Judiciary: The penultimate solace

God is the ultimate solace for the distressed in our country. And, given the status accorded to the judiciary, it is the penultimate solace. Entire country looks up to the Supreme Court for protecting their constitutional rights and for toning up our democracy, its muscles having been atrophied by the political establishment. As they had corrected themselves occasionally, the SC has also made amends to its own mistakes in the recent past. And in this forward-looking approach of transformation, the apex court has also raised the bar of expectations of people.

The Preamble of our Constitution itself passed through ups and downs. In 1960, on a Presidential reference in Berubari case, SC stated that the Preamble was not an integral part of our Indian Constitution and was thus not enforceable in a court of law. However, subsequently, in the 1973 Kesavananda case, it overruled earlier decisions and recognised that the Preamble may be used to interpret ambiguous areas of the Constitution where differing interpretations present themselves. However, later, in the 1995 case of Union Government vs LIC of India, the apex court set the matters at rest once and for all by holding the Preamble as an integral part of the Constitution. Law evolves as wisdom grows.

A senior judge of the SC once responded to the counsel of an appellant who pleaded, 'Your Honour, the ratio involved in my case is identical to the case Your Honour had decided earlier. Therefore, please give the orders in my favour.' The judge responded, 'No. I am wiser now.' There is nothing like an absolute judgement, which was also proved in a case of murder in Maharashtra. In this case, the trial court considered it as a rarest of rare cases and awarded death penalty to the accused, while the High Court acquitted them totally. But, the SC gave the life-sentence. There is no fourth court to give another judgement! The point is there are judges who are ready to admit mistakes and correct themselves.

Their openness to amends is evident in two recent cases. In an extraordinary kind of mea culpa, the SC reversed its verdict on six death row prisoners, not only freeing them but ordering compensation and pulling up the Maharashtra police, after they have suffered 16 years behind bars under the shadow of death, living in appalling conditions – some in solitary confinement. It was the crime of rape and murder of a woman and her teen-aged daughter. Now, with this judgement, the six of the nomadic tribe can breathe safely, while the real culprits have always been breathing and moving freely, raising questions about the systems of investigation, prosecution, trial and appeal. A question also arises whether the earlier judgement of the SC was a callous order.

There is yet another order that highlights the humanitarian approach, even at the cost of admitting their mistake. In this matter, the SC stayed its own order to evict more than a million forest-dwelling ST and other traditional forest dwellers. They were abruptly told to vacate the territory they had been living on for decades without legal rights and access to proper housing while eking out a living out of forest produce. How the court ruled in the first place to uproot such dispossessed people displays the apathy the legal system.

And then, the order of the SC referring the Ram Mandir dispute for court-monitored mediation in confidence for an out-of-the-court settlement is an attempt of high social responsibility. "We may decide a property dispute, but we are thinking more about healing relationships. The Ayodhya dispute was 'much more' than a mere property dispute. It has dragged on for decades. ... Even if there is one per cent chance of amicable resolution, it should be given a try," the apex court said.

With the trend set by the present dispensation of the SC, the country is looking forward to more of such corrections in the currently pending matters. One issue for adjudication before a constitutional bench is whether members of Parliament/Assemblies enjoy immunity from prosecution for taking bribes at the time of casting their vote during the confidence/no-confidence motion or during RS polls or whenever it necessitates voting in the House. The five-judge Constitution bench had by a 3-2 majority in the 1998 PV Narasimha Rao vs CBI case had held that MPs and MLAs enjoy immunity from criminal and civil proceedings for their actions while discharging their legislative duties, including for taking bribes to vote in Parliament or an Assembly. For the common man, the earlier judgement appears strange. Are these people more equal than the others? The Equality of Law in the Constitution envisages that no section of the society enjoys special privileges, and individuals are provided with adequate opportunities without any discrimination; all are equal before the law. Then, why this discrimination? Similarly, one wonders how these representatives who can spend millions in elections, can get an exemption from income tax for their pensions, while a small employee or a pensioner has to pay the tax. Strange are the ways of our democracy!

Now that there is a transformation in SC's thinking at this present juncture, people fondly expect that they would surely bring in transparency in the judicial system itself, right from their appointments, transfers, to disciplinary matters. Therefore, all eyes are on the issue before a constitutional bench whether the SC is bound to disclose information relating to appointment of judges under the RTI. In August 2017, a three-judge bench headed by the present CJI Ranjan Gogoi had referred the question of SC's obligation under the RTI to a five-judge Constitution bench. In this case, the Central Public Information Officer of the SC had filed an appeal in 2010, against the Delhi HC judgment, which had ruled that the top court was obliged to disclose information relating to its decisions. "Independence of judiciary forms part of basic structure of the Constitution. The independence of judicial and fundamental right to free speech and expression is of great value and both are required to be balanced. The current debate is a sign of a healthy nation. This debate on the Constitution involves great and fundamental issues," the bench had said at the time of reference to a larger bench.

Independence of Judiciary is what the entire country expects to have. People of the country were disturbed when the Central government was tossing the file of transfer of judges when it was proposed by the collegium of the Supreme Court. People were indeed angry that although collegium found him suitable, the Central government tried to put in several hurdles for the elevation of Justice KM Joseph, who had given an impartial judgement in Uttarakhand, quashing President's rule which was not palatable for the central BJP government. Along with independence and autonomy, comes the responsibility of accountability. At least the people of the country, who are the tax-payers, should have the right to know the wrongs within the system. The judgement in the present matter, therefore, acquires great importance. Similar is the issue of corruption within the judicial system which is a matter of great concern.

Questions arise whether judges can get away with the argument of 'wisdom' even in cases of misdemeanours. For example, the SC had to ask the Delhi High Court to handle the PIL filed by the NHRC in the matter of Hashimpura encounter in which 42 innocent Muslims were massacred by the UP police. Delhi High Court has clinching evidence to convict all the 16 policemen for life-sentence for murder, kidnapping, criminal conspiracy, and destruction of evidence under the Indian Penal Code. It is redeeming that they got the conviction they deserved, but it took full thirty years for the victims' families to get justice. The trial court acquitted them, in spite of having the clinching evidence which the Delhi High Court relied on now. The question in the public mind is why an exemplary action was not taken against the trial judge? Why is it not transparent? Will he get away with the plea of his wisdom, although there are overtones of corruption and influence in this matter? Unfortunately, corruption in the lower judiciary has become a fait accompli.

Similarly, the non-transparent enquiry against the former CJI KG Balakrishnan regarding his wealth, no-enquiry into the allegation of corruption against Justice Kharar made by Kaliko Phul, the former CM of Arunachal Pradesh, who wrote about it in his suicide note, etc., raise several doubts in public minds. A transparent action in cases of indiscipline and misdemeanours by the judges would only enhance the credibility of the judiciary. The voices raised in public by the present CJI, Justice Chalameswar and two more judges against the non-transparent way of allotting an important case to selective benches or judges should not go waste. As the law is evolving, the administrative processes also need change for the better. The country is hopeful that it would happen now.

Now that the Lokpal, with the chairman and some members with great judicial experience and knowledge of the nuances of misdemeanours within the judicial system, is in place, it would augur well for the country if they are empowered to look into any cases of corruption in higher judiciary, while at the same time corruption, if any, in Lokpal should be within the purview of the SC to handle.

(Dr N Dilip Kumar is a retired IPS officer and a former member of Public Grievances Commission, Delhi. The views expressed are strictly personal)