THE USUAL SUSPECTS

Flashback to September 2018, the Chief Justice of India designate,

as he then was, dismissed a “public interest” petition filed by Admiral
Ramdas, challenging the appointment of the Chief Vigilance
Commissioner. As per media reports, while dismissing the petition, the CJI
designate had remarked - “PILs are for the poor”. Mr. Bhushan, the lawyer
for Ramdas, evidently protested, alleging that a whole line of judgments
and Chief Justices have not adopted this approach. The then CJI designate
finally brushed off the arguments and denied to interfere under PIL
jurisdiction on the ground that affected parties must approach courts.
Lingering in the background were murmurs about such template petitions,
wherein any and every appointment of the governments is challenged in
court in the name of “public interest”, but is often instigated by officers
who had been overlooked for that very appointment. This practical
approach PILs of the then incoming CJI, clearly ruffled a few feathers. The
person of interest, at the time, was the outgoing Chief Justice, who had a
different, more interventionist approach to PILs. Despite the same, Justice
Misra, faced an impeachment motion, amidst the controversies
surrounding the master of the roster.
The acerbic, often uninformed criticism from a particular quarter,
that shadowed the tenure of Justice Misra, continued with the current
Chief Justice in a different form. This is symptomatic, at a particular level,
of certain institutional and inherent issues with the functioning of the
Supreme Court itself, and at the other, of a particular class of
intelligentsia, which seeks to deny independent functioning of the Court.
The modus operandi of this class is ingenious but simple - camouflage a
vested interest or a starkly ideological position as the only possible
outcome in a legal issue and peddle in through blogs, articles, opinions. As
is often the case, the assertions in such articles have little factual basis
and specifically ignore the legal arguments of the other side. As and when
such article gain traction, they take shape of “public interest” litigations,
which either have select coterie of NGOs or five-star activists, as
petitioners in a purportedly representative capacity. The same set of
lawyers, often connected to the original blogger, argue the said PILs in
Courts. The judges who fall prey to this, whether unknowingly or
deliberately, are in return celebrated as upright, honest and brave, the
judges who don’t, suffer the fate of the J. Misra or the current Chief
Justice. If and when the opinions of judges do not coincide, the same
bloggers, writers and lawyers, often deliberately shorn of the facts and
precedents, castigate judges and their judgments. Unfortunately, the
same class is unwittingly quoted by judges in certain judgments, perhaps
seeking affirmation.
This begs the question, why should the judges manning a high
constitutional office be concerned with such opinions of “private
persons”? To be fair, this is a fairly recent phenomenon and largely a
function of deep access this class has in the mainstream intelligentsia.
Also, due to the precedent based system of common law, judges are
fiercely protective of their “legacy”. The self-imposed barometer of
success in world of unquantifiables like the judiciary, is the “respect” or
“image” of the judge. Such intangible and unquantifiable factors,
therefore become the achilles heel of judges.
As and when judges, decline to participate in this subversion, this
machinery kicks in to gear. The political tool of impeachment, the
purported master of roster controversy, the so called failure of due-
process in the sexual harassment allegations, the recusal controversies,
even after being utterly unsuccessful, hurt judges at their most vulnerable
spot. Judges are not a part of the political arena of point v. counter-point
on TV debates and cannot counter any allegations in public. With the
constant self-imposed weakening of the power of contempt, the Judges
are left powerless even if wild baseless allegations they are made with
malice. The legacy and image they so crave is damaged irrevocably
damaging carefully crafted reputations through decades. The
“independent” criticism therefore becomes a farce, in an attempt to brow-
beat judges to toe the line or face public embarrassment and a troubled
legacy.
 The pervasive presence of this elite clique in the high echelons as
opinion makers, leave little scope for independence or disagreement. The
approach is “my way or the highway” wherein judges who fail to cater to
particular vested interests or ideological biases, face an all too familiar
fate. The incoming Chief Justice, perhaps in an attempt to hint at this,
correctly stated that a certain section exercises the fundamental right to
freedom of speech far too much than the other. This reminds one of the
prophetic lines of senior advocate Harish Salve during the fag end of the
arguments in the Loya case. Mr. Salve, after the entire arguments on
merits had been canvassed, almost as an elderly statesman of the bar,
warned the judges of this same approach. Mr Salve, after referring to the
rhetoric and its role during legal arguments, in the context of wild
baseless allegations on judges of the lower judiciary and the High Court,
exclaimed – “today, in an attempt to hurt one particular politician, they
have attacked everyone that they have found in their way, tomorrow,
after you give the judgment, they will attack you.” Unsurprisingly, a day
after the judgment, an impeachment motion was moved against J. Misra
and J. Chandrachud, otherwise the darling of this clique, was castigated
across forums. Fast-forward a year, history has repeated itself albeit in a
different context. The present chief justice and the discourse surrounding
his legacy, is directly a function of his no-nonsense approach in motivated
PILs. It is hoped however, that alacrity and brievity of his judgments, his
unflinching approach in hearing otherwise untouched matters and his
practical approach in judicial appointments, is what defines his legacy.