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There are Judges and Judges

Peter Mundackal Peter Mundackal
11 Jul 2022
We still remember Justice H.R. Khanna for his judgement in the ADM Jabalpur case, holding   that personal liberty is inalienable even when the country is in a state of emergency. 

When I first heard about judges, especially Supreme Court judges, and their judgements – I think that was during my graduation days in the 1960s -- I used to equate them with gods, viewing every issue with inimitable equanimity, punishing the guilty and rewarding the just.  Not long afterwards, I realised that I was a simpleton in thinking so.  Much later, rather in recent years, I came to the conclusion that impartiality of judges is a precious commodity, but a very rare one.  So is non-corruptibility. But there are a few exceptions also.

In the list of Supreme Court judges and Chief Justices, names of certain judges stand out for good as well as not so good reasons.  Chief Justice P.N. Bhagawati (July 1985 to December ‘86) is credited with the introduction of PIL (Public Interest Litigations), which remind the public and the judges that our legal system has a conscience.  Justice Fatima Beevi was the first female judge and first woman judge of the Supreme Court (October 1989 to April ‘92).  Similarly, Justice K.G. Balakrishnan was the first Chief Justice of the Supreme Court from Dalit background.  But we remember him more for certain charges against him which came to light after his retirement.

We still remember Justice H.R. Khanna for his judgement in the ADM Jabalpur case, holding   that personal liberty is inalienable even when the country is in a state of emergency.  He had come into prominence in 1976 when he stuck to the view that Article 21 cannot be suspended during emergency, incurring the displeasure of Indira Gandhi, the then Prime Minister and costing him his claim to the position of the Chief Justice of the Supreme Court.  Justice M.H. Beg was appointed Chief Justice in 1977, disregarding Justice Khanna’s claim.  He resigned in protest.  Later he was the opposition’s candidate against Giani Zail Singh, for the position of Indian President.

Another Supreme Court Judge, to whom people’s liberty was very dear, was Justice V.R. Krishna Iyer,  who was  the Law Minister, in the first Communist Government of Kerala.   Later, in July 1968,  he became a Judge of the Kerala High Court. He was elevated to the Supreme Court in July 1973.  In June 1975, he created history by delivering a balanced judgement on the verdict of the Allahabad High Court which had disqualified Prime Minister Indira Gandhi’s election to the Parliament.  In the ‘Indira Gandhi Vs Raj Narain’ case, the Allahabad High Court had ruled that Indira Gandhi’s election to Parliament was unlawful and barred her from it for 6 years.  In the appeal against this order in the Supreme Court, Justice Iyer ruled that although Mrs Gandhi could no longer be a Member of Parliament, she could continue as PM. Justice Krishna Iyer is also known for his opposition to death penalty. He was instrumental in fostering the convention that death penalty could be imposed only in the “rarest of rare” cases.  It was a pleasure to read Justice Iyer’s judgements as these used to be sprinkled with colourful expressions.

Those who watch television news should be able to recall a press conference called by four judges of the Supreme Court – J. Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph – on 12 January 2018, to air their complaint against the then Chief Justice Deepak Misra. Their complaint was that Justice Misra used to mark sensitive cases (cases which were of interest to the Modi Government) to himself or to his friendly colleagues. This complaint had caught international attention; The Guardian of 12 January 2018 had also reported it.  Nothing much came out of this complaint.  Justice Misra continued the same practice, jeopardising the independence of judiciary.  The open protest by four judges was the first indication Indians got that the Supreme Court, a hallowed institution, was no different from the rest of the polity.

Justice Arun Misra was one friendly colleague of Justice Deepak Misra. He had profusely praised the Prime Minister on 22 February 2020, at an event where Modi was present, inviting severe criticism from the Supreme Court Bar Association.  Justice Misra was made a judge of the Supreme Court on 7 July 2014, i.e., immediately after Narendra Modi became Prime Minister.  A number of sensitive cases were allotted to him.  In June 2021, Justice Misra was appointed Chairman of the National Human Rights Commission.

Of the four Supreme Court Judges, three – Justice Chelameswar, Madan Lokur, and Kurian Joseph – continue to enjoy good reputation. The fourth one, Justice Ranjan Gogoi, in fact their leader, who succeeded Justice Deepak Misra, became quite known for all the wrong reasons. He delivered a few judgements favourable to BJP and Modi Government, like the Ayodhya judgement, Rafale issue etc.  The Ayodhya judgement, despite its unanimity, was also notable for several illogical arguments (“….an idol was illegally placed……There is no conclusive proof for a temple having existed below the mosque……it was a crime to demolish the mosque, yet it was alright to build a temple where the mosque had stood….etc).  As Mr P. Chidambaram, Finance and Home Minister in the UPA Government, observed, “…it was not the right judgement.  Because both sides accepted, it became a right judgement, not the other way around”.  The fact is that the nation had got fed up with the issue and Muslims stoically accepted it and wanted to move on.  Ranjan Gogoi is further infamous because of an allegation raised against him by a lady staff member of the Supreme Court. Justice Gogoi’s autobiography “Justice for the Judge” too became controversial. A few quotes from an article titled “His Own Judge” by Arshu John in the Caravan of March ’22 brings out some of the interesting aspects of the book.

