Hail judges who seek to dispense justice

Have you heard of Justices TS Nalawade and MG Sewlikar? They are judges currently sitting on the Aurangabad Bench of the Bombay High Court. Sitting together as a Division Bench, they made a scathing comment on the Modi government’s insistence on humbling the Muslim clerics who attended the Markaz of the Tablighi Jamaat held in Delhi in March this year.

Twenty-nine clerics from Africa and East Asia approached the court for relief from the criminal charges heaped upon them by one of the Central law-enforcing agencies. The Division Bench squashed the charges and advised the government to make amends to the accused for unnecessarily tormenting them! The judges held that the clerics had not breached any visa rules which were the main allegation that the government had made. Staying in mosques during their sojourn in India and offering namaz as per their custom was not illegal by any stretch of imagination, said the court.

Some months ago, a joint secretary in the Central Health Ministry had, on two successive days, blamed the Tabligh and the participants of the Markaz as the main purveyors of the coronavirus in our country. The statement was based on a perception and the perception was based on an intrinsic bias against a whole community. I had pointed out in one of my earlier articles that there was no empirical evidence to prove the charge. Justices Nalawade and Sewlikar held on similar lines.

What impressed me about these two judges and their findings was not really the substance of their findings but the fact that there are judges in the higher judiciary who are not afraid to tear biases to shreds! Even in Gujarat, which is Modiji’s and Amitji’s home state, Chief Justice Vikram Nath, sitting on a Division Bench with Justice JB Pardiwala, turned down the plea of the Gujarat government to permit the Jagannath Rath Yatra, commenting that it is mandatory to make a choice for health over religion.

Much is already known of Justice Muralidhar of the Delhi High Court. When he was shifted to the Punjab and Haryana High Court almost overnight before the day he was expected to deliver an order unfavourable to the party in power and its hate-mongers, almost the entire Bar turned up to bid him farewell. That gesture of the Bar afforded comfort to believers in justice that there still is hope for sanity and justice in our country. Such judges have obviously rejected the carrot of post-retirement jobs that governments consistently dangle before them. It is not easy to ignore the carrot! Only men built in a superior mould decline!

How are judges chosen? Those chosen from the Bar directly are vetted by the Intelligence Bureau. The government also makes its own private inquiries. When I was Adviser to the Punjab Governor, holding the Home portfolio, Governor Siddartha Shankar Ray asked me to comment on one particular judge of the Bombay High Court. I knew the judge from the Law College days. He was a brilliant student and would have been an asset to the Bench. I knew that he had gone astray and I also happened to know why. I was not comfortable sharing this knowledge with Ray, but since I had been asked, I had no choice but to tell the truth.

Another judge of the Punjab and Haryana High Court spoke to me once, threatening to rule against the government if he was overlooked for higher office. I was taken aback by the brazenness with which this was conveyed to me out of the blue, but I passed on the message to Governor Ray. I was taken aback for a second time when I found that the threat had worked. When the file that asked for the state’s opinion on the then proposed collegiate system of selecting judges for the High Courts and the Supreme Court landed on my desk, I opined in favour since the two experiences recounted above had disillusioned me with the system then in vogue.

I suppose there never will be a perfect, foolproof system of selection. The collegium has also been criticised at times. No human being is above making mistakes. But if mistakes are made, the honourable judges should not take umbrage when an upholder of the citizen’s collective conscience, like lawyer Prashant Bhushan, brings such mistakes to public notice. By holding Prashant guilty of contempt of court, the Supreme Court has turned him into a national hero.

The three-judge Bench that took up the case of contempt against Prashant indirectly threatened him with punishment unless he apologised by August 24. Of course, he did not oblige. For him, it was a win-win situation. If he was not incarcerated, he would win! If he was sent to prison, he would win big! The judges should have read American author Mario Puzo’s book The Godfather. If they had done so, they would not have given a threat they would find difficult to implement!

Prashant, like his father Shanti Bhushan, is averse to any form of injustice. There are many such individuals in existence, but only this father-son duo sets aside all fears and swims against the tide! They fight for the people and their rights. With the present incessant assaults by the government on the guarded gates of institutions, and with the media, the bureaucracy and the police having capitulated, the defence forces and the judiciary are the last bastions of democracy left. Prashant never fails to do his best to save the judiciary with whom he has interacted for many combative decades.

In the eyes of a puzzled society, Prashant is a beacon in the darkness! As are two former IAS officers, Aruna Roy and Harsh Mander!