The Supreme Court of India (SCI) has had a stellar reputation amongst the apex courts of the Commonwealth. It is always in the news; it is in the news again. But this time, unfortunately for India, it is in the news for the wrong reasons--about its internal turmoil. Four senior Judges have made public the letter they had sent to the Chief Justice of India (CJI) Dipak Misra about his management of the court and its roster. He is being accused of rendering "opaque justice", establishing the Constitution Benches that unfairly and inappropriately include or exclude certain judges and allocating cases on a "selective basis". The selective allocation of cases is alleged to have happened even in former CJI Khehr's time as well.
The four judges who went public with their letter to the CJI say "all is not well with the court". They have argued democracy is endangered unless the integrity of the SCI as an institution is preserved. The letter deals with legitimate concerns about the fair and appropriate composition of the benches as well as the making of the roster. The issues are technical in nature but go the heart of the principle that processes need to be transparent, just and beyond reproach. The principle that justice not only need be done but also seen to be done must not only apply to the hearings and the decisions of the court, it must also apply to how the roster is made and benches are constituted, the four publicly speaking judges say. One couldn't agree more.
From afar I have been watching the workings of the SCI for some time, not as a lawyer but as a political activist and a commentator. In February 2017 during the tenure of CJI Khehr I had noticed the Collegium of which Khehr was a member had recommended one Hemant Gupta for a state chief justiceship. At the time I used to write a regular online column for the Indian Express. The Express refused to publish a column I had written as" it might be held in contempt", it argued. I checked with a couple of my very able friends highly learned in Indian law. On the state of the Indian law on contempt of court they agreed with the Express. But my question was and still is why is it a contempt of court to justifiably criticise a judgement or an administrative action of the Court? It is not so in Britain or Canada. Why is this relic of colonialism still muzzling the citizens of free India? The Indian law on contempt of court and criminal libel violates the spirit and letter of the Indian Constitution that guarantees all its citizens right of free expression. The freedom of expression includes a citizen's right to respectfully disagree with any court's judicial and administrative actions and pronouncements.
The current controversy of the four judges publicly airing their grievances about the CJI has laid bare the deep rot in the Court that wasn't so clearly visible when I had written the unpublished column. Now it is there for all to see. The CJI and the entire Supreme Court must proceed with great caution lest it loses the credibility and integrity that is paramount for people of India to once again fully trust it.
My column written for the Indian Express had remained unpublished to-date. Now that the SCI's dysfunction and internecine disagreements and feuds have witnessed an unprecedented public eruption it is timely and appropriate to share with you what I had previously written. I stand by every word of what I had said then about the politics, politicians, and the Supreme Court of India. I believe every citizen of India has the right to do what I am doing by publishing my so far unpublished column. Others may disagree with my position. That is what democracy is. So with some minor changes here is the column that never got published in the Indian Express:
February 7, 2017
Title: The Chief Justice of India Must Resign
Sub Title: By nominating the disgraced Hemant Gupta for a state Chief Justiceship, the Chief Justice of India and the Collegium have brought the judiciary into total disrepute!
The Indian polity is drowning in corruption. Most politicians are corrupt. Quite a number of them are criminals facing serious charges before the courts. Most political parties are guilty of running a significant number of candidates with criminal records and cases hanging over their heads. Most of the civil servants are completely uncivil and corrupt. Many of the cadres of the IPS, IAS, IFS, and numerous other federal and state services are busy-- just like the politicians, robbers, and thieves--accumulating wealth by hook or by crook. The corruption and its deadly poison of unethicality, amorality, and immorality have seeped deep into the vitals of each and every aspect of India's life. This much is incontestable except by the human ostriches with their heads in the murky and corrosive sand dunes of denial.
In this chaos of corruption and crime the upper echelons of the Indian judiciary, in particular the Supreme Court of India has stood as a beacon of some hope and integrity. That is why it was absolutely shocking to discover the name of Judge Hemant Gupta in the Collegium's recommended list of the nine new chief justices of the state High Courts. Since 2015 Gupta had been publicly known to have been embroiled in a controversy about calling the Enforcement Directorate investigator assigned to a money laundering case. For some time now he himself has been under investigation by the ED in the same case. According to an ED report, Justice Gupta and his wife have been "identified as associates and beneficiaries in the process of money laundering through structuring of shell companies." His mother's name also figures in the investigation.
But India and Indians expected different and better from the Collegium headed by none other than the Chief Justice of India-- the Chief Justice of the Supreme Court of India. The other members of the Collegium are also from the judiciary. That is why it was disturbing to find Gupta's name in the recommended list of nominees for the Chief Justiceships of different states; and that too despite the wide public knowledge and reporting of the money laundering investigation involving him for over a year.
One is compelled to ask: Is nothing clean in India anymore? Is nothing sacrosanct any longer? Not even the Chief Justiceship of an Indian state? The Collegium's list demands a prompt and thorough investigation --perhaps by three former chief justices of the Supreme Court--as to how Gupta's name crept into the Collegium's list and stayed despite the serious questions raised by the ED regarding his role in the money laundering case. How did the Chief Justice of India and other collegiates miss a matter as serious as the money laundering investigation against Gupta? Did they not ask for reports from different agencies on the names before they were placed on the list? Do they ever read the newspapers? Do they ever talk to any others from their fraternity many of whom must have known of the facts publicly known about the investigation? Or did they believe rules about ethics apply only to those who appear before them?
This is a grave matter. The inclusion of Gupta in the list of recommended nominees for state chief justiceship is a colossal error of judgement on the part of the members of the Collegium. It has brought the nomination process followed by the Collegium and the members of the Collegium itself into total disrepute. To restore the fullest possible confidence in the process of screening and nomination of judges, the whole Collegium, including the Chief Justice of India, must immediately resign--not just from the Collegium but also from their respective judicial positions.
Indians know that the country's politics and many of its politicians are corrupt. They are also aware that the lower rungs of their judiciary are by and large corrupt. That is why they mustn't allow the upper echelons of India's judiciary to go the way of its politics --into the gutter.