The Case of the Four Just Men

Is it not more urgent to investigate the four Supreme Court judges’ disquiet than to make noises of disapproval about their alleged breach of conduct?

Edgar Wallace, master of the thriller in his heyday, couldn’t himself have presided over a more thrilling outcome with his fictional Four Just Men than the one that was achieved through their press conference of January 12 by the real-life four just men – Justices Chelameswar, Gogoi, Lokur and Kurian Joseph.

To clarify, by ‘thrilling’ I do not mean ‘sensation-generating’; I mean ‘ethically inspiring’. Their act of collective disclosure is, in my view, a reflection of propriety, rightness, public-spiritedness and courage. Their decision should have come as a profoundly welcome event in the general atmosphere of bleakness that we as a country have been ploughing through. This is a bleakness compounded of intolerance, divisiveness, violence, secrecy and muteness wrought by either voluntary prudence or involuntary fear.

Instead, what we have in some dismayingly large measure is disapprobation of the judges’ act. This is reflected in various views of the following nature. One, that the judges should not have gone public. Two, that they should have sorted the matter ‘internally’. Three, that they have been guilty of shattering the citizen’s faith in the integrity of the Supreme Court. And four, that they have somehow seriously compromised the reputation and fair name of a major institutional pillar of this society’s civic architecture.

This sort of primly outraged self-righteousness is the hallmark of the well-bred person’s prioritisation of ‘correct manners’ over substantively right conduct. It is a prompt and no-nonsense rap-on-the-knuckles unleashed by the expert on public etiquette. To what end? Presumably as a corrective against an ungentlemanly break from the decorous conventions and protocols of being neither seen nor heard. At best, this sort of reaction is feeble and priggish (without, however, being harmless in moulding public opinion). At worst, the reaction smacks of timidity and opportunism cloaked as stern headmaster-ish unbendingness in the cause of upholding decent schoolboy conduct.

In any event, in terms of what is mannerly or not, is it particularly well-mannered to summarily instruct the judges to ‘settle the issue internally’? This must be seen in the light of the pains which the justices have taken to explain the rationale for their action. It should be obvious (if the judges’ credibility is not to be discounted wholesale), that they had tried – but failed – to make much headway with the chief justice of India. This should be plain both from the letter they sent the CJI and the deposition made by them at the press conference.

To insist that they should have addressed the issue at a full meeting of all 24 judges of the Supreme Court is again incomprehensible. It is these four senior judges who had a problem. Why should the validity of their point of view depend on the endorsement of it by all or even a majority of the remaining judges?

This is a particularly pertinent question to ask because it is often the case that intra-organisational divisions do not necessarily reflect genuine and principled differences of opinion. They may, instead, only reflect positions that are inspired by considerations of cautious self-protection. These are very common and well-known features of institutional functioning, from which no institution, including the judiciary, is exempt. It strikes one as being strangely obtuse and disingenuous to fail to see this.

Then there is the criticism that implicit in ‘going public’ was the judges’ determination to invite ‘the people’ to resolve the issue. This determination apparently took no note of the fact that it is the legislature, not the judiciary, that is elected by the people. The criticism may have some validity if we were to interpret the judges’ action as having been triggered by some instrumental objective of inviting direct public action in the matter. A more immediately plausible interpretation is that their action was triggered by the objective of doing what is intrinsically right. Doing right, in this case, is simply a matter of providing the requisite information to enable “…the world …[to]… construe according to its wits”, a sentiment attributed to Sir Thomas More in Robert Bolt’s play A Man for All Seasons.

‘Doing one’s duty’ might (or might not) have some beneficial instrumental effects, but often one does one’s duty simply because it is, in and of itself, right that one should do so.

In the present instance, there are sound moral reasons for the belief that it would be wrong, dishonest, and tantamount to acting under false pretences to withhold a certain item of knowledge from the public. This is the knowledge that the public’s faith in, and reliance on, an institution responsible for dispensing justice might be misplaced. (This would hold even in a situation in which the public has its own suspicions as to the truth). It is additionally possible, of course, that doing what is ‘right’ might also have implications for eliciting actions that are ‘good’. A particularly important ‘good’, in the present case, would emanate from the media pursuing the leads offered by the judges on aspects of possible judicial misconduct. The media, after all, is supposed to welcome invitations to investigate the truth and reveal it! What we have, instead, is elements of the media castigating the judges.

Surely, the scandal is not in the formal revealing of a widely suspected truth, but in the truth itself? Without prejudging the latter, there is at least a case in favour of allowing for its existence in the manner projected, for assessing its probable status in terms of other known and related facts.

For instance, Caravan Magazine has an exceptionally detailed report on the circumstances surrounding the death of Justice Loya who was hearing the Sohrabuddin ‘fake encounter’ case in a Maharashtra court at the time of his death in December 2014. Is it not more urgent to investigate the judges’ disquiet against such a background than to make (sometimes intemperately ranting) noises of disapproval about the Judges’ alleged breach of good conduct?

The secrecy that shrouds domestic violence is frequently justified on the grounds that a household’s private affairs are no business of the public. The same logic apparently finds favour with those who hold the judges’ disclosures against them. Apart from anything else, the Supreme Court is not a family! And, if institutions such as the court and the bureaucracy have often conducted themselves like families – of which the mafia is a good example – in which members must observe the rules of loyalty, secrecy and mutual protection, then is this the sort of practice that deserves continued support and upholding?
The view that the judges have betrayed the public’s faith in the purity and the sanctity of the court takes a very dim view of the peoples’ resources of intelligence and their powers of endurance. It is part of the everyday existential reality of our compatriots’ lives that the forces of law, order and justice routinely betray them.

At a general level, the judges’ ‘revelations’ are unlikely to shock the people out of some touchingly innocent and life-sustaining faith they are supposed to have in the judiciary’s purity of intent and practice. Equally, our dour and long-suffering people are unlikely to lack the sturdiness required to withstand such an onslaught upon their simple beliefs. And if this is not the case, it would surely be cruel to continue to mislead them with a silence which may well be compatible with good manners but is also complicit with wrong-doing.

Knowledge is said to empower people. That is a major (even if not only) reason why a free media is a paramount necessity for a reasonably functioning democracy. It is therefore, finally, disappointing and angering that so much of the criticism laid at the judges’ feet for ‘going public’ in the matter has come, precisely, from the media! It is as if the media were to say: ‘We are the champions of Truth, Transparency and Accountability – but be warned that we do not necessarily welcome, or approve of, your sharing information with us! You make easy presumptions about the media’s independence only at your own peril!’ It seems to be important, at this juncture, to say to the media: ‘Ye are the salt of the earth: but if the salt have lost his savour, wherewith shall it be salted?.’

The author is an economist, independent researcher, former National Fellow of the Indian Council of Social Science Research, and a retired Professor of the Madras Institute of Development Studies.