Real Heroes Are The Insiders Who Speak From Within The System: Indira Jaising

Terming the press conference held by four senior Supreme Court judges on the 12^th of January historic, senior advocate Indira Jaising has said the real heroes are the insiders who speak from within the system for its reformation. She drew parallels from the likes of Edward Snowden, who fight systemic decay from within. The activist-lawyer was speaking in Kochi in the ‘Hot Seat’ event organized by the All-India Professionals Congress on the topic “Judiciary: Vanguard of Democracy”, hosted by Dr. Mathew Kuzhalnadan, the state president of AIPC.  The underlying theme of her talk was the need to protect judicial independence from the overarching influence of the executive, and to preserve constitutional values from the assault by new breed of “poisonous” majoritarianism.

According to her, the press conference made by the senior judges showed loss of confidence in the administration of the Supreme Court by the CJI. It was a historic moment because, for the first time, criticism emerged from within, vindicating the stand taken by several lawyers, activists and civil society members that all was not well with the Supreme Court. If the functioning of the Supreme Court in its administrative capacity is compromised, its impact will be felt in its functioning in a judicial capacity as well.

Cherry-picking of judges hits at the heart of judicial independence

The recent issue of Centre’s non-approval of the collegium recommendation of Justice KM Joseph was highlighted by her.  “The government cannot pick and chose judges from the list forwarded by the Collegium of Judges. The collegium is not a search committee which forwards a list of names from which the government can select a person,” she said. According to her, such cherry-picking hits at the heart of the independence of judiciary. She recollected that the erstwhile CJI RM Lodha had responded assertively when the present government had attempted to block the elevation of Gopal Subramanium by segregating him from the list approved by collegium. However, the Supreme Court did not respond positively to the petition moved by her against the appointment of Indu Malhotra alone excluding Justice KM Joseph, thereby missing an opportunity to assert judicial independence.

RS Chairman has no jurisdiction to judge merits of impeachment motion

On the order passed by Rajya Sabha Chairman Venkaiah Naidu rejecting the impeachment motion moved against the CJI, she said the Chairman has no jurisdiction to sit in judgment over the merits of the allegations in the impeachment motion. The summary rejection sabotaged a parliamentary process. She narrated the prompt manner in which the erstwhile CJI Sabyasachi Mukharji responded to her letter revealing acts of financial impropriety by ex-judge V Ramaswami.  Justice Mukherji dictated an order in the open court, in the presence of the Attorney General, SCBA president and herself, suspending judicial work of the judge facing allegations, and directed the government to take action.

Loya case verdict unfortunate

Upon being asked about the manner in which the Supreme Court passed the verdict in Loya case, she said the Supreme Court was not in a position to conclude that the death of judge Loya happened due to natural causes. The documents and statements could not have been treated as evidence without being put to cross-examination. The court did not act fairly by foreclosing all questions relating to the death of judge Loya. She hoped that the Supreme Court will one day “eat its words” in Loya case as it had to do with respect to the settlement of criminal cases made in the Union Carbide case.

Pre-condition for collapse of judiciary is the collapse of bar

She lamented that the bar, which is supposed to act as a check on the excesses of the bench, has failed to rise to the occasion to preserve constitutional ideals. “Pre-condition for collapse of judiciary is the collapse of bar,” she remarked. The incident of some lawyers in Jammu preventing the filing of charge-sheet in the Kathua rape-murder case was very shocking. She also narrated the unruly nature of proceedings which happened in the Supreme Court on November 10, when the CJI-bench was hearing the petition in medical college bribery case.  Several lawyers who had no connection with the case had assembled in the court room, and with the connivance of the office bearers of SCBA and also with the encouragement from the bench, they heckled the petitioner’s counsel.

She said a deep polarisation has happened in the bar due to the influence of Hindutva politics, and its poison has entered even the courtrooms, vitiating the sense of peace and mutual respect in the bar among professional opponents.

“The Hindutva issue has poisoned public debate to such an extent that this entire poison has entered the Court room,” she said.

 Sexualisation of the atmosphere in court

Responding to a question regarding the sexualisation of atmosphere in court where women lawyers experience gender barriers ranging from sexual harassment to unsolicited patronisation, Jaising stated that male chauvinism is deep-rooted in the system. The court, as a work-place, is riddled with misogyny and chauvinism. Sexual harassment was a “dirty secret” of the judiciary. However, one has to fight such barriers and biases. “We have to fight it,” she said.

Constitution is to protect the minorities

 “Constitution is to protect the minorities. Minority need not be on the basis of religion or language.  One can be a minority in ideas as well,” she said on asked about the tendency of majoritarian sentiments to trump democratic values.

“There is a move to create a Hindutva state. The attack on minorities and Dalits, the instances of cow vigilantism etc., are indicators. There is an attempt to translate this into law as well,” she commented. Therefore, there was a need to protect the basic values of the Constitution from the onslaught of majoritarian sentiments.

Her powerful and passionate talk brimmed with idealism and righteous indignation. Despite seeing the worst failures of the system, she remains an optimist and a resolute fighter, striving to uphold humanistic values.