Why the CJI's refusal to meet Rahul Gandhi matters

The Chief Justice of India refused to meet the Leader of the Opposition on the 12th of this month and hear his grievances, even though one of his predecessors had no problems inviting the prime minister to his residence for a puja and a cosy tête-à-tête. This snub was both unfortunate and expected.

Unfortunate, because the CJI is not another divine, non-biological being but a part of the system. This system has become dysfunctional, and the LoP simply wanted to convey this to him.

The LoP has as much constitutional status as a CJI, even though their roles differ. The CJI would not have compromised his much-vaunted, but increasingly doubted, political 'neutrality' if he had had the courtesy to meet the LoP, listen to his grievances, perhaps accept a memorandum or two, share a cup of tea, and bid him 'auf wiedersehen' or 'We shall meet at Philippi'.

No one expected him to act on the grievances, of course, since many of them pertain to his own court, but at least the window-dressing of democratic accessibility and an 'independent' judiciary would have been preserved. It might even have restored some of the trust that large sections of the public no longer have in the Court.

But, as I said, the refusal was expected, for the simple reason that the Supreme Court no longer has the moral authority and public trust to act as an honest broker (or arbiter) between the government and the Opposition/ public. It had started shedding this constitutional Teflon long before CJI Surya Kant's tenure, beginning with its orders on Rafale, Pegasus, Hindenburg, Ram Mandir, electoral bonds and Umar Khalid, to name just a few.

But the moulting has become more pronounced over the last year or so. There is a perception that it has been consistently siding with the executive and the Election Commission in spite of scientific evidence, ground realities and public demands.

It gave a clean chit to the use of EVMs, made a statistical mockery of VVPAT verification, ignored the selective use of the model code of conduct in favour of the ruling party, stayed silent at the dubious rejection of nomination papers of Opposition candidates (which has now been upgraded to blatant intimidation and arrests), the use of police to 'persuade' some voters to stay at home during polling, and the egregious changes, delays and mismatches in voter counts.

It looked on as the Election Commission repeatedly approved the breaking up and hijacking of Opposition parties and governments by the BJP, and preferred humiliation to contempt action when the committee set up by it to select the chief election commissioner was thrown into the dustbin by the Modi government.

Each and every misdeed of this type was brought to its notice through various petitions (which, the CJI reportedly told Rahul Gandhi, was the kosher way of approaching the Court!). These were usually rejected with the contempt they deserved or put on the backburner for a more propitious time. In fact, the Court occasionally even frowned upon those who filed these petitions and wasted its time, drawing upon its vast knowledge of zoology to term them cockroaches, flies, etc.

The nadir was reached when it did nothing — NOTHING — for over a year to rein in an Election Commission which had gone rogue with its brutal SIR, which has consigned 130 million voters to the twilight zone between statelessness and deportation. Worse, it greenlighted the politically partisan exercise in May this year, incentivising the ECI to redouble its efforts to rob Indian citizens of their fundamental rights.

Therefore, now that massive protests have erupted all over the country against the SIR and the CEC, the public appears to have lost confidence and trust in the Court, forcing people to march on the Court itself, a first in our history. To put it bluntly and unkindly, it is now seen as part of the problem, not the solution.

With all the gatekeepers of democracy and justice — the higher judiciary, Parliament, the Election Commission, the National Human Rights Commission and the media — abdicating their constitutional duties and oaths and becoming irrelevant, India's citizenry has occupied the space that genuinely belongs to it, and which no wannabe despot can take away from it: India's roads, streets, parks and open spaces.

Here, too, the Supreme Court has not exactly covered itself with glory: it suggested removing Jantar Mantar as a protest venue and initially failed to take any action against Delhi Police for its excesses on young protesters, including girls, journalists, advocates, passers-by and students.

When public and international outrage finally forced it to issue some directions, these were hedged with so many caveats and conditionalities, escape clauses such as 'in accordance with law', 'provided' and 'however', that the police treated them as cosmetic inconveniences.

As I write this, they continue to beat and detain people, sexually manhandle them, protect their hired goons and shut down half the city. Today, a one-stripe constable at Jantar Mantar effectively wields more power than the Chief Justice of India — or so it seems to most citizens.

THIS is the background and context — the total breakdown of law and order, denial of constitutional protections and rights, evisceration of the values of democracy, subversion of institutions, rampant use of sovereign violence and defiance of judicial orders — in which the LoP wished to meet the CJI on the 12th of this month.

The Supreme Court is the last port of call for the citizens of a failing ship of state, and it does not behove the CJI to wash his hands of the mess by saying, "Law and order is not my domain." Yes, in normal circumstances it is not, but when the pretext of law and order is used to suppress the people's voice, to inflict needless violence, to shut down a city, to deprive citizens of their basic rights and to murder democracy itself, where else can the people turn for legal redress but the Supreme Court?

Such a moment is not the time to split hairs about 'administrative' and 'judicial' sides, as the CJI has sought to do; he should look at the 'justice' side. For, in the ultimate analysis, if the highest court in the land cannot assure justice for citizens, it becomes another legal fiction and might as well be wound up.

The Constitution has given the higher judiciary extraordinary powers, privileges and protection to safeguard the rights of the people, not those of the government of the day. If this authority is instead used to allow authoritarian overreach, then this is a breach of the trust the people have reposed in the Court, a violation of a sovereign contract, and they — We the People — have the inherent right to enforce accountability and even demand resignations. That moment in time has arrived.

The hon'ble CJI should have given the Leader of Opposition an appointment. It was the latter's right and the former's duty. It was also, perhaps, a democratic nation's last call to remain one, in a peaceful manner.

It's still not too late to do the right thing, Your Lordship. Otherwise, to take a phrase from the Bible, on your own head be it.

Views are personal. More of the writer's works here

Avay Shukla is a retired IAS officer and author of The Last Sky — Countdown for an Endangered Planet and other works. He blogs at avayshukla.blogspot.com