EDITORIALS

Supreme No More
A weakened judiciary bodes ill for the future of constitutional democracy.

W
ithout control over either the sword or the purse, enjoys the faith of the people only because it can reinforce the
the judiciary relies solely on the perception that it is a faith of the people on an everyday basis in the way it conducts
neutral, independent and impartial arbiter of disputes, itself. The dignity of the court rests not on the use of its powers
whether civil, criminal or constitutional, to function as such. It of contempt or the trappings of office, but in the way in which
8 NOVEMBER 18, 2017 vol lIi no 46 EPW Economic & Political Weekly

judges and lawyers conduct themselves and uphold the institu-
tion when faced with external challenges. Judges are held to
higher standards of conduct than civil servants and elected rep-
resentatives precisely because of this feature of the judiciary, and
when they fail to meet these standards, the institution suffers.
The recent actions of the Chief Justice of India (CJI), some
of the judges, and certain members of the bar have dragged the
institution of the Supreme Court of India to the nadir of its
integrity. In one short week, the spectre of judicial corruption at
the highest level was raised, judicial discipline was breached by
judges, the CJI made a mockery of the principle that no one
shall be a judge in their own cause, lawyers threatened and
intimidated those trying to hold the judges to account in court,
and finally a disreputable order that tries to interfere with the
course of an investigation was issued in the name of putting a
quietus to the whole issue. There is no other way to put it: the
Supreme Court as an institution has simply lost credibility.
Contrary to what the Courts order passed on 14 November
may suggest, the Medical Council of India (MCI) bribery case
raises grave doubts about the integrity of judges of the Supreme
Court, in the context of cases that were heard and decided by
the present CJI, Justice Dipak Misra. The Central Bureau of
Investigations inquiry is ongoing, and it is in the interest of the
public to know whether a body that has had such a shameful
track record of biased and botched investigations can do a
thorough job in the matter. The initial petition filed by the
Campaign for Judicial Accountability and Judicial Reforms
(CJAR) highlighted the possibility of this investigation being
used to pressure or defame judges and, therefore, called for a
court-ordered oversight of the same.
What followed were a series of misstepssome large, some
smallwhich ensured that the case turned into an ugly spec-
tacle that has permanently and irrevocably damaged the insti-
tution. As questionable as the second petition filed by advocate
Kamini Jaiswal may have been, and as debatable as was Justice
J Chelameswars order to refer it to a constitution bench, both
have been overshadowed by the much more problematic acts of
the CJI. Effectively, Justice Misra has asserted his power to
choose the roster, going against every notion of fairness and
the cardinal principles of natural justice. In its subsequent
Economic & Political Weekly EPW NOVEMBER 18, 2017 vol lIi no 46
EDITORIALS
order on 14 November, passed by a bench hand-picked by
him, the Supreme Court put his actions beyond question, with
little basis in law or good sense. Far from settling any doubts,
the CJIs actions in this matter only raise more troubling and
uncomfortable questions.
All of this highlights the deep divisions between the bench
and the bar, amongst the judges themselves, and within the bar
as well. These are not fissures that have opened up suddenly,
but have been building up over time. As the higher judiciary
expanded its powers and jurisdiction, but refused to open itself
up to greater scrutiny and accountability, the tensions were
bound to come out in the open. They have, and in the ugliest
way possible. There is deep distrust between all concerned and
the institution has suffered for it.
The hurry to paper over the cracks, as seen in the shoddy
efforts to give the CJI a clean chit, suggests that no real intro-
spection is forthcoming. The whispers about corruption in the
judiciary are only growing louder and its unwillingness to
confront this head-on only makes the situation worse. The last
decade alone has seen two high court judges face impeachment
and resign under a cloud, and one other judge still faces trial
over bribery allegations. A Delhi High Court judge, recently
transferred to the Allahabad High Court, is also under a cloud
since the Delhi High Court removed his son from his post in the
subordinate judiciary for possession of assets disproportionate
to known sources of income. It is no more a case of a few
black sheep, but one of institutional failure. The judiciary has
been unable, or unwilling, to face the rot within and stymied all
efforts at ensuring accountability externally.
These developments portend a bleak future for Indias consti-
tutional democracy. A weakened judiciary that enjoys neither
the respect of the other organs of government, nor the confi-
dence of the people cannot possibly hope to uphold constitu-
tional values and principles. Whether as an honest broker of
federal disputes, impartial arbiter of election disputes, or as the
defender of civil rights under the Constitution, the judiciarys
role is fundamental to the working of Indias Constitution. A
judiciary mired in corruption, intrigue, and nepotism can hope
to do none of these with any level of efficacy. The people of
India deserve much better.
9