But Kurian Joseph has been more forthcoming, launching himself into a blistering attack on the then chief justice, accusing him of having been ‘remote-controlled’ in his actions. If Chelameswar’s June disclosure was a landmine, Kurian Joseph’s account is an atom bomb, the devastation of which will be felt for generations together. It brings up a basic issue about the functioning of our higher judiciary that was so far thought too sensitive to warrant discussion, but has since acquired a dimension that will not brook any further delay in addressing.

Finance minister Arun Jaitley has joined issue with Justice Joseph, saying he should come out with proof of his claims while the former CJI himself has chosen not to react. Jaitley’s concern is to protect the back of the government, eager to maintain that the ‘external source’ involved in the remote control is not his government. The crucial pre-election setting of Joseph’s bombshell may have prompted Jaitley to distance the government from the insinuation, but that does not take away the importance of the allegation. It raises an issue about the quality of decisions taken by the former CJI and whether there were toxic elements in those decisions.

If that is the case, many of the judgments delivered under Justice Dipak Misra must face scrutiny, but unfortunately, we don’t have a system for ensuring judicial review of decisions purely on the basis of the quality of decisions. Review, whenever it happens, occurs due to the efforts of the aggrieved parties. But there may be cases where the aggrieved party may be the system itself and therefore it may be preposterous to assume that the system will make a move against itself. It is obvious that approaches by the incumbent CJI and those of Justice Dipak Misra were quite different from each other. Under CJI Ranjan Gogoi, everything has to follow a routine and there is nothing out of turn, while under the Dipak Misra dispensation ‘anything’ was possible. This introduces a certain predictability about the responses of the apex court, which is not a great attribute for any judiciary worth its salt.

Several instances have come up since the assumption of office by the new CJI where the approaches have been widely at variance with those of his predecessor. The formation of the bench to hear the Ramjanmabhoomi dispute, for instance, has caused much resentment at least to some parties to the dispute, with the new CJI refusing to give the case any special consideration. When the case comes before the court in January, as decided, the first thing that requires to be done is to fix a date for taking up hearing. Similarly, on the Sabarimala women’s entry issue, the court has refused to entertain any urgent plea, although the decision has led to many issues of pressing nature, including law and order problems.

It is patently clear that each chief justice will have his or her own approaches, but certain commonalities in the approach of the court are imperative if arbitrariness is to be kept to a minimum. Courts have to maintain a certain continuity when it comes to judicial approaches to issues of public good; otherwise the legitimacy of many of the decisions may be viewed with suspicion, as is now turning out to be the case with some of the decisions pronounced by the outgoing CJI.

We need to have a system of judicial review under which any decision by any bench can be taken up for review at random and the quality of those decisions must correspond to comprehensive standards laid down for this purpose. No decision must suffer from any fault, which could include personal biases, subjectivity beyond acceptable levels and considerations extraneous to the core issue under examination. At the same time, the courts cannot be blind to the consequences of their decisions. It may be fashionable to present the goddess of law as blindfolded and carrying the sword in one hand and the balancing scales in the other. But beyond the imagery of independence it seeks to convey, such approach often fails to deliver the true meaning of justice. Luckily our courts do not have the figurines of the blind-folded goddess as the guiding deity, and the statue in front of the Supreme Court of India denotes a mother and child – Mother India protecting the young republic.

Our judiciary must be committed to upholding the interest of those who deserve help in securing justice. We don’t need decisions made purely on legal technicalities or decisions that ignore their implications on the society whose interests must be the highest priority of our judicial bodies. (IPA Service)