Several thoughts assail a citizen’s anguished mind. For one, the recent judgment of the Supreme Court in Asok Pande case is entirely on expected line, only worse compounded by a poor philosophical foundation of its logic. For another, one wonders if this quick judgment is aimed at preempting and nullifying the Bhusan’s application that has raised some fundamental questions of legal practices, not to speak of moral and ethical issues.
There are moral and ethical issues in this case. For the CJI – whose acts of allocating cases had prompted the 4 senior-most judges of the apex court to go public with their anguish – to head this bench to hear the matter rather than recuse himself is the most fundamental. “Nemo iudex in causa sua” – no person shall be a judge in his own cause, goes the well-known judicial principle of natural justice. This proves the very erroneousness of the basic foundation of arguments adduced in the judgment to dismiss the petition. The logic is flawed because it is invalid. How much this streak of immense folly runs through the argument is evidenced from the fact that the arguments lasted for less than five minutes, and far from dismissing the petition “in limine”, the judgment was reserved, and judgment delivered without any notice issued to the respondents. Public perception of suspicion on events unfolding in the apex court shall haunt us for all times: Was the pronouncement of the judgment made in double-quick time (within two days of five minutes hearing) aimed at forestalling Shanti Bhusan’s petition’s outcome, which though submitted around Pande’s petition wasn’t registered, numbered, listed and heard till April 13, 2018? Or, will this judgment become the newest threshold to determine Shanti Bhusan’s petition’s outcome, much as the instant judgment leans on the Supreme Court’s hurriedly ordered constitution bench’s judgment of November 10, 2017?
Beyond impugning the basic tenets of legal juridical foundations on “natural justice” and “conflict of interest”, the judgment per se also bristles with fundamental weaknesses on the scaffolding that makes democracy the best available human construct yet: separation of power, checks and balances, rule of law. The judgment deems entrustment and vesting of powers on the CJI as axiomatic and beyond human doubting, let alone questioning – and tempered with supreme, new-falutin divinity. To wit: “The authority which is conferred upon the Chief Justice, it must be remembered, is vested in a high constitutional functionary. The authority is entrusted to the Chief Justice because such an entrustment of functions is necessary for the efficient transaction of the administrative and judicial work of the Court”. Add the lines “In the allocation of cases and the constitution of benches the Chief Justice has an exclusive prerogative. As a repository of constitutional trust, the Chief Justice is an institution in himself” and the egregiousness of axioms are complete. The absolutism attributed to Louis XIV of France “I am the State” (‘L’État, c’est moi”) in the late 17th and early 18th centuries could be apocryphal, but the absolutism conferred in the 21th century by the highest court of the land is for real!
The coup de grâce of the judgment’s rationale comes a touch later though. “The entrustment of functions to the Chief Justice as the head of the institution is with the purpose of securing the position of the Supreme Court as an independent safeguard for the preservation of personal liberty.” Read the next two utterly presumptuous misjudgments: “There cannot be a presumption of mistrust” and “The oath of office demands nothing less.” If only the same held true of the oath of office of all other holders of constitutional offices, we would be living in a paradise with no need of oversight countervailing bodies!
Clearly, divinity with its benediction is in full play here. Their Lordships have invoked divine benediction and blessings to take the failings off a normal possessive individualist man to the realm of the astral, and to posit certain select humans from time to time to be blessed with this transcendental sheen. It is just as well to remember that it’s this innate inexorable human nature that prompted the early man to codify a social contract, today best exemplified in the term “rule of law”. Granting blind immunity to the CJI on administrative matters, especially in times of RTI, when other state organs and personalities (the Prime Minister not excepted) are rightfully hauled over the coal in their public functions, betrays poor philosophical foundations of economic and political reality. More when the words of Thomas Fuller, the 17th-century English churchman and historian, “Be you ever so high, the law is above you” has been apotheosized and is on every citizen’s lips.
I guess even a George Curzon would turn in his grave and blanch at the inadequacies of his own egotistical presumptions: “I am George Nathaniel Curzon, a very superior person”. Sadly, aside from its innate weaknesses of poor logic and delusion of grandeur to invest divine certitude and omnipotence on select juridical pantheon(s), the judgment fails to take into account the nation’s prevalent mood and ground reality, and the wired world we inhabit.
Justice Robert H Jackson’s prescient words in the United States versus Wunderlich that men are more often bribed by their loyalties and ambitions than by money couldn’t be more apt than now. Intellectual dishonesty is insidiously debilitating and way harder to guard against. The reason we need to be more vigilant.
One foresees greater disquiet and turmoil in the foreseeable future in an India that already is in ferment. We look up to the Supreme Court to uphold our rights and liberty by the strict invocation of the rule of law and constitutional values; it is far too revered an institution to be trifled with. Its wellness shall determine the wellness of India's governance architecture and India's democracy. Clearly, the matter is a battle of accountability/transparency vs. inhered feudal arrogance/opacity, of the constitutional separation of power/checks and balances/intellectual honesty/openness vs. conflation of power/nepotism/cloying cronyism, of the status quoists/hidebound conservatives vs. neo-Indian foot soldiers/passionate proponents of existential realism. The dialectics inevitably, even inexorably, shall play out with equal vehemence on both sides of the divide for quite awhile in this battle of attrition.
Plurality, equality, fairness, time-tested conventions, judicial morality, transparency, rule of law are all germane to any modern democracy in a world corralled by internet highway. If these traits are absent or vitiated, it shall strike at the very root to diminish democracy. Much as opacity has to make way for transparency, feudal hidebound Indian hierarchical order must give way to logic, nous, and smarts. Sadly, this judgment is far from edifying – not for the present, doubtless not for the future.
Mr Sudhansu Mohanty is a former bureaucrat who among the many assignments worked as the Additional Secretary & Financial Advisor in the Ministry of Environment, Forests and Climate Change, and then on promotion as Controller General of Defence Accounts and thereafter as Financial Advisor, Defence Services in the Ministry of Defence before retiring on May 31, 2016.