Never has India's judiciary been under the kind of strain we witnessed last week when four Supreme Court judges effectively came out against the Chief Justice of India, ostensibly on procedural issues. There is no clear evidence of wilful impropriety on either side but a weekend on social media is enough to see the sad fact that the independent judiciary is being measured through political prisms. Not since the resignation of three SC judges during the Emergency, when they were superseded to the post of the Chief Justice of India during Mrs Indira Gandhi's reign as prime minister, has the judiciary witnessed such tumult.
The whole thing is so complex, that it reminded me of the tales of King Vikramaditya and his ghostly companion of dubious virtue, Vetal (Betaal). These were tales of wisdom for rulers, focusing often on tricky situations and moral dilemmas. So I decided to write a tale inspired by the Supreme Court crisis. Be informed it is only fiction and the characters are fictional. And draw your own perspectives. Like an abstract, modern art painting, this is for you to figure out.
* * *
Vikram grabbed the corpse-like Betaal from the tree and started his silent march to attain occult power, when Betaal giggled as usual and said: "Today I want to tell you not a tale from the past but one from the future, when judges of a country challenged their own chief, in a time when it is not the king but independent judges pronounce verdicts and hold their society together as nobles and merchants join ordinary subjects in choosing their rulers."
And so the tale began.
* * *
The Chief Justice of India, due to retire in two weeks, is about to deliver a verdict on a man accused of aiding a terrorist attack when he receives an anonymous call, threatening harm to his wife if his verdict confirmed a death sentence given by the lower courts. The CJI is in a dilemma. He does not know who issued the threat and whether it is real but he fears for his wife's safety. After all, she is the one who stood by him as he delivered a series of perfect judgements in the public interest, never worrying about what others said. On the other hand, if his verdict was influenced by the threat, he would be failing in his duty. Strangely, he had already written a verdict acquitting the accused because the evidence against him was more circumstantial conjecture than real and under the principles of democratic jurisprudence, he could not give the benefit of the doubt to the prosecution. However, he thought, if the threat had come from comrades of the accused, he would be setting a bad precedent of allowing blackmailers to influence the judiciary.
Now, one of his junior judges had gone to the same boarding school as one of the influential cabinet ministers, and this had already complicated perceptions in the coffee houses of the country.
The CJI thought hard about all the judges serving in his council and looked at his own responsibilities as defined by guidelines. He decided then to change the duty roster of various judges.
To a judge who was a media favourite for ruling in favour of woman victims and corruption in sport, he allocated a nondescript case on cooperative banking.
To a judge who was said to be close to the cabinet minister, he allocated a case that involved allegations of impropriety in loans given to the minister's family company.
To the judge who was due to succeed him, he allocated a political case that would embarrass the ruling party if the verdict went against it.
To a fourth judge, who was known for labour cases, he allotted a patent case that was out of his normal specialisation.
The CJI went off on a weekend holiday to a mountain resort where cellphone signals were not easy to catch and switched off his phone. Now, the judges in question were outraged and met over some filter coffee at the residence of one, and in the best traditions of the judiciary, decided to act on the hard fact that one of the judges had gone to the same school as an accused minister. The entire business of roster changes seemed uncomfortable for them. They called a press conference and protested against the CJI's arbitrary ways, underlining the "first among equals" principle at the highest level of the judiciary.
The CJI returned from his vacation to find that his roster change had snowballed into a political controversy. He immediately sent his resignation to the President of India, saying his integrity was being questioned and public perceptions were important. The President, a wise old man, sent back the resignation for reconsideration, saying it was equally important for him, the President, to not accept a resignation while he was bound by cabinet advice, as that would be seen as the executive interfering in the independent judiciary.
Meanwhile, bar councils across India and the Supreme Court Bar Association rose up to underline the independence of the judiciary and demanded that issues be discussed at a full meeting of all sitting Supreme Court judges. The CJI readily complied and said it was for the council in its wisdom to decide what to do next. But he posed some questions: "What, gentlemen and ladies, is the meaning of the word "first" when put alongside equals? What added privilege or responsibility does it entail? Will I be failing in my duty if I did not take the words seriously? And what evidence do we have to suggest that a judge should not examine a case involving his schoolmate when there were hundreds in his time who were his schoolmates?"
The judges, in the best traditions of the judiciary, in their collective wisdom, agreed that innuendos do not amount to evidence, though there were murmurs all around. Under pressure from the bar associations, they also decided it was not proper to invite any executive interference. They told the CJI that rosters must be made in line with procedures and conventions.
Now, the CJI said: "If conventions alone mattered, we would be riding horses and not motor cars. If there was no special meaning attached to the word "first" or "chief" there would be no need to have the title such as I do. I would be failing in my duty towards the letter and spirit of the law as I see it, and hence I resign."
The President of India was now forced to accept the resignation. After all, only one more week was left for the end of the CJI's term and everything was now a technicality.
What would happen to pending verdicts? The CJI opined that both the roster and the collective wisdom of the judiciary mattered and hence left it to his successor and the judges' council. Now, his successor was known to be a hardliner on national security issues. The judges' council in its collective wisdom decided that serious cases must be considered by larger benches. The terrorism case was opened again to a large bench, while a panel of senior judges was appointed to revisit procedures and conventions on why and how cases must be allocated so that neither individual biases nor individual specialisation was ignored in allocation of cases.
The CJI retired a happy man.
Now, Betaal asked King Vikram: Was the CJI right? Or were the judges right? Was justice done and delivered?
Replied King Vikram: "The CJI did the right thing because judges have their duties in their personal lives and as common citizens as well. By making things vague, he left the matter to the God above and the wise men below. He also made sure whoever issued the threat did not have his way."
"The President did well to insulate himself from the judiciary because that would damage the image of the party he came from.
"The judges only adhered to established conventions and were rightly concerned about propriety. Bound by the chatter of the bar associations and the CJI, they were rightly talked into contemplating on issues going beyond conventions so that a higher sense of justice would prevail.
"Those who issued the threats would never find out what really happened because whatever the CJI did was seen as part of his wider duties and not influenced by threats.
"The terrorism case rightfully deserved a larger bench and it was better for the judges' council to set the conditions for this than a diktat from above because the media had become shrill and stupid.
"Above all, the CJI retired in peace because he had done all his duties well as much as an individual could, and the institution of the judiciary was only maturing through his actions."
On hearing Vikram's response, Betaal replied: "Your comprehensive sense of justice is remarkable but you have shattered the peace of this place. So I have to leave you."
Betaal then laughed out loud, rose up and looked for a tree but realised it had travelled in time to tell its tale better. It found itself near Pragati Maidan from where it could get a good view of the Supreme Court of India. Not finding a tree easily in the concrete jungle, it swooped down only to see a dark night over the venue where the World Book Fair was on. It picked up a book at random and sat atop a skyscraper before heading to its familiar tree in the past. The book was one by Gabriel Garcia Marquez.
(Madhavan Narayanan is a senior journalist who has covered politics, diplomacy, business, technology and other subjects in a long career that has spanned organisations including Reuters, Business Standard and Hindustan Times. He is currently an independent columnist, editor and commentator. He is listed among the top 200 Indian influencers on Twitter. He tweets as @madversity.)
(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL.)