By K. Raveendran
With the ‘murder of democracy’ in the Karnataka Assembly having been averted, thanks to a midnight intervention of the Supreme Court, and a joint JDS-Congress government under H D Kumaraswamy duly installed in place of BJP, it may now be time to revisit the developments in the court and take a closer look at the underlying legal principles invoked in the unusual court intervention.
The previous occasion when a bench of the apex court held an early morning session was in 2015 to clear to the execution of 1993 Mumbai terror accused Yakub Memon, which a certain section of people still believe amounted to murder of democracy, and this time the milestone sitting was held to prevent what all non-BJP Opposition parties consider as the real murder of democracy in Karnataka. Curiously, both the unearthly hour sittings involved Justice Dipak Mishra, first as one of the three judges on the bench that heard Memon’s petition, and in the present case as the Chief Justice ordering the constitution of a similar bench. The former was not avoidable, but doubts have been expressed about the latter.
Themis, the Greek goddess of divine justice, who is depicted as a blind-folded lady carrying scales in one hand and a sword in the other, is the ultimate symbol for the delivery of justice. The blind-folding is to emphasise she is not influenced by anything that goes on around her; she goes only by the law and her own divine power of insight. So, judges in the classical mould are not supposed to be influenced by anything other than the substantive law points and the evidence brought before them. If they listen to public opinion, the fear is that their judgment will get clouded and justice will likely to go astray. And if they listen to politicians, guaranteed that the law will go to the dogs, as that is where politics is going. There is no statue of Lady Justice in the Supreme Court of India, although it is a common sight in many courts around the world. In front of the Indian Supreme Court, however, there is a stylised statue of a mother and child, which means almost the same as the lady justice: protection of the weak.
Whether Justice Misra has a penchant for court sittings well past midnight is a different issue, but there are many intricacies in the trial of the murder of democracy case that need to be explored. The midnight court sitting and the decision came barely 24 hours after Congress president Rahul Gandhi, in his wisdom, or perhaps more due to lack of it, orchestrated a damning attack on the Indian judiciary bracketing it with Pakistan’s. He also said that the judges were scared of Modi and the dictatorial ways of his government, citing the situation which forced the four seniormost judges to go before the people. The burden of his argument was that the fetters have incapacitated the judiciary, affecting its independence and integrity. But curiously, within a day of his making the allegation, Rahul Gandhi was forced to make a u-turn and hail the Supreme Court as it put paid to the BJP’s hopes of ‘manufacturing’ a majority. The Congress president couldn’t have missed feeling embarrassed about his outbursts only a day before. Whether the midnight court sitting and the decision, which should have surprised even Rahul and his party, were the court’s way of calling his bluff, one does not know.
This column had expressed the view that to overcome the top court’s credibility gap and the trust deficit caused by a vertical division in the benches in view of a series of disturbing events in recent past, the judges will have to prove their ability to take decisions that are contrary to their known positions. Karnataka’s was truly one such verdict, helping Congress, which had targetted the Establishment group and the Chief Justice for a selective onslaught, to walk away with major ‘collateral’ benefits. On the other hand, it went against the interests of the government, which the Chief Justice has been seen upholding all the time.
The verdict has given the Chief Justice an opportunity to get even with Congress, which had initiated a move to impeach him on several counts, including illegal gratification. Two of its counsels had challenged, unsuccessfully though, the decision of Vice President Venkaiah Naidu to reject the impeachment notice given by Congress MPs in a petition that was once again ‘arranged’ to come up before one of the preferred benches. The Congress counsels had to withdraw their plea in frustration as all their moves got checkmated. It was the same set of counsels who brought the Karnataka petition, but this time the results were dramatically different. The most noteworthy occurrence that separated the two verdicts was, of course, Rahul Gandhi’s blistering attack.
Whether the Karnataka democracy murder case was decided purely on the basis of substantive law or whether other considerations also got weighed in is an issue that will remain open for discussion for a long time to come. It may also have set a bad precedent, which may be in keeping with the current state of affairs, but not in conformity with the lofty principles that one generally associates the highest court of the land with. Hopefully, the final word has not been said.(IPA Service)
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