“More than anything else, Gogoi’s autobiography reads like the desperate attempt of a disgraced judge to set the record straight on the many controversies that plagued his career.”

“The former CJI uses the book to address all the controversies that may have cast a cloud over his reputation.  These include his verdict in the Rafale, Kashmir and Ayodhya cases, and much more.”

“The book is marked by a convenient omission of facts, and includes memories cherry-picked to present Gogoi as the humble victim of an unjust system and an unfair media.”

On 17 November 2019, Gogoi retired.  On 17 March 2020, his nomination to Rajya Sabha was announced.  “This is totally disgusting”, commented Dushyant Dave, President of the Supreme Court Bar Association.  Former Judge A.P. Shah said, “The message it sends to the judiciary as a whole is that if you give judgements that are favourable to the executive, you will be rewarded.  If you don’t do, you will be treated adversely or you might be transferred or not considered for elevation.”

Let us now move to S.A. Bobde, who succeeded Gogoi, and retired on 23 April ’22.  Ms Rekha Sharma, a former judge of the Delhi High Court, in her article “Letting down liberty” in the Indian Express of 24 April ’22,  states that “CJI Bobde’s tenure was marked by reluctance to hear cases affecting people’s life and liberty”.  She cites

(a)  his callous attitude towards the plight of migrant labourers, made worse  by the incompetent handling of lockdown by the Government,

(b) his unwillingness to come to the aid of Siddique Kappan who was arrested by the UP Government for planning to visit Hathras

(c) his adjourning of the hearing of the habeas corpus petition by the Kerala Union of Working Journalists to release Siddique Kappan, and

(d) his extra readiness to hear the petition filed by the editor-in-chief of the Republic TV. She concludes the article with some startling revelations. “According to information gathered under the RTI, as on December 18, 2020, 1072 cases relating to bail, and as on February 14 this year, 58 habeas corpus petitions were pending and waiting to be heard”.  Rekha Sharma goes on to list    cases on important issues like abrogation of Article 370, the Citizenship Amendment Act, against which 140 petitions were filed and were pending hearing. In the midst of such busy schedule, Ms Sharma adds, the Supreme Court finds time to initiate suo motu contempt proceedings against advocate Prashant Bhushan for an innocuous tweet.

Allahabad High Court, which has earned some unique fame, has been in the news in recent years, primarily due to the principled approach of its Chief Justice, Justice Govind Mathur, who retired in April 2021.  Just recently, on 12 June ‘22, he spoke against the bulldozing of houses by the Yogi Government and termed it “illegal”.   During a period of 3 years from January ’18 to December ’20, he had quashed 94 out of 120 verdicts given by 32 district magistrates under the UP Government, which were conspicuously against one particular community, apparently in obedience to the unwritten instructions from above.

An eight-member team from the Indian Express, led by Assistant Editor Apoorva Vishwanath, conducted an elaborate interview with Justice Mathur, which was published in its edition dated 17 May ’21.  Justice Mathur admitted his “guilt” about not taking to conclusion the hearings about CAA protests, criticised “liberal  use” of NSA and sedition law, expressed concern over the law and order situation in UP, and played down the Madras HC’s “murder” remark against Election Commission. Following quotes from what he said are indicative of his broad-minded and objective approach to the various issues worrying the principled citizens of our country:

“Our constitution is our Gita.  It is not only a political or legal document, it is a social document, which is required to be adopted by every citizen of this country, to make our society more civilized.”

“It is very easy to call any person anti-national….But I believe that 99.9% of the citizens of this country are committed to the nation.  They are patriots.”

“The allurement of being appointed as presiding officer of, say, the Human Rights Commission or any tribunal is very dangerous.  Judges should not accept it and Parliament should not make any provision for retired judges to be appointed as heads of any tribunal…..I am not going to accept any government assignment in the remaining part of my life.”

“Never. If I have an opportunity to go to Parliament by contesting an election, I will go, but not by nomination” (This was in reply to Apoorva’s question “Would you accept a nomination to Rajya Sabha).

“When you talk about the position of law order in Uttar Pradesh, I don’t think it is up to the mark…I am not saying things like there is jungle raj etc…But it is no less than that.”

Thus, there are judges and judges.  While some are disappointing, a few earn our admiration.  They are our hope. Let the judiciary shine in its glow. Justice Mathur, in the above-mentioned interview, says majority of the judges are good.  Let us hope he is right.

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