On 12 January, 2018, four prominent judges of the Supreme Court – Ranjan Gogoi, J Chelameswar, Madan B Lokur and Kurian Joseph – held a press conference, the first time in the history of independent India. Essentially, what the judges were saying is that an unconventional bacteria has entered the system of the body of the scale. The iconic symbol of a blindfolded woman holding the scales is no more blindfolded; she knows how high the scales need to be held, and where the weight should be put more. The judges were muted, not a traditional press conference of the politicians. It was muted because they were doing something unprecedented in the post-colonial history of India. The idea of judicial dissent was never brought out in the open. It was normally allowed and contained within the sacred precincts of the court. The second point which came out from the conference is that the judge, as B R Ambedkar had identified long back, is that the judge whether the Chief Justice or his subordinates, is as human in his sentiments and emotions as any common man, and that he has become a victim of the same in a manner which is unbecoming of his position and the expectations associated with his position. In other words, if one of these four judges was a character in Shakespeare's King Lear, he would have easily said:
tremble, thou wretch,
That hast within thee undivulged crimes
Unwhipped of justice.
They hinted at a crime which was being perpetrated in the highest portal of justice in India. The Chief Justice of India was the indirect recipient of the blame. Like a King of the past he allotted cases according to his sweet will, and not as per the modern principles of jurisprudence and the existing conventions of the Supreme Court. The "bench fixing" occurred; in other words, the Chief Justice "the first among equals" tried to be the first among unequals and made arbitrary decisions. It was peculiar that junior judges were given cases of the most sensitive nature involving high profile figures of the Indian political system. The hint of course was to the Sohrabuddin Fake encounter case, which was linked to the BJP President, Amit Shah. One of the four judges actually referred to the name of Judge Loya who was pursuing that case involving Amit Shah. Mr. Loya died in "mysterious" circumstances. In terms of daring and setting the scales straight, this press conference mirrors the courage of another judge across the border.
Doctrine of Necessity
Justice Iftikhar Muhammad Chaudhury returned to the Supreme Court of Pakistan on a wave of public sympathy for the judiciary. On his return he gave expression to an unprecedented judicial dissent when he mooted the Law of Necessity. Justice Muhammad Munir had given legal support to the idea of the law of necessity. Way back in 1954, when the Constituent Assembly of Pakistan had been dismissed by the Governor General, Justice Munir had given endorsement to this decision by citing the law of necessity. That is, there may come a time when extra-constitutional measures may be taken in the interests of the nation. That judgment had widespread implications for the future of the nation. That was a sort of judicial coup in favour of extra-constitutional authorities. One of the terrible blunders in the history of Pakistan.
The dictatorships which ensued in the fate of that nation drew legitimacy from the law of necessity. Ayub Khan, Yahya Khan, Zia ul Haq and Musharraf can be traced to that fateful year. The sanctity of Parliament and civilian leaders was eroded by the invocation of the Roman Law of necessity. When Iftikhar Chaudhury came back to office, he officially suppressed that law, and restored the civilian authority, and claimed that the law of necessity stands buried in May 2009. No doubt, the civilian leadership is sent packing (peacefully) yet the clarion call of defeat of a legal instrument which had eaten into the health of the democratic institutions had been emphatically sounded. It was a landmark ruling in favour of rule of law and for establishing the writ of the constitutional norms.
While there is a long list of compliant judges who complied with the law of necessity, Iftikhar Chaudhury using the weapon of the mass support declared a war on his own institution. It was an evisceration which was long overdue. History stood corrected, and writ of the constitution centered, a document which is rooted in the sovereign will of the people.
Covert law of necessity
No Indian judge has given a ruling like that of the law of necessity. However, the current Chief Justice, as can be deduced from the press conference of the four judges, is covertly without legal sanction trying to invoke the necessity of orienting nation in a particular direction with the help of steps he has allegedly taken. The notion of bench-fixing is actually an attempt at nation-fixing, with a hidden belief in the necessity. The Executive overreach is reflected in the "rumour" of bench-fixing. The revolt of the four judges not within the courtroom but out in the public shows the urgency of the matter, and the extent to which the judiciary is subjecting itself to the wishes and whims of the Executive.
The judges warned that the threat to democracy is immense if corrective measures are not taken immediately. It redounds to their credit that they are foresaw a threat to the evolution of the post-colonial nation. The cases of bench-fixing may not be changed but the courage of the four judges will be remembered for a long time to come, when people will look back at the history of this important pillar of democracy. The press conference is as much about introspection as it is about the importance of impartial justice.