Jury out on the four judges?

The tsunami of the open revolt in Supreme Court is yet to ebb. The landmark presser on January 12 by four judges continues to divide public opinion. Much revered Justice Chelameswar is senior-most among the rebellious quartet and number two in the apex court. He hosted the unprecedented press conference and also led it.

Justice Chelameswar has remained defiant with comments that have bearings on not only jurisprudence but also political life in the contemporary. Yet punditry about the presser or that about his remarks has limited itself to the legal domain. The extraordinary press conference, the barbs that have followed and their impact on the polity in populist times remain mostly unexamined.

About the extraordinary meeting Justice Chelameswar said, “… we thought we owed a responsibility to the institution, to the nation…” (01:32 – 01:38). He added, “…we were left with no choice except to communicate to the nation that please take care of the institution and take care of the nation…” (03:02 – 03:10). He repeated, “…we place it before the people of this country…” (03:30 – 03:32). Justice Ranjan Gogoi said the final words, “It’s a discharge of our debt to the nation…” (07:48 – 07:52).

Justice Chelameswar and the only other judge who spoke in that presser – Justice Gogoi – evoked the abstract entity called “nation” to justify their dissent. But they also clarified that by nation they refer to the “people” who constitute such a community. This is precisely where the problem lies. Hardly have the “people” demonstrated itself in totality, not even in election. Now and then, however, a significant number has claimed to carry the will of them all. The context determines if such collective is an innocuous majority or, as Alexis de Tocqueville had feared, an alarmingly tyrant one.

“People of this country,” or of any nation-state, often act in a manner that is not only anti-law but also anti-civilisation.

The case which accelerated the end of the jury system in India — KM Nanavati versus State of Maharashtra (1959) — is significant here. In the sensational trial, the jury had declared naval officer Nanavati not guilty by an 8:1 verdict. It had led to cheers outside the courtroom. But the judge had called the verdict “perverse” and referred the matter to the Bombay High Court with this statement: “I feel our whole law is on trial”.

This was a precarious moment when passionate prejudice had dictated justice. Nanavati was let off because the extramarital affair of a woman, the wife of Nanavati in this case, is a threat to patriarchy. The murder of her paramour was, thus, not criminal enough to the jury selected from the “people of this country”.

It is hard to find evidence that has led the honourable four to repose faith in the “people of this country” in matters of jurisprudence.  

“People of this country” wanted Ajmal Kasab to not be given a fair trial. “People of this country” wanted rapists-murderers of Nirbhaya to be castrated. “People of this country” want the plunder of environment to continue unabated no matter what the consequences are. “People of this country” want particular types of endogamies and exogamies to be treated as incest.

There are numerous instances that have knocked the doors of the Supreme Court to seek protection from the “people of this country”. So how do the Honourable Four approach the “people of this country” to safeguard the Supreme Court? Is it not akin to asking the tiger to guard the lamb?

Had the Honourable Four, in the final moment of revolt, summoned reason — that sacred faculty which is invested in them as part of the original contract between state and society? They, after all, could not have ignored the precedent they were about to set.

Citizens sleep not only because heroic men guard borders. Credit is also due to the judiciary. Citizens sleep because the wise men of India have held court even in the dead of night to deliver justice. And reason, necessarily dispassionate, is the sacred instrument that achieves justice. Emotions often cloud the intellect and the heart often leads the head astray. But the Honourable Four may have compromised reason in their state of anguish and frustration.

Karan Thapar hosted a conversation with Justice Chelameswar at the Harvard Club of India on April 7. Justice Chelameswar began with a quote from Harvard doyen Laurence Tribe: “I do not consider the judgments of the Supreme Court to be synonymous with Constitutional truth…finality of the judgments that the Supreme Court has is essentially a compromise between order and chaos (05:08 – 05:52).”

This compromise is crucial because, in the words of Justice Chelameswar, “no system created by human beings can be perfect” (07:32 – 07:36).

Why then did the Honourable Four endanger order and risk chaos? The apex court is in disarray today. Top lawyers are at the throats of each other. Opposition members in Parliament united to impeach the Chief Justice of India (CJI). Their aim is not so much to uphold the judiciary as it is to embarrass the government.

Even Justice Chelameswar seems to have understood that he overestimated the wisdom of the “people of this country”. When asked about the possible impeachment of the CJI on January 12, he stated, “Let the nation decide. We are nobody to decide.” (07:04 – 07:08). On April 7, however, he said rather dismissively, “I don’t know why this nation is worried about this impeachment business,obsessed about it…Impeachment can’t be the answer to every question, every problem (43:22 – 43:46).”

Besides his change of position on impeachment of the CJI, it is significant to note how his regard for the nation, and therefore its people, shifts from undue reverence to mild rebuke.

Justice Chelameswar made another comment in the course of that conversation on April 7. When asked about the main allegation against the CJI — preferential Benches in the Supreme Court — he replied, “…they have a certain political orientation or a certain economic philosophy. Therefore, they are likely to decide cases in a particular way which would be consistent with the prevailing political philosophy of the government of that time…it’s not that individually those judges are good or bad…” (46:54 – 47:28).

Justice Chelameswar has not clarified if he has fulfilled his place behind the “veil of ignorance”— the clean slate on which justice should be ideally inscribed. In fact, the presence of CPI leader D Raja on January 12 at his residence has certainly made any such claim look ludicrous.

To draw from a famous quote, ‘impartiality must not only be embraced but also appear to be embraced’.

Besides whataboutery of Raja — a vital tool to flag bias — it is impossible that humans, including judges, be free of subjectivities. What is to be ensured is that such subjectivities do not hinder the process of justice. Any blow of whistle in this regard will have to be rigorous in approach. It will be anarchy otherwise. As Fali Nariman suggests: The move to impeach the CJI must be on “extraordinarily important grounds” as “the final interpreters of the Constitution is the judiciary and not Parliament”.

Justice Chelameswar also suggested on April 7 that the perception of preferential Benches is an old one (30:30 – 34:00). So what is so pressing in 2018 that made the Honourable Four address the nation via press conference? And why did they put the unpredictable will of the people over the strength of reason? The answers are not evident.

But what is amply clear is that a desperate Opposition in Parliament has teamed up to make the most of a situation offered by the Honourable Four. The damage is yet to be estimated even as the motion now stands discarded by the Vice-President.