We Will Not Protect You

The Supreme Court has sent a stark message to judges across the country.

In dismissing the petitions seeking an investigation into Judge Brijgopal Harkishan Loya’s death, the Supreme Court, whether it was aware or not, has sent out a message to the judiciary across India: we are not going to protect you. It is as stark and as awful as that. Toe the line, stick to the narrative put out by the government, like Judges Shrikant Kulkarni, SM Modak, Vijay Barde and RR Rathi, and you’ll be fine. Exercise independence, refuse to be cowed, and if something happens, well, we can’t be held responsible. That’s what comes through in the Supreme Court’s shameful judgement refusing to even inquire into the suspicious circumstances of Judge Loya’s death.

I’ve written elsewhere about the shoddy reasoning and presumptions used by the Supreme Court in this case. Others have also dissected its refusal to even engage properly with some of the controversial facts that came out in Niranjan Takle’s reports in the Caravan. As problematic as the court’s approach in this case is, it also accidentally reveals the toxic nature of the judicial hierarchy itself.

The backbone of the judiciary

Given the media coverage, it would be easy to believe that the Supreme Court is the most important element of the judiciary in India. Truth be told, as “powerful” as it is, it caters to a negligible section of the population that has the means and ability to approach it. Of the more than two crore cases filed every year in India, not even one lakh (or 0.5%) are filed in the Supreme Court. The vast majority of the cases, more than 90%, are filed in the district and subordinate courts – the munsif courts, the first-class magistrate, the district and sessions judge and others of similar rank.

When the average citizen of India thinks of the judiciary, she is thinking of her local magistrate or sessions’ court. This is her closest point of contact with the justice delivery system. This is the court she looks to for resolving land disputes, for enforcing contracts, for getting bail, for getting the police to entertain her complaints, among many other things. Every day, civil and property rights of millions are debated, won or lost in these court rooms, presided over by men and women who form the backbone of the judiciary. Their situation, though, is far from anywhere near satisfactory.

They enjoy few of the constitutional and statutory protections that the judges of the Supreme Court and the High Courts do. With their salaries and pay in the hands of the State Government, members of the subordinate judiciary have had to fight a long-standing battle of attrition in the Supreme Court just to ensure that their pay keeps up with inflation and lets them live a decent life.

Few, if any, are promoted up the ranks to the High Court, let alone the Supreme Court. The oft-repeated claim to justify this is “merit”, but a closer analysis of the data reveals otherwise. The self-selecting clique that has resulted from the “collegium system” of appointment has created a glass ceiling for judges of the subordinate judiciary. This has other consequences too – while reservations and open examination for entry has meant some level of diversity in the subordinate judiciary, the High Courts and the Supreme Court remain the stronghold of upper caste and privileged men.

In these trying circumstances, with terrible pay and conditions, little support in terms of infrastructure and almost no chance of breaking into the higher ranks of the judiciary, judges still work day day in hundreds of courtrooms across the country helping keep what little faith the public has in the judiciary.

Breaking the backbone

The confidence of the public in the judiciary is based only on perception, and it’s hard to overstate how important the subordinate judiciary is in building and furthering this perception. When people see that powerful politicians/actors/businessmen turn up in a trial court to answer charges, they know something somewhere is working right. They see a Judge John Michael D’Cunha convict J Jayalalithaa after a prolonged trial, they take note of Judge Jagdeep Singh who convicted Gurmeet Ram Rahim Singh Insaan, and they understand a Judge OP Saini who, after an elaborate and detailed trial, had to acquit the accused in the 2G trial.

When comes a question that perhaps a judge was done to death purely for doing his job, you would think that the Supreme Court, of all people, would care that people are satisfied about the truth of the matter. Instead, what we get is a judicial stamp of approval to a “discreet enquiry” conducted by the Maharashtra Government with no effort being made to ensure the independence or the impartiality of the probe. The court clings instead to the statements made by the four judges, not under oath or cross examination, but pure say-so, which confirm the official narrative to declare that there’s nothing to see and we should all move on.

For all their talk about the petitioners “attacking” the judiciary, did the Supreme Court judges not pause to think how this judgement will be received by the members of the subordinate judiciary across the country, hearing cases concerning the rich and powerful? What does it tell the magistrate in Bangalore presiding over Mohammed Nalapad’s attempt-to-murder case? What does it tell the judges who are hearing Asaram Bapu’s sexual assault cases? What does it tell someone trying to uphold the rule of law in the furthest corners of the country in the most trying of circumstances?

Judges are bound by their service rules and hence can’t speak out in the press, sign petitions or undertake marches to tell us what they’re feeling about this judgement. Would they have drawn assurance from the Supreme Court’s confidence in the impartiality of the BJP ruled Maharashtra Government’s “discreet enquiry”? Have they gone to work after this judgement knowing that the system has their back when they do their jobs fairly and independently? We don’t know for sure right now, but it is likely we will find out soon whether judges still have faith in the system.

About the author

Alok Prasanna Kumar

Alok Prasanna Kumar is Senior Resident Fellow at the Vidhi Centre for Legal Policy. He heads the Bengaluru office of Vidhi and has previously practised as an advocate at the Supreme Court of India and other courts in Delhi.