Aditya Sinha: The real travesty of justice

Updated: Apr 23, 2018, 05:56 IST | Aditya Sinha

These are dark days, not because impeachment is becoming a political weapon, but because of all the institutional failures that led up to this

Congress leaders Ghulam Nabi Azad and Kapil Sibal, along with CPI’s D Raja and KTS Tulsi, address the media after opposition parties submitted a notice to initiate impeachment proceedings against CJI Dipak Misra, in New Delhi on Friday. Pic/PTI
Congress leaders Ghulam Nabi Azad and Kapil Sibal, along with CPI's D Raja and KTS Tulsi, address the media after opposition parties submitted a notice to initiate impeachment proceedings against CJI Dipak Misra, in New Delhi on Friday. Pic/PTI

Aditya SinhaThis week, it seemed as if the last institution that held India's faith was demolished. True, many lost faith in the judiciary's lower tiers long back, partially due to the case backlog that made running to courts a nightmare, but also because of visible corruption. The quality in lower courts is suspect. The Allahabad High Court confirmed these suspicions last October when it overturned the CBI court's 2013 verdict in the 2008 Aarushi murder case; it also called the earlier verdict poorly written. (The case has reached the Supreme Court in appeal, so perhaps the Allahabad HC will experience deja vu.)

The Supreme Court was long the "last bastion standing", despite occasional blips like V Ramaswami, the first SC judge the government in 1993 tried to impeach (it failed). If the SC remained unblemished, it is possibly because its decisions were seen as sound in law and above the politics of the day. Senior lawyers and jurists question neither judgments nor the Justices' probity.

Most judges begin their careers as lawyers, many of whom now openly self-identify with the ruling party. What can be said when lawyers of the Kathua Bar Association protest in support of the men accused of raping and murdering an eight-year-old nomad, brutally, in January - and then tried to stop the chargesheet from being filed in court. (That she was raped was established medically even before the J&K police was involved in the case.) They are no better than the lawyers who in February 2016 descended on Delhi's Patiala House courts on the day of the hearing of a sedition case against JNU's Kanhaiya Kumar, and like goons, thrashed teachers, students and even journalists. As a crime reporter in 1988, I was present when Indu Arora, accused of burning to death her two infant children, was brought to court. Lawyers stood and muttered filthy abuse against the magistrate while she meticulously went through the chargesheet and other papers. One could argue that such behaviour is an aberration, though you rarely hear of disciplinary action against such guttersnipe.

Things have changed. Senior lawyers have supported the Opposition's notice last week to impeach Chief Justice of India Deepak Misra. Though the turmoil in the higher judiciary was ongoing (internally, a letter of protest was submitted to the CJI last October), it only became public in January when four senior judges - including the seniormost after the CJI, Justice J Chelameshwar, and the expected next CJI, Justice Ranjan Gogoi - aired their anguish with Justice Misra. They focussed on the CJI's poor allocation of cases under the "master of roster" system, but the sub-text apparently was their fear that the CJI was going to torpedo a petition seeking an independent probe into the mysterious December 2014 death of Judge BH Loya, who was hearing the Sohrabuddin extra-judicial murder case, in which BJP chief Amit Shah was accused of being a conspirator.

That fear came true. The SC dismissed the petition, saying there was nothing suspicious about Judge Loya's death. This is a travesty: 22 investigative stories by Caravan magazine, which began after Judge Loya's own family raised suspicions, at least introduce doubt that needed to be cleared. The SC then went and accused the petitioners of intending to bring the judiciary into disrepute, and that their conduct amounted to contempt of court (though they smartly did not punish the petitioners for contempt, as that would have opened a bigger can of worms).

Finance minister Arun Jaitley got a chance to lambast the Opposition for using impeachment as a political tool, forgetting his own role in the Ramaswami episode. The Opposition, spearheaded by the Congress party, went ahead with the notice, though it is likely to be dismissed by the Vice-President, who is also the Rajya Sabha's chairman. They did this after much deliberation. Former Prime Minister, Dr Manmohan Singh was against the notice, as were some former Congress law ministers like Veerappa Moily. But if it went ahead, there is a reason.

The notice came none too soon. Last week was momentous in judicial decisions that filled public-minded citizens with despair. Maya Kodnani, whom eye-witnesses saw take active part in the 2002 post-Godhra riots, was freed by the Gujarat HC. The Delhi HC gagged the media from reporting on the FIR filed against former Orissa HC judge IM Quddusi; the four justices felt the CJI should have recused himself from this case.

Senior jurist Fali Nariman is correct when he says it is a dark moment for India, but not because impeachment is becoming a political weapon. It is a dark moment because the judicial canopy of our democratic republic has tumbled down. It is no coincidence that so many of our institutions are crumbling, all subordinate to the will of one man. It is textbook fascism.

Aditya Sinha's book, The Spy Chronicles (HarperCollinsIndia), is out next month. He tweets @autumnshade. Send your feedback to mailbag@mid-day.com

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