Are these rumbles of discontent coming together?

Jawed Naqvi in The Dawn

A PEOPLE’S movement is underway in Israel against its ultra right-wing government. Prime Minister Netanyahu is trying to subvert the judiciary’s neutrality, with a selfish aim to kill the criminal cases hanging over his head and that of his colleagues. In quite a few democracies, the judiciary is or has been under assault from the right wing for similar reasons. India is witnessing it in unsubtle ways. Pakistan too has seen political interference with the judiciary at least since the hanging of Bhutto. Then Nawaz Sharif and Gen Musharraf, vicious to each other, took turns to undermine the courts. Pakistan, however, has seen mass movements too that have thrown out military dictators and restored democracy even if intermittently. Where’s that old fire in the belly for India?

Describing the unprecedented attack on India’s democracy starkly at a Cambridge University talk is one thing. Few Indian politicians are capable of speaking with conviction without a teleprompter as Rahul Gandhi recently did before an enlightened audience, while also making plenty of sense. But just as he was holding forth — at a talk called ‘Learning to listen in the 21st century’ — two unrelated landmark events were unfolding in Turkiye and Israel. Was he listening to them too?

The events might send any struggling democratic opposition to the drawing board. In Turkiye, a last-minute collapse of the alliance of six disparate parties, preparing to challenge President Recep Tayyip Erdogan’s re-election in May, holds a lesson for any less-than-solid political alliance about possible ambush on the eve of an assured victory. Equally instructive was the opposition’s ability to bury its differences promptly, something that eludes India. The Turkish groups have made compromises with each other so that their common goal to defeat Erdogan remains paramount. There are good chances they would succeed, but even if they don’t, it won’t be for want of giving their best to restore Turkiye’s secular democracy.

However, it was the coming out of Israel’s air force pilots to join the swarming protests against the Netanyahu government that is truly remarkable, and unprecedented. These pilots are usually adept at bombing vulnerable neighbourhoods, including Palestinian quarters. But their taking a stand in defence of democracy offers a lesson to every country with a strong military. There were rumblings in India once. Jaya Prak­ash Narayan, the mass leader opposed Indira Gandhi’s authoritarian patch and called for the army and the police to disobey her, an unusual quest but an utterly democratic call when democracy itself is being murdered. The RSS had supported the JP movement. The boot today is on the other foot. Does the Indian opposition have the conviction to follow in JP’s footsteps to take on Prime Minister Narendra Modi? Does it at all feel the dire need to make sacrifices and compromises to rescue and heal the wounded nation?

The Israeli government may or may not succeed in neutralising the supreme court, which it has set out to do. But the masses are out on the streets to act when their nation is in peril. And India cannot exist as a nation without democracy. Secular democracy enshrined in its constitution binds it into a whole.

Rahul Gandhi has evolved as a contender for any challenging job that could help save the Indian republic from its approaching destruction. But he should also have a chat with Prof Amartya Sen perhaps who was quoted recently as saying that Mamata Bannerjee would make a good prime minister. Others have their hats in the ring. Gandhi’s talk in the hallowed portals of Cambridge bonded nicely with his 4,000-kilometre walk recently, from the southern tip of India to what is effectively the garrison area of Jammu and Kashmir. No harm if the walk served as a learning curve for the Gandhi scion, but even better if it were a precursor for a mass upsurge as is happening elsewhere, and which has seen successful outcomes in many Latin American and African states.

Rahul Gandhi spoke about the surveillance, which opposition politicians and journalists among others have been illegally put under. His points about deep-seated corruption, that shows up graphically as crony capitalism, are all well taken. Few can match the feat of mass contact across the country that he displayed recently and his declamation at the world’s premier university. The point is that Cambridge University cannot change the oppressive government in India. Only the Indian opposition can. Rahul Gandhi has the credentials to weld mutually suspicious opposition parties into a force to usher in the needed change.

There’s no dearth of issues to unite the people and the parties. To cite one, call out the BJP-backed ruling alliances in north-eastern states where its supporters assert their right to eat beef. And place it along the two Muslim boys incinerated in a jeep near Delhi by alleged cow vigilantes. The criminality and the hypocrisy of it.

The fascist assault on India’s judiciary is an issue waiting to be taken up for nationwide mobilisation. The assault comes at a time when the new chief justice is one with a mind of his own. Judges have stopped accepting official briefs in sealed envelopes as had become the practice, dodging public scrutiny, say, in the controversial warplanes deal with France. The court has set up a probe into the Adani affair, something unthinkable until recently.

The timing of the vicious criticism of the judiciary is noteworthy. The law minister described the judges as unelected individuals, perhaps implying they were answerable to the elected parliament like any other bureaucrat. This is mischievous. The supreme court set new transparent principles in the appointment of election commissioners. It’s a rap on the knuckles of an unholy system. Could anyone call it a fair election in a secular democracy when people are nefariously polarised and the election commission looks the other way? The questions are best answered by opposition parties, preferably in unison.

