Senior Advocate Indira Jasing on Saturday opined that a pick and choose policy could be discerned on the part of the judiciary, going by the manner in which the Supreme Court has prioritised certain cases over others in recent times.
Jaising highlighted the reluctance of the Supreme Court in hearing cases relating to Citizenship Amendment Act (CAA), Article 370 and electoral bonds while fast-tracking certain other cases to claim that "the evidence is on the table".
"From the decision in Babri Masjid to the decision to put in cold storage CAA, electoral bonds, the challenge to the abolition of Article 370 - from the grant of bail to some journalists but not to others, we see the evidence of a highly self-conscious court. But perhaps this is a charitable description. What we really have is more than one Supreme Court of India and sometimes more than one person in the personality of one judge. A pick and choose policy is what we see, perhaps the power resting with the master of the roster," she said.
Noting that a majoritarian government brings with it its own perils, she queried,
"Can we say that the judiciary succumbs to a majoritarian government? Are we seeing a threatened judiciary? Are we seeing a repeat of ADM Jabalpur, where one of the judges said that ‘I have a diamond hard hope that the State will treat its citizens in detention as its own children?"
Jaising was a co-panelist present for a lecture on the theme "Is our judiciary delivering on its role as a sentinel on the qui vive in these changing times?" rendered by former Chief Justice of India MN Venkatachaliah. The event organised by the Money Life Foundation also saw an address by former Supreme Court Judge, Justice AK Sikri.
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Jaising's talk saw her recount the general characteristics observed in generations of lawyers over the years. She opined that a judge's decisions may be predictable depending on the generation from which they were drawn in, and the influences that shaped that generation.
In this backdrop, she went on to observe,
"While making appointments we must be conscious as to what the ideology of the person we are appointing is. This brings me to what I call the 'ideological court.' Some have called it the Executive Court."
The expansion of PIL jurisdiction may have set off dangerous precedents in that an individual can claim rights to move against the collective interest, Jaising further opined. She said,
"We are yet to conclude what is the the impact of the opening of the doors of the court to anyone. Now one resident of Delhi can file a PIL questioning a whole movement of farmers on the ground that he is a “ tax payer" and hence has the locus to stop the protest of a whole community. Individual rights have the potential to defeat collective rights, a very dangerous precedent. I say no more except that the voice of the generation of tax lawyer (is) a generation which sees its own individual inconvenience over all else."
Similar approaches noticed in the Olga Tellis case was also recounted by Jaising, who informed the audience that homeless pavement dwellers were viewed as nuisances that needed to be removed by the Municipal Corporation, as if they were benches and boxes.
"Mind you, this is all recorded in the judgment", she added.
Recent developments have rekindled hope, Jaising said, while referring to young lawyers who had come to the aid of "those who have been arrested in the Delhi Riots or people on social media who have been told that they are disrupting communal harmony, or lawyers who are fighting so called conspiracies in every nook and corner."
The senior lawyer proceeded to call for a change in the manner of appointing judges, opining that the Indian system of judicial appointments is lacking in transparency.
By contrast, she spoke of the manner of judge appointments in the United States of America, where prior to appointment, every judge is questioned on their attitude to the issues of our times - including abortion, the wall of separation between religion and State and the rights of the LGBT community.
In India, we do not have that kind of transparency, she noted.
She went on to propose that the Indian system of judicial appointments be changed so that an equal opportunity is given in the manner of appointment of judges. She explained,
"I propose that applications be invited for the appointment of judges from interested people, putting on record their biodata. This, I suggest, will ensure that women, Dalits, LGBT community will all have an equal opportunity to get appointed as judges and the judiciary will reflect issues of this very diverse nation."
On a related note, Jaising also expressed a note of appreciation for former CJI Venkatachaliah’s efforts in ushering in some objectivity in the the appointment of judges during his tenure.
"To Justice Venkatachaliah’s credit, he made transfers of no less than 50 judges to different High Courts on the ground that they had their own relatives practicing in those courts. It was perhaps the first attempt to get rid of dynasty and nepotism in the judiciary", Jaising remarked.