Judges often change their ideological preferences to comply with the doctrine of the state they serve.
REMEMBER Emperor Akbar in Mughal-i-Azam? Akbar ka insaf uska hukum hai. Akbar’s command is his justice. This was how the great Mughal ruler dismissed a poor woman’s petition to save her daughter from imminent and wilful execution in the movie. In the real world, Akbar may have never spoken Urdu just as he may have never been approached to spare the life of any Anarkali if she ever existed. The dialogue writer, Wajahat Mirza, died in Karachi in 1990 but not before unwittingly describing an essential feature of justice everywhere — that it is universally a subjective thing. It was the whim of ancient kings and it remains a whim packaged in ornate terminology today, be it as a feature of democracy or of the Third Reich.
Four judges decreed the hanging of Z.A. Bhutto under military dictatorship. Three opposed it. Bhutto lost the lottery. You may see the judges on both sides as scrupulous practitioners of law and you may see their choices as a personal predilection or both. Yakub Memon would have perhaps lived had a different judge had his way. One judge unseated Indira Gandhi from power, another endorsed her emergency rule.
President Pratibha Patil opposed the death penalty on principle, to quote a different example, so she never rejected a mercy petition even if she did it by leaving the files unattended. Pranab Mukherjee, who succeeded her, clearly thought otherwise. He threw out all the mercy petitions he could, opening the path to the gallows for those on death row. Justice is thus both a lottery and the wilful command of a moody emperor with or without the judge’s wig.
As far as I am aware, there were no lawyers in Aurangzeb’s or Kautilya’s time though Shakespeare could not have conjured Portia without a nascent European tradition of black-robed advocates. The encounter between the petitioner and the magistrate in Chandragupta Maurya’s court would have been direct and swift, with no place for intermediaries, today’s LL.B degree holders.
- SC Judges’ Revolt: Can CJI, Govt Afford to Ignore ‘Supreme’ Tsunami?
- REVOLT IN SUPREME COURT: JUDICIARY, DEMOCRACY IN DANGER, SAY 4 TOP JUDGES
- Chief Justice Meets Supreme Court Judges, AG Says ‘Storm’ Is Over
In a different era, the lawyers can mutate into an ideologically driven mob, for example to shower Mumtaz Qadri with rose petals while cheering him for killing a secular, liberal soul that Salmaan Taseer was. And there were the Indian counterparts who viciously assaulted outspoken student leader Kanhaiya Kumar as he was being escorted to the courtroom.
In India, there is a new tradition, which I also noticed in Srinagar, to prevent lawyers from defending a petitioner. Hansal Mehta made Shahid, a powerful film depicting the true story of a Muslim lawyer in Mumbai who was killed by irate pseudo nationalists because he defended the weak and probably innocent Muslim men in law courts against accusations of terrorism.
Judges can be killed too, usually falling to those they have ruled against. Three US federal judges are on record as being murdered by those their judgements did not please. During the troubled period, the IRA killed three judges, including Lord Justice Sir Maurice Gibson in 1987. That’s a good reason that judges everywhere are accorded adequate personal security.
Indian judge B.H. Loya was hearing a fake encounter case when he died suddenly. The Bombay High Court is looking into allegations that he was murdered while the official records say that the 48-year-old judge succumbed to a heart attack. Loya’s family first feared that he might have been killed after turning down a bribe offer. They later said they no longer believed that to be so. There’s public outcry to investigate the death nevertheless, not least because the head of India’s ruling party stands named in the incident. Soon after Loya’s death in December 2014, his successor dropped the fake encounter case against BJP President Amit Shah.
The most telling comment on the cynical state of justice in India came perhaps from a man described as Babu Bajrangi, a self-confessed Hindutva zealot, who was caught in a sting operation carried out by journalist Ashish Khetan, now a member of the Aaam Aadmi Party. Bajrangi said on camera that he was denied bail on murder charges and that his leader would arrange the right judge to set him free. Cases have to be sometimes transferred to different states over fears that justice would not be delivered in a particular state in a particular court, a fear suggesting that judges are a subjective lot.
In the old days justice was delivered on behalf of the ubiquitous moneylender who had the thumb impression of the illiterate peasant on the book of accounts as evidence of money advanced. Indebted peasants are still committing suicide in India in droves, as they fear that the law overtly or covertly favours the creditor. The Portias are there to protect the poor and ignorant from wily Indian Shylocks but they are few and far between.
Judges often change their ideological preferences to comply with the doctrine of the state they serve. The head of the justice department in Nazi Germany was a former Bolshevik. With the rise of right-wing nationalism in India, a gradual ideological shift is perceptible in all institutions. The Rashtriya Swayamsewak Sangh’s Dattopant Thengadi set up the Akhil Bharatiya Adhivakta Parishad (All India Advocates Council) in 1992, ironically the year the Babri Masjid was demolished in defiance of the Supreme Court’s ruling. The lawyers’ body has produced several judges from its ranks. Justice Deepak Misra, the chief justice of India, seems to be an admirer of the RSS-backed advocates’ body as he was the chief guest at their annual function in Bengaluru two years ago.
Four most senior judges of the Supreme Court took an unprecedented step last week to address a news conference where they expressed the fear that Indian democracy was in peril. Emperor Akbar would not be amused.