The mess in India’s higher judiciary is, sadly, of its own making

The judiciary has become cocooned while being the supreme force for transparency elsewhere. The complainant against CJI Gogoi has laid bare this hypocrisy writes Shekhar Gupta in The Print

Most of today’s judges on the Supreme Court bench were in their thirties on 7 May 1997 when, famously, the full court sat and issued a 16-point declaration called Restatement of Values of Judicial Life. That year was the 50th anniversary of our Independence. You can find the full text here.

Twenty years on, we should check if our most hallowed institution has lived up to it.

You might begin with the question: Why is it that the Supreme Court of India has been making headlines for controversies than for good news? The current Chief Justice of India, Ranjan Gogoi, as his two immediate predecessors, Justices Dipak Misra and J.S. Khehar, have faced crippling controversies. The two before them cadged convenient sarkari sinecures. One of these, regrettably, in a Raj Bhavan.

Khehar was “mentioned” in the diaries of dead Arunachal chief minister Kalikho Pul. Dipak Misra first faced an unprecedented joint press conference by his four senior-most colleagues, protesting what they saw as his high-handedness and lack of institutional democracy, and then an impeachment threat by the opposition. The ‘sexual harassment’ crisis facing Justice Gogoi now is the gravest.

Let’s presume that each of these was spotless and targeted by interested parties. But we simply cannot defend none of them facing any scrutiny. Mostly, it happened because there was no procedure, mechanism or institution for such an inquiry. And where there is one, the Internal Complaints Committee for Sexual Harassment under the Vishakha Guidelines laid down by the highest court, the matter has been referred to a specially constituted committee of SC judges first, which the complainant has rejected.

Here are the three key reasons our judiciary has dug itself into a deep hole. First, its insistence on ducking inconvenient questions by invoking stature and reputation. This means there’s never closure on any issue. Second, that while the court lectures us on transparency, it remains India’s most opaque institution. And third, there is no mechanism, even a council of respected elders, which could step in when a crisis of credibility or internal distrust became evident.

Parliament had tried to create the National Judicial Accountability Commission exactly for such situations, but the court struck it down 4-1 as unconstitutional. Three of the judges who served on that bench (including Chelameswar, the lone dissenter) figured in the four-judge press conference in Gogoi’s company. 

Since Gogoi was the most senior among the four and the only one still in the chair, he needs to reflect on how his institution ended up here. Why is his Supreme Court looking like a big, flailing body oozing blood from a dozen, mostly self-inflicted cuts? And piranhas of various kinds are lurking.

It’s a tragedy when Supreme Court judges complain that they are victims of conspiracies. How did this most powerful institution, which is supposed to protect us and give us justice, become so vulnerable that busybody conspirators can threaten it? If it is so weak, where will we citizens go for justice?

The CJI’s office is a most exalted one. It is also possible that, as he and his brother judges in that most avoidable Saturday morning outburst indicated, there indeed is a conspiracy to undermine him. The Chief Justice of India deserves the fullest protection against interested parties throwing muck at him. But exactly the same principle should also apply to the complainant and the underdog.

Justice Gogoi and colleagues erred gravely in holding that peremptory Saturday morning sitting and pre-judging her case. Subsequent repairwork is now lost in the thickening murkiness, with an activist lawyer popping up with conspiracy theories. What these precisely are, we don’t know, because he has submitted them in a sealed cover. 

The sealed cover has now become a defining metaphor for the last of the three big mistakes the court has made: Making itself the most opaque institution while preaching transparency from the Republic’s highest pulpit. Here is an indicative list. In the Rafale case, the government’s evidence is in a sealed envelope, as indeed are all the reports of the officer in-charge of the NRC process in Assam. In former CBI chief Alok Verma’s case the CVC report remains in a sealed cover, as do NIA’s reports in the Hadiya ‘conversion’ case.
The SC order to political parties to submit details of their donors to the EC is the latest example of this quaint judicial doctrine of the sealed cover. You might understand need for secrecy in a rare case. But if even the compensation for the assorted retirees heading the court-appointed Committee of Administrators of Indian cricket remains in a sealed cover for three years, it’s fair to ask why the court should be hiding behind secrecy when its entire BCCI excursion was about transparency.

Opacity is comforting. You can so easily get used to it. The SC protects RTI for us, but claims immunity for itself. Only seven of 27 SC judges have disclosed their assets. There is no transparency or disclosure of the collegium proceedings, or even explanation when it changes its mind on an appointment. Shouldn’t you have the right to know exactly how many special and empowered committees the court has set up, mostly as a result of PILs, their members—especially retirees—and compensations? If the executive hid such information from you, you’d go to the courts. Where do you go against the Supreme Court?
Judges are wise people. It follows that top judges should be among the wisest of all. They must reflect on the consequences of their making the judiciary an insulated and cocooned institution while being the supreme force for transparency and disclosure elsewhere. It is this contradiction and hypocrisy that the complainant against the CJI has laid bare. That’s why the court is looking unsure.

Read that 16th and last point in that 1997 Restatement of Values of Judicial Life: ‘Every judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.’

The Supreme Court’s refuge in opacity does not live up to this principle. An institutional reset and retreat are called for here. Of course, while both the complainant and the CJI get justice.