence of the institution of the higher judiciary. Only then can Chief Justice Dipak Misra feel obliged to step down. And, only then, can we start the process of rebuilding the court’s moral authority.

******************

WE have had an exciting week, thanks entirely to the Aadhaar bureaucracy, which took great umbrage at our expose (January 4) and wanted to throw the book of criminal law at many of us. It was a simple, old-fashioned attempt in intimidation. We were not impressed. Not in the least. 

We were happy to pick up the gauntlet. In fact, there was no gauntlet to be picked up; all that was needed was to reiterate our right and commitment as a newspaper to undertake investigative journalism in public interest. 

The Aadhaar innovation has become a kind of imperialist arrangement. What began as a limited exercise has been enlarged into a massive, intrusive instrument. All this expansion has taken place in the name of ‘national security’ and because of the insistence of the official security agencies to keep track of everything the citizens do or do not do. This is technological Stalinism, with far-reaching consequences. 

Perhaps, the official bureaucracy did not anticipate the reaction its FIR against The Tribune and my colleague Rachna Khaira would invoke. There was a spontaneous, nationwide condemnation. The common refrain was: “Don’t shoot the messenger.” This was an attempt to muzzle the press, and it was rightly seen as such not just by the media fraternity but also by all sections of the civil society. 

What was a pleasant revelation to me was the reaction in smaller towns in defence of the freedom of press. I understand that protests in defence of The Tribune have even been held in faraway places like Kerala and Andhra Pradesh. Very reassuring. 

******************

PROFESSOR Dietmar Rothermund, a great friend of India, is fighting cancer as he completes 85 years later this week. His friends and admirers are looking forward to greet this redoubtable man and scholar.

I have known him for almost 20 years, but have been familiar with his works much longer. He was always hospitable to the Indian scholars visiting the South Asia Institute at the University of Heidelberg.

Singlehandedly, Rothermund, who for years was professor of South Asian History at Heidelberg, sustained an interest in India and Indian studies among legions of scholars and academicians in Germany, that too at a time when India registered a rather hazy presence on the European radar. 

Rothermund has produced half a dozen books on India, and these make standard reading material for anyone wanting to get immersed in the South Asian history, politics and society.

He provided leadership at the South Asia Institute, attracting scholarly talent from all over the region. If Germany can boast of a sizeable pool of Indian experts, it is primarily because of Professor Rothermund’s lifelong affair with things Indian. India should find a way to honour this man.

******************

FOR a brief period, it did appear that the authorities would want to come hunkering down and haul up my colleague Rachna Khaira and me to the jail. The first concern was whether one is allowed any books in the jail and, if so, what books to take along. Friends made cheeky suggestions. But, I was told, definitely, no coffee. Well, it did not come to that pass. 

I hope this Lohri, you enjoyed the gajjak; it goes better with black coffee.

Join me.  

[email protected]