Mischief, thou art afoothttps://indianexpress.com/article/opinion/columns/mischief-thou-art-afoot-4606668/

Mischief, thou art afoot

Supreme Court has been under attack, from within and without. It has more than held its own

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Supreme Court (File Photo)

The last few months have been extraordinary for the Supreme Court. Rarely has it had to face the invective and calumny that have been leveled against it at the hands of those very individuals meant to uphold its hoary traditions.

Markandey Katju, formerly of the court himself, was first off the blocks, with several ill-advised blog posts making a mockery of senior judges. If it had not been for the firmness with which this was dealt, lesser mortals would have perceived the court’s silence as a license (pardon the anagram) to slander.

If this were not enough, as Chief Justice T.S. Thakur’s tenure wound to a close, a slow whisper campaign had commenced in the corridors of the court — the government would get Justice J. Chelameswar to succeed, it said, superseding both Justices J.S. Khehar and Dipal Mishra who preceded him. The rumour mill was clearly ignorant of law and fact. The government no longer had that power, with the successor now being recommended by the outgoing Chief Justice, a change from those heady days of the Seventies when Mrs Gandhi had engineered two supersessions.

In any case, Justice Chelameswar is no effete soul. One of the court’s finest minds with a legacy of impeccable integrity, if any such misadventure were to be attempted, he would spurn it with disdain. Most importantly, the canard attempted to divide the court on the premise that judicial verdicts had political undertones. It was clearly meant to cleave the institution.

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Within two weeks came a direct attack on Justice Khehar’s candidature for CJI in the form of two petitions filed during the court’s winter vacation, claiming that he was a beneficiary of the judgment upholding the collegium system and should be hence overlooked (a claim that had already been rejected by the Constitution Bench). In any case, even the late NJAC Act provided for the next senior-most judge to succeed to the high chair. Mercifully, both petitions were rejected by the court.

If Chief Justice Khehar had expected a placid tenure, he was in for a surprise. Cue l’affaire C.S. Karnan, his personal appearance in a neighbouring courtroom, complaints about the abuse he showered on his colleagues, the letter signed by 21 of them seeking his transfer and the extraordinary order passed by him staying his own transfer. One would have expected the government to initiate the impeachment process, so that the judiciary would not be further embarrassed.

One would be wrong. The only explanation for the government’s silence (apart from pleasure at the court’s discomfiture) is that Karnan invoked the Dalit card, claiming often that he was being targeted for his caste, thereby scaring away any political opposition to his continuance as a judge. As a result, the court, in an unprecedented move, constituted a bench of its seven senior-most judges who first withdrew Karnan’s judicial powers and then issued a bailable warrant to him when he failed to answer summons.

Soon thereafter, at the end of the Chief Justice’s first month in the saddle, he received a request from the widow of the late Kalikho Pul, former Chief Minister of Arunachal Pradesh, seeking permission for the registration of a corruption FIR on the basis of a 60-page note allegedly typed by Pul before his death, but unearthed six months later. The late CM’s widow admitted in the letter that the note had first “surfaced in the media” and provided no details of its provenance or veracity. It was a stark coincidence that the note sought to impugn the reputation of the very two judges who were rumoured to be superseded.

Much was made of the fact that the Chief Justice had listed the letter for a judicial hearing when only an administrative permission was mandated. The critics overlooked a crucial fact: If the note was found to be false or forged, who would be liable? No action could be taken on the administrative side, as it was a mere epistle with no legal sanctity. Thus, the only way the court could pin responsibility is by inviting a court hearing whereby those relying on the letter would be guilty of perjury and false evidence if the letter was found to be phony. The widow advised her lawyers to withdraw, but not before an assault was made on the presiding judge, demanding his recusal. More was to follow, with online portals carrying the counsel’s intemperate imputations against all the judges involved. Rather than be piqued by the irritant, the court moved on. But barely.

Come the Ides of March, and a brief report in a national daily, that the collegium had arrived at a consensus on the Memorandum of Procedure (MoP) for judicial appointments by sorting out the “national security” clause, led to a tizzy. Those trolling the court were at the forefront of the hysteria, proclaiming that the collegium had “compromised” and even violated its own NJAC judgment by allowing a government veto on this count. One periodical went so far as to express dismay by proclaiming the “patient dead”.

As the events of the last few days have shown, the collegium had in fact stood resolute and rejected the government’s veto demand on national security. It was yet another stinging rebuke to the pitiable few who had kept up their assault on the court.

What next, I wonder? It is possible that the court’s opponents are driving the judges to make that famous Adlai Stevenson bargain: “If they will stop telling lies about us, we will stop telling the truth about them”.

Perish the thought. Not on their watch. Not on ours.

The writer is advocate, Supreme Court of India