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PIL industry commands ‘Thou shall not decide against our vested interests’: Will the Lordships finally say ‘thus far and no further’?

Why should and till what time the judges manning the highest constitutional office of the country be concerned with opinions of such handful of vicious “private persons”?

Flashback to September 2018, the Chief Justice of India designate Justice Ranjan Gogoi, as he then was, dismissed a “public interest” petition filed in the name of Admiral Ramdas, challenging the appointment of the Chief Vigilance Commissioner. As per media reports, while dismissing the petition, the CJI designate had brought the correct PIL route back to track by remarking – “PILs are for the poor”. Mr Prashant Bhushan, the lawyer for Ramdas, evidently protested, alleging that a whole line of judgments in past has not adopted this approach. The then CJI designate finally boldly brushed off the arguments and denied to interfere under PIL jurisdiction.

Lingering in the background were very audible murmurs about such template petitions, wherein any and every appointment of the governments used to be challenged in court in the garb of “public interest”, often inspired, instigated and even financed by either the officers who had been overlooked for that very appointment or by other vested interests. This judicious approach of the then-incoming CJI with regard to fake PILs, clearly ruffled a few feathers and the people surviving on such motivated litigations felt threatened.

However, the ‘person of interest’, at that time, was then outgoing Chief Justice, who had a different, more interventionist approach to PILs. Despite the same, Justice Dipak Misra, faced an impeachment motion, amidst the controversies surrounding his role as the master of the roster. The acerbic, often uninformed criticism from a particular quarter, that shadowed the tenure of earlier Chief Justice of India Justice Dipak Misra, continued with the current Chief Justice though 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 self-styled pseudo intelligentsia, which make all-out efforts to deny independent functioning to the Supreme Court of the country.

Read: The Judiciary and its inconsistencies when it comes to the principles of Freedom of Expression

The modus operandi of this class is ingenious but simple – camouflage a vested interest, political interest, business interest or a stark ideological position as the only possible outcome in a legal issue and peddle the same through motivated blogs, tweets, facebook posts, engineered articles etc. As is often the case, the assertions in such blogs and articles have a little factual basis and purposefully ignore any other possible view. As and when such “vehicles of thoughts” gains traction, they would be given the shape of “public interest” litigations, which either have select coterie of “rent a cause” NGOs or five-star activists [often receiving crores from shady global donations], as petitioners, in a purportedly representative capacity though it rarely remain secret as to whom they “represent”. The same set of lawyers, often connected to the original twitter handle, blogger or author of the article argue the said PILs in Courts.

As and when judges decline to participate in this subversion, this machinery and their machinations, kick into gear. The judges who fall prey to this, often unknowingly, are celebrated by this coterie as upright, honest and brave judges.  If and when the opinions of judges do not coincide, the same “social media activists” bloggers, writers and lawyers, often deliberately and mischievously, shorn of the facts and precedents, castigate such judges and their judgments with impunity. Thus, the judges who do not succumb, suffer humiliation through unwarranted, irresponsible and false allegations on social media platforms.

Read: ‘Warned in 2014 that they will use Judiciary to destabilise government’: Harish Salve slams Congress

This begs the question, why should and till what time the judges manning the highest constitutional office of the country be concerned with opinions of such handful of vicious “private persons”?

The self-imposed barometer of success in a world of unquantifiables like the judiciary is the “respect” or “image” of a judge which perhaps is the only asset a Judge earns in his entire judicial career. Such intangible and unquantifiable factors, therefore become the Achilles Heel of judges. Also, due to the precedent-based system of common law, judges are fiercely protective of their “legacy” and rightly so. 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, though remain utterly unsuccessful, hurt the 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. Judges have to maintain the majesty of their office.

With the constant self-imposed weakening of the power of contempt, the Judges are left powerless even if wild and baseless allegations are made by such vested interests with malice and an identifiable agenda. The legacy and image judges so relish as the only “saving” they have in their life’s balance sheet earned during their entire judicial career is damaged irrevocably thereby irretrievably damaging their carefully protected reputation through decades of sacrifice. The “independent” criticism, therefore, becomes a farce in an attempt to brow-beat judges to toe the line or face public embarrassment, personal accusations and a troubled legacy. To be fair, this is a fairly recent phenomenon and largely due to a desperate attempt of this class to continue to have deep access in the mainstream and intelligentsia.

The pervasive presence of this elite clique in social media, leave little scope for independence or disagreement. The approach is “my way or the highway” wherein judges who fail to cater to such vested interests or ideological biases, face an all too familiar fate. The incoming Chief Justice, perhaps in an attempt to hint at this, very 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 one such “public interest” 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 and baseless allegations on the judges, 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.” As we all know, his prophecy did not remain unfulfilled and materialised soon.

Fast-forward a year. History is seen repeating itself albeit in a different context. The present Chief Justice-Justice Gogoi and the discourse surrounding his legacy is the direct a result of his “no-nonsense approach” in motivated PILs. The scorn with this approach, this clique is out in the open with the set template – “Thou shall not decide against our vested interests”. It is hoped, however; that what will define his legacy will be the alacrity and brevity of his judgments, his unflinching approach in hearing otherwise untouched matters and his practical approach in judicial appointments.

The question which remained unanswered so far is, will the Court – as a collective institution – take up this challenge and send a message, loud and clear, “thus far and no further”. Will this great institution prefer to bend before the nuisance value created by such social parasites based upon their willingness to stoop to any level, or send the message that enough is enough.  Will the please Your Lordships to do that?

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Amit Kelkar
a Pune based IT professional with keen interest in politics

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