Demonetisation Riots? We Should All Worry When SC Talks Like A Kejriwal

Why do the Supreme Court’s latest actions not surprise anybody? Yesterday (18 November), Chief Justice of India (CJI) T S Thakur told us that the Collegium had sent back the 43 names rejected by the government for appointment as high court judges. That not even one of the objections made by the government was accepted tells us that the Collegium is into asserting its own untrammelled power, and not necessarily protecting the power balance mandated by the Constitution.

In another observation, this time over demonetisation, the CJI made injudicious remarks over the government’s inability (so far) to reduce queues outside bank branches seeking to exchange demonetised notes. "It is a serious issue. This affects the entire population. You (the government) cannot deny there is a serious problem. There could be riots,” The Times of India quoted the bench as observing.

Question: did the Supreme Court itself not cause huge inconvenience when it ordered that all buses must run on gas? Does it even today not cause untold hardship to citizens who have to wait years on end for court verdicts? Even assuming there is a shortage of judges, can the Supreme Court claim everything was hunky-dory before the current conflict between the judiciary and the executive over the memorandum of procedure slowed down the appointment of judges even further?

On demonetisation, there may be huge public inconvenience due to the government’s perceived failure to ensure quick replacement of old notes, but why was it necessary to suggest that riots could happen? Isn’t this the kind of irresponsible statement one would expect from an Arvind Kejriwal rather than the Chief Justice of India? When the top-most court talks of the possibility of riots, isn’t this almost like telling people that if riots happen, we may have to intervene?

Let’s assume that the government goofed badly (it certainly was not fully prepared for the crowds milling outside banks) in meeting the post-demonetisation challenge, and let us also presume that some people may be ready to riot, but isn’t that why the police are there? Even assuming there is rising public anger over the government’s handling of the issue, surely the public can punish the party in power at the next opportunity. How is it the Supreme Court’s job to judge whether the government has done right or wrong?

That the Supreme Court is more concerned about its own unchecked powers was demonstrated again last week when a bench comprising Justices Ranjan Gogoi, Prafulla Pant and U U Lalit issued contempt notices to former Supreme Court justice Markandey Katju for a highly critical blogpost. The blog said the court erred in not convicting a rapist for murder. The convicted rapist, Govindachamy, had raped Soumya on a moving train. Soumya either fell off the train by jumping or was pushed, but the bench relied entirely on a bystander’s comment that she jumped. But, surprise, the bystander is nowhere to be found. The decision to not convict Govindachamy for murder was based on two witnesses, who claimed to have heard the bystander saying she jumped.

The bench, whose ire was prompted by Katju’s blogpost (now removed), first invited the former judge to defend his views in court, and when he turned up and made his points emphatically, the court was further incensed and had escorted him out and issued a notice of contempt.

A P Shah, retired Chief Justice of the Delhi High Court, wrote in The Times of India that the contempt law is questionable “in a free society where criticism of the judiciary is inevitable. Judges have vast powers and people will not remain silent about the exercise of such powers. Just as decisions of other branches of government attract criticism, judicial decisions would also invite the same.”

He added: “The Supreme Court has held that for the judiciary to function effectively, the dignity and authority of the courts must be respected and protected at all costs. But the need to respect the ‘authority and dignity of the court’ is borrowed from a bygone era; it has no basis in a democratic system. The law of contempt should be employed only to enable the court to function, not to prevent criticism.”

Quite. If respect for authority is that important, why should the executive or the legislature not claim the same principle and privilege? The legislature does have this privilege, but does not use it as often as the courts, for legislators ultimately have to go back to the people to get elected. Democracy puts checks on elected representatives that it does not on unelected judges.

It is quite obvious from the above examples that the Supreme Court has lost its way. It is seeking legitimacy by repeatedly trying to foray into executive domain on populist issues, and wants to remain unaccountable by insisting on absolute powers to appoint judges – a system that no other democratic country countenances. It is one thing to ensure judicial independence, quite another to expropriate powers that were never given to it under the Constitution.

Can such a Supreme Court really uphold the Constitution in letter and spirit?