It is time we think of introducing a provision in the Constitution that would guarantee Supreme Court judges the same salary and perks on superannuation that they were entitled to in service.
Such a provision, though, should also bar them from accepting appointments following their retirement, including to bodies such as the National Human Rights Commission.
This should forever efface from public consciousness the suspicion that Supreme Court judges tailor their verdicts to satisfy the requirements of the party in power, or articulate views echoing its ideology. Regardless of the attempts to insulate the judiciary from the inimical influence of the government, a miasma of suspicion will always arise from judicial pronouncements and initiatives as long as sinecures can be offered – and accepted.
It is this suspicion which has had the gossip-loving city of Delhi speculate furiously why the Chief Justice of India, HL Dattu, decided to hold a conference on Good Friday, or why Prime Minister Narendra Modi chose to caution judges from the influence of what he described as “five-star activists”, or why the two Supreme Court judges, SJ Mukhopadhaya and NV Ramana, had breached the bounds of propriety in inviting Modi to the weddings of their children.
Context is key
Decisions and actions acquire meanings other than intended because of the contexts in which they are taken. This is best illustrated through an examination of the precedents Chief Justice Dattu cited to justify holding the conference on Good Friday. The Chief Justices’ Conference, he told advocate Lily Thomas in an open court, had been earlier held on Valmiki Day in 2007 and on Independence Day in 2009.
In a tone of disquiet, even hurt, Chief Justice Dattu said, “In 2007 and 2009, nobody had any grievance. What happened to spirituality back then?” The answer to his question is indeed simple – nobody had any grievance in 2007 and 2009 because the socio-political context then was remarkably different from that of 2015.
Remember the decision to observe Good Governance Day on Christmas last year. A good many government officials attended office on the day which has always been a holiday in India’s post-Independence history. This backdrop can’t but have us empathise with Justice Kurian Joseph, who wrote a ‘letter of protest’ to the Chief Justice as also an explanatory missive to the Prime Minister for skipping the dinner he hosted for the judges on Easter.
Really, would you seriously fault Justice Joseph for believing a hierarchy of holy holidays was being tacitly created? This is the point he hammered in his letter to Modi: “Your good self would kindly appreciate that no important programmes are held during sacred and auspicious days of Diwali, Dussehra, Holi, Eid, Bakrid, etc, though we have holidays during that period as well."
In case the import of his statement was lost, Justice Joseph cited the persecution of Zoroastrians in Iran, their escape to India, and the subsequent increase in their population here. “The reason this could happen here is that the Indian Hindu rulers of those times not only accepted but protected them,” Justice Joseph observed tellingly.
In alluding to the Hindu-ness of protective Indian rulers of the yore, Justice Joseph was presumably pointing to the minatory attacks on the Christian community over the past several months. From dastardly attacks on Churches to the menacing ghar wapsi programmes to observing Good Governance Day on Christmas, the Christians, quite understandably, ought to be worried over their status in India, a point poignantly made by India’s iconic police officer, Julio Ribiero. Without violating judicial propriety, Justice Joseph too was expressing grief, and acute discomfort, at the Indian state’s attitude to his community.
Raised eyebrows
The importance of context framing issues has been lost out on those who have wondered why Justice Joseph did not raise objections in November when the decision to schedule the conference on Good Friday was taken. But the campaign against Christians hadn’t acquired ominous dimensions then, mistakenly dismissed as stray incidents involving the lunatic Hindutva fringe which would be quickly brought under control.
Not only did their campaign turn insidious and persistent, it seemed the Modi government was winking at them through its decision to choose Christmas for promoting good governance. Perhaps this is why Justice Joseph belatedly decided to make an issue of convening the conference on Good Friday.
Obviously, this commentary doesn’t ascribe ulterior motives to Chief Justice Dattu. However, it might break his heart to know that many construe his decision to hold the conference on Good Friday as an unwitting endorsement of the Modi government’s ostensible disregard of certain days considered sacred by Christians. No doubt, this is an uncharitable interpretation, not the least because a solitary decision can’t reflect a person’s ideological inclination.
Yet this uncharitable interpretation of Chief Justice Dattu’s decision, too, can be fathomed in the context of the Modi government appointing the former chief justice of India, P Sathasivam, as the governor of Kerala last year. This had raised eyebrows as it was for the first time a former chief justice of the Supreme Court had accepted a gubernatorial assignment, triggering worries whether it was tantamount to compromising the independence of the judiciary.
These worries were not without reasons. For one, Sathasivam as Supreme Court judge had quashed an FIR against BJP leader Amit Shah in an alleged fake encounter case. Second, and more significantly, he was one of the two judges who had upheld the Odisha High Court’s verdict to sentence Bajrang Dal leader Dara Singh to life imprisonment for killing Australian missionary Graham Staines and his two children. This case had come in appeal to the apex court seeking a higher punishment for Dara.
