The “not meant to be exhaustive but illustrative” list of what judicial officers may not do, because that is what is “expected of a judge” is, by today’s fast-paced times, more than a little out of date. When obsolescence happens at DeepSeek speed, the gap between what judges should do and what they actually do invites a relook at the 1997 code, a short and sweet document listing 16 actions, summarised as the “Restatement of Values of Judicial Life”, approved and adopted by the full bench of the Supreme Court, way back, when values were commonly understood and shared. Judges, according to the list, should do nothing that “erodes the credibility” of members of the higher judiciary. Therefore, stashes of cash in outhouses on premises occupied by a person from the higher judiciary requires not only an in-house enquiry, as the Supreme Court has done regarding Justice Yashwant Varma, but an impartial investigation by an “agency” that is deemed independent. His repatriation to the Allahabad high court is a face-saving move, for him and the Supreme Court, because it confirms that has been taken, though it falls far short of the impeachment demanded by various bar associations. Judges are being indicted by the Supreme Court of being “totally insensitive, inhuman” and of making observations that are “unknown to tenets of law”. The judge in question, Ram Manohar Narayan Mishra of Allahabad high court, in the top court’s view, demonstrated a “complete lack of sensitivity” on what was attempt to rape on a minor victim. The quibbling over what parts of the body could be touched and how breaking the drawstring of pyjamas didn’t constitute attempted rape may have shocked women, activists and the public at large, but then not everyone is equally sensitive and, by extension, equally human. If the norm is for judges to “practice a degree of aloofness consistent with the dignity of his office”, and keep a distance from holding forth in public on “political matters or on matters that are pending or likely to arise for judicial determination”, the Supreme Court seems to have ducked doing much on the statements of Allahabad high court judge Shekhar Kumar Yadav. The judge chose to speak at a Vishwa Hindu Parishad event, where he used unparliamentary language to describe Muslims and declared his political position: “I feel no hesitation in saying that this is India and it will run as per the wishes of its majority.” He used his position to endorse adoption of the Uniform Civil Code by invoking the Supreme Court indirectly; saying “the country’s top court also supports it”. The judiciary can fume as it has done that hate speech “is happening because the State is impotent, the State is powerless, the State doesn’t act”, but it certainly can’t do more than that when state governments use bulldozers to raze the homes and establishments of people under incomplete investigation and no final decision under the law, for committing violence. On the use of bulldozers in Prayagraj, a bench of Justices Abhay S. Oka and Ujjal Bhuyan said: “It shocks our conscience how the residential premises were demolished in a high-handed manner”. Justice Bhuyan added: “Using a bulldozer to demolish a property is like running a bulldozer over the Constitution. It is a negation of the very concept of rule of law and, if not checked, would destroy it. The courts cannot tolerate such a process. If we tolerate it in one case, it will continue.” Bulldozers are now being used not only by the State, belying the judiciary’s view that the State is “impotent”. Bulldozers were used, with impunity it may be added, in Nagpur hours before the court hearing on the notices on use of these wrecking machines by a State that routinely engages in violence in a manner that appears coercive and intimidating. The point that the judiciary is probably too embarrassed to note is: who cares? Organisations like the Karni Sena, which once launched a campaign against distortions of Rajput history in the film Jodha Akbar, obviously do not. Bulldozers, under Karni Sena stewardship, were rolled out to raze the house of a Member of Parliament, Ramji Lal Suman, from the Samajwadi Party, because of his Rajya Sabha speech in which he invoked the name of a Rajput warrior, Rana Sanga. The impudence of the act seems based on a sense of immunity provided by the chanting of “Jai Shri Ram” by Karni Sena members as the bulldozers moved in. The rules, or even the law, are made to be broken, because rule- breakers, if the Karni Sena’s actions are anything to go by, are winners and doers. Abiding by the law, as victims of bulldozed homes and establishments have found out to their cost, are the last resort of the timid, and ultimately, losers. The judiciary can fulminate that using bulldozers and slapping criminal cases on free speech are tantamount to gagging “in the public domain, which is so fundamental to a free society”. The issue is not how “shaky on our fundamentals” respective state governments are, but on their intent, which is political, regardless of whether it negates the very concept of rule of law and that too in the name of enforcing the law to maintain order. This is all school-level civics, or what is officially “Social and Political Life” under the National Council of Educational Research and Training design. Under the separation of powers and the principle of checks and balances, there are three verticals. The legislatures, where laws are made and governments are meant to be held to account, have in the era of brute majorities been reduced to extensions of the executive, leaving the judiciary as the only bulwark in “might is right” situations. The judiciary can decide on what is lawfully right or wrong, but the executive calls the shots, because implementation is a power that is exclusive to government. As is evident, the judiciary is increasingly less effective, as the concept of “wishes of the majority” sneaks in, as a deterrent, even though it is the “last resort”. Unknown tenets are being written and are in the process of evolving into the new and known tenets. The judiciary, under the old order, was the keeper and upholder of the law. The Supreme Court has time and again been challenged by a wilful executive, as in the “bail and not jail is the norm” practice. But who cares about old norms? New norms prevail, dictated by the wishes of the majority, and what prevails is then the law. Shikha Mukerjee is a senior journalist based in Kolkata
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