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A Fatal Blow to be Judiciary

There is a colloquial saying – ‘this house got burnt with its own (House Stove)’. I was reminded of this on the day when 4 judges held a press conference and mentioned serious charges against the Chief Justice. To add to the mystery, one of judge signatory now said publically – “an issue was raised. Those concerned have listened to it. Such actions would not occur again, and there is no need for outside intervention”. But now the press leakage of what transpired at the judges meet, reminds me of another. The water of seven seas will not be able to wash this stain.

The not so acceptable is the suggestion that pending case in Judge Loya’s death should be heard only by CJI and the top 4 judges only. This suggestion is obviously unacceptable as it touches upon the integrity of all other judges.

Let me give you an instance of how such a situation was handled in a leading high Court. It was in 1985, 1st week of December, that a petition was filed in the High Court, asking for a direction to Rajiv Government to appoint a Commission of Enquiry to investigate the 1984 killing of Sikhs. The matter was listed before the first puisne judge. In spite of opposition by the Union of India, the Bench issued a show cause notice to the Central government for a date in the middle January, as the High Court was closing for winter vacation.

A new roster was fixed after the vacation. When it came out, the first puisne judge found that in the roster he was put in a criminal bench, which obviously ruled him out from hearing the Enquiry Commission matter. Obviously, the judge was hurt/surprised at this openly, unbecoming action of the Chief Justice. He had the choice of going public or, at the minimum, pass on this untoward act by the Chief justice to a few members of the Bar. But he did not do so. Instead he took leave for one week immediately on the reopening of the high Court. The message was conveyed to the Chief Justice without making a pubic display, which would inevitably have caused a dent to the reputation of the High Court. The new Bench dismissed the writ petition. But that is another matter.

Here the matter has gone to the press and four judges have charged that, “There have been instances where cases having far-reaching consequences for the Nation and the institution had been assigned by the Chief Justices of this court selectively to the benches … without any rational basis for such assignment. This must be guarded against at all costs”. Thus keeping quiet is not an option for the other judges of the Supreme Court.

May I give another instance of a High Court, which dealt with trial of a case involving the murder of Indira Gandhi. Under law the allocation of the trial court is decided by District judge or the High Court. The first puisne judge of High Court heard from the press that the case was marked to one particular additional District and Session judge, whom he felt was not upto mark. On enquiry he was told by the Registrar that Chief justice had so ordered.

Now, in law, Chief Justice could not do so because the word “High Court” means a decision by the majority of all judges. This is done by circulating the suggested decision amongst the judges. The circulation is done by sending it to the junior most judge so that he could give his opinion uninfluenced by any view given by the senior judges.

First puisne judge, being consciously of this frailty, told the Registrar to bring this to the notice of the Chief Justice, and also tell him that he would sign first (against the usual practice) as a kind of assurance that there was unanimity amongst the judges, thus avoiding an embarrassment if the order was to be challenged. Chief Justice understood the delicacy of the matter and agreed to the suggestion, so the order became legal. But this could only have been done if the loyalty of first puisne judge was to the judiciary rather than to take any advantage against the Chief justice.

I believe that the issues raised by the 4 senior judges are central to the independence and institutional integrity of the judiciary. I believe that the issues raised in the letter and press conference of the 4 Supreme Court Judges must be addressed immediately and course correction must be ensured, by the full Supreme Court as otherwise the same would have unfortunate consequences.

I have no doubt that people at large will be wondering whether they are in danger of losing their entitlement to an independent judiciary as guaranteed by the constitution. I myself am reminded of the searing words of Bible which were strongly spread by Jaya Prakash Narain during the fight against Emergency – namely “but if the salt have lost his flavor, with which shall it be salted?”

I hope the Supreme Court does not take offence and make it a matter of undue superiority and take the stand that this matter, notwithstanding that it has disturbed the whole Bar of India, it will not discuss it with the Bar because it is it’s sole privilege.

May I, in all humility, submit that this assumption proceeds on the belief that the judges are immune to human frailties even while making non-judicial decisions (such as appointments and transfers). This self-glorification is not accepted even by members of the judiciary itself vide expostulation of Justice Frankfurter of the US Supreme Court that “all power is of an encroaching nature. Judicial power is not immune to this human weakness. It must also be on guard against encroaching beyond its proper bounds and not the less so since the only restraint upon it is self-restraint”.

If I sound a bit harsh, I can only invoke the caveat of Justice Holmes of the U.S. Supreme Court, who said, “I trust that no one will understand me to be speaking with disrespect of the law because I criticize it so freely.....But one may criticize even what one reveres.....And I would show less than devotion, if I did not do what in me lies to improve it.”



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Related Bulletin : Feb 2018