The Supreme Court’s judgement was problematic because of the reasons informing it. Justice Sathasivam and Justice BS Chauhan noted, “In the case on hand, even though Graham Staines and his minor sons were burnt to death while they were sleeping inside a station wagon at Manoharpur, the intention was to teach a lesson to Graham Staines about his religious activities, namely converting poor tribals to Christianity.” They went on to further observe, “It is undisputed that there is no justification for interfering in someone’s belief by way of ‘use of force’, provocation, conversion and incitement or upon a flawed premise that one religion is better than the other.”
This verdict kicked off a storm, prompting the judges to rewrite the contentious sentences. Thus, the reason they cited for not awarding death sentence to Dara Singh was that he had already undergone 12 long years of trial. They also rewrote their opposition to what they deemed as interference in “someone’s belief” in less harsher language: “There is no justification for interfering in someone’s religious belief by any means”. As senior journalist AJ Philip has shown in his Facebook post, even this observation of theirs presumed Staines was guilty of interfering in the religious beliefs of the tribals.
Fog of suspicion
Whether or not these observations are legally tenable or an example of judicial overreach is beside the point. It could well be a mere coincidence that these observations echo the extant Hindutva philosophy. However, the unprecedented decision to offer Sathasivam a gubernatorial assignment, and his acceptance of it, stoked suspicion that he had been awarded for providing relief to Shah and echoing the ruling party’s ideology. Might not this inspire other judges to please the government in similar vein?
This is precisely why Chief Justice Dattu’s decision to hold the conference on Good Friday has become injected with meanings he did not intend. This is also why the Prime Minister’s speech to the judges cautioning them from being influenced by “five-star activists” has been interpreted as interference in the independence of the judiciary. Context, as they say, is key – it is the so-called five-star activists who have nettled Modi by bringing his run in Gujarat under judicial scrutiny, as they have (and will) certain measures of the government, including the composition of the commission for judicial appointment.
Blame all these interpretations to the fog of suspicion enveloping our institutions and political culture. In choosing a handful of retired judges over others for bestowing sinecures, whether by appointing them to tribunals and commissions, the government becomes vulnerable to the charge of favouring those who were ostensibly deemed amenable to its wishes. Likewise, judicial verdicts favourable to the ruling dispensation are scrutinised to assess whether the motivations of judges were other than justice.
Ban the judges from accepting all appointments post-retirement and we will have removed all suspicions bedevilling the relationship between the government and the judiciary. Payment of full salary to the judges till death is just a small price to pay for the noble goal of upholding the independence of the judiciary.
Ajaz Ashraf is a journalist from Delhi. His novel, The Hour Before Dawn, published by HarperCollins, is available in bookstores.
Such a provision, though, should also bar them from accepting appointments following their retirement, including to bodies such as the National Human Rights Commission.
This should forever efface from public consciousness the suspicion that Supreme Court judges tailor their verdicts to satisfy the requirements of the party in power, or articulate views echoing its ideology. Regardless of the attempts to insulate the judiciary from the inimical influence of the government, a miasma of suspicion will always arise from judicial pronouncements and initiatives as long as sinecures can be offered – and accepted.
It is this suspicion which has had the gossip-loving city of Delhi speculate furiously why the Chief Justice of India, HL Dattu, decided to hold a conference on Good Friday, or why Prime Minister Narendra Modi chose to caution judges from the influence of what he described as “five-star activists”, or why the two Supreme Court judges, SJ Mukhopadhaya and NV Ramana, had breached the bounds of propriety in inviting Modi to the weddings of their children.
Context is key
Decisions and actions acquire meanings other than intended because of the contexts in which they are taken. This is best illustrated through an examination of the precedents Chief Justice Dattu cited to justify holding the conference on Good Friday. The Chief Justices’ Conference, he told advocate Lily Thomas in an open court, had been earlier held on Valmiki Day in 2007 and on Independence Day in 2009.
In a tone of disquiet, even hurt, Chief Justice Dattu said, “In 2007 and 2009, nobody had any grievance. What happened to spirituality back then?” The answer to his question is indeed simple – nobody had any grievance in 2007 and 2009 because the socio-political context then was remarkably different from that of 2015.
Remember the decision to observe Good Governance Day on Christmas last year. A good many government officials attended office on the day which has always been a holiday in India’s post-Independence history. This backdrop can’t but have us empathise with Justice Kurian Joseph, who wrote a ‘letter of protest’ to the Chief Justice as also an explanatory missive to the Prime Minister for skipping the dinner he hosted for the judges on Easter.
Really, would you seriously fault Justice Joseph for believing a hierarchy of holy holidays was being tacitly created? This is the point he hammered in his letter to Modi: “Your good self would kindly appreciate that no important programmes are held during sacred and auspicious days of Diwali, Dussehra, Holi, Eid, Bakrid, etc, though we have holidays during that period as well."
In case the import of his statement was lost, Justice Joseph cited the persecution of Zoroastrians in Iran, their escape to India, and the subsequent increase in their population here. “The reason this could happen here is that the Indian Hindu rulers of those times not only accepted but protected them,” Justice Joseph observed tellingly.
In alluding to the Hindu-ness of protective Indian rulers of the yore, Justice Joseph was presumably pointing to the minatory attacks on the Christian community over the past several months. From dastardly attacks on Churches to the menacing ghar wapsi programmes to observing Good Governance Day on Christmas, the Christians, quite understandably, ought to be worried over their status in India, a point poignantly made by India’s iconic police officer, Julio Ribiero. Without violating judicial propriety, Justice Joseph too was expressing grief, and acute discomfort, at the Indian state’s attitude to his community.
Raised eyebrows
The importance of context framing issues has been lost out on those who have wondered why Justice Joseph did not raise objections in November when the decision to schedule the conference on Good Friday was taken. But the campaign against Christians hadn’t acquired ominous dimensions then, mistakenly dismissed as stray incidents involving the lunatic Hindutva fringe which would be quickly brought under control.
Not only did their campaign turn insidious and persistent, it seemed the Modi government was winking at them through its decision to choose Christmas for promoting good governance. Perhaps this is why Justice Joseph belatedly decided to make an issue of convening the conference on Good Friday.
Obviously, this commentary doesn’t ascribe ulterior motives to Chief Justice Dattu. However, it might break his heart to know that many construe his decision to hold the conference on Good Friday as an unwitting endorsement of the Modi government’s ostensible disregard of certain days considered sacred by Christians. No doubt, this is an uncharitable interpretation, not the least because a solitary decision can’t reflect a person’s ideological inclination.
Yet this uncharitable interpretation of Chief Justice Dattu’s decision, too, can be fathomed in the context of the Modi government appointing the former chief justice of India, P Sathasivam, as the governor of Kerala last year. This had raised eyebrows as it was for the first time a former chief justice of the Supreme Court had accepted a gubernatorial assignment, triggering worries whether it was tantamount to compromising the independence of the judiciary.
These worries were not without reasons. For one, Sathasivam as Supreme Court judge had quashed an FIR against BJP leader Amit Shah in an alleged fake encounter case. Second, and more significantly, he was one of the two judges who had upheld the Odisha High Court’s verdict to sentence Bajrang Dal leader Dara Singh to life imprisonment for killing Australian missionary Graham Staines and his two children. This case had come in appeal to the apex court seeking a higher punishment for Dara.
The Supreme Court’s judgement was problematic because of the reasons informing it. Justice Sathasivam and Justice BS Chauhan noted, “In the case on hand, even though Graham Staines and his minor sons were burnt to death while they were sleeping inside a station wagon at Manoharpur, the intention was to teach a lesson to Graham Staines about his religious activities, namely converting poor tribals to Christianity.” They went on to further observe, “It is undisputed that there is no justification for interfering in someone’s belief by way of ‘use of force’, provocation, conversion and incitement or upon a flawed premise that one religion is better than the other.”
This verdict kicked off a storm, prompting the judges to rewrite the contentious sentences. Thus, the reason they cited for not awarding death sentence to Dara Singh was that he had already undergone 12 long years of trial. They also rewrote their opposition to what they deemed as interference in “someone’s belief” in less harsher language: “There is no justification for interfering in someone’s religious belief by any means”. As senior journalist AJ Philip has shown in his Facebook post, even this observation of theirs presumed Staines was guilty of interfering in the religious beliefs of the tribals.
Fog of suspicion
Whether or not these observations are legally tenable or an example of judicial overreach is beside the point. It could well be a mere coincidence that these observations echo the extant Hindutva philosophy. However, the unprecedented decision to offer Sathasivam a gubernatorial assignment, and his acceptance of it, stoked suspicion that he had been awarded for providing relief to Shah and echoing the ruling party’s ideology. Might not this inspire other judges to please the government in similar vein?
This is precisely why Chief Justice Dattu’s decision to hold the conference on Good Friday has become injected with meanings he did not intend. This is also why the Prime Minister’s speech to the judges cautioning them from being influenced by “five-star activists” has been interpreted as interference in the independence of the judiciary. Context, as they say, is key – it is the so-called five-star activists who have nettled Modi by bringing his run in Gujarat under judicial scrutiny, as they have (and will) certain measures of the government, including the composition of the commission for judicial appointment.
Blame all these interpretations to the fog of suspicion enveloping our institutions and political culture. In choosing a handful of retired judges over others for bestowing sinecures, whether by appointing them to tribunals and commissions, the government becomes vulnerable to the charge of favouring those who were ostensibly deemed amenable to its wishes. Likewise, judicial verdicts favourable to the ruling dispensation are scrutinised to assess whether the motivations of judges were other than justice.
Ban the judges from accepting all appointments post-retirement and we will have removed all suspicions bedevilling the relationship between the government and the judiciary. Payment of full salary to the judges till death is just a small price to pay for the noble goal of upholding the independence of the judiciary.
Ajaz Ashraf is a journalist from Delhi. His novel, The Hour Before Dawn, published by HarperCollins, is available in bookstores.
Buy an annual Scroll Membership to support independent journalism and get special benefits.
Our journalism is for everyone. But you can get special privileges by buying an annual Scroll Membership. Sign up today!