Let me repeat two
references I had made in Judicial Perfidies-3:
‘SC
slams Centre for 'cherry-picking' names for tribunals, directs govt to make
appointments in two weeks’, on 15/09/2021, at https://www.firstpost.com/india/sc-slams-centre-for-cherry-picking-names-for-tribunals-directs-govt-to-make-appointments-in-two-weeks-9966641.html
and
‘Why
have collegium at all?’: What Kureshi’s rejection says about SC independence in
the Modi era, on 31/08/2021 at https://scroll.in/article/1004168/why-have-collegium-at-all-what-kureshis-rejection-says-about-sc-independence-in-the-modi-era?fbclid=IwAR2VB2msqBoccd6ACLO728Sn4bokQv49NU-LRZayv9gNCBs_fWIbxqk-S6E
For
me, there is no doubt, both reports have enough facts and pertinent
questions. For the same reason, I can
imagine at least some of those who have gone through the above reports recollecting
two quips: pot calling the kettle black
or prostitutes talking of chastity.
If
the appointments made by the Executive are questionable, the appointments made
by the unconstitutional Collegium are no better. But the credibility of the
Collegium does suffer because it has been made an in house affair with an
opaque procedure whereas the alleged cherry picking by the Centre is at least
by a team that includes members from
opposite sides of the fence, for example, the information commissioners under
the RTI Act are selected by a committee comprising the PM/CM, another member of
the respective Cabinet and the Leader of the Opposition in the Lok Sabha/State
Legislature.
Further,
while the appointments made on the recommendations of these committees can
still be questioned in a court of law, such a scope is not there in the matter
of appointment of judges to the higher courts. We did have the case of at least
one Central Vigilance Commissioner being removed from that post through
judicial intervention. This is what Wikipedia reports about this case:
Supreme court quashes
appointment of CVC[edit]
PJ
Thomas was appointed as
the Chief Vigilance Commissioner in September 2010, on the recommendation of a
High Powered Committee (HPC) headed by the Prime Minister of
India. The selection of the
new CVC was marked by controversies, after Sushma Swaraj, who was part of three-member selection committee, objected to
the choice of Thomas, citing the pending chargesheet against him. A public interest
litigation was filed in
the Supreme Court of
India by Centre
for Public Interest Litigation and India
Rejuvenation Initiative.[17]
On
March 3, 2011, the Supreme Court quashed the appointment of Thomas as the Chief
Vigilance Commissioner, noting that the HPC did not consider the relevant
materials on the pending chargesheet.[18] Subsequently,
Mr Thomas resigned.[19]
While the legality of Thomas
resigning when the apex court had quashed his appointment itself is a question
to be dealt with legal luminaries, the Supreme Court itself had said that the
high-powered committee's recommendation on appointment of Thomas "does not
exist in law".
Worse, this case, the cause of
which happened in 1991-92, is still pending.
Meanwhile, the 1st
accused, K Karunakaran, who had been the Chief Minister of Kerala, when the
scam happened, was discharged, on his death in 2010, almost 20 years later.
Another chief minister, Ommen
Chandy, was impleaded by none other than V S Achuthanandan who had been Ommen
Chandy’s predecessor as Chief Minister till 2011.
The Kerala High Court discharged
Ommen Chandy in 2013 and the apex court also refused to entertain
Achuthanandan’s plea in 2015.
These details have been brought
out only with the aim of highlighting the fact that despite the higher
judiciary dealing with the case on so many occasions the case is still pending
with many former ministers and secretaries to the Government of Kerala remaining
under cloud but neither punished or nor acquitted.
The report ‘CVC loses job, UPA
face’ (March 4, 2011, https://indianexpress.com/article/news-archive/web/cvc-loses-job-upa-face/) reveals many lapses at
various levels in the appointment of Thomas as the CVC. Here is one pertinent
observation of the apex court:
We
find that there are at least six notings of the DoPT between June 26, 2000, and
November 2, 2004, which have recommended initiation of penalty proceedings
against P J Thomas (for his alleged role in the palmolein scam) and yet in
clearance given by the CVC on October 6, 2008, and in the Brief prepared by the
DoPT on September 1, 2010, and placed before the HPC, there is no reference to
the earlier notings, the court said, expressing its surprise at the government’s
consistent omission over the years.
Again, none of those responsible
for these consistent omissions over the
years had been investigated or punished by these very courts whose job it
seems is to only give a decision, either way, in any dispute between litigants
brought before them or proactively involve only in such cases as it suits them,
for whatever reasons.
This brings me to some critical
analysis of the basic judicial function.
Let me begin with credibility.
If not the only one reason, the
credibility of the judiciary does certainly rest on its most important role as
a third (impartial) party in any dispute.
This is the reason why Bar
Council of India rules even ban relations of judges, practicing as advocates,
from appearing before them.
But the Bar Council Rules view
these relations in a very narrow manner, to include only sons, daughters, etc. The
relevant extract of the Rules is reproduced below.
6. An advocate shall not enter
appearance, act, plead or practise in any way before a court, Tribunal or
Authority mentioned in Section 30 of the Act, if the sole or any member thereof
is related to the advocate as father, grandfather, son, grand-son, uncle,
brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt,
niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law
or sister-in-law.
*For the purposes of this rule, Court
shall mean a Court, Bench or Tribunal in which above mentioned relation of the
Advocate is a Judge, Member or the Presiding Officer
I have read of at least one
judge, Binod Kumar Roy, who seemed to have had his fingers on the pulse of the
society and ears to the ground. He was the Chief Justice of the Punjab and
Haryana High Court when he issued a five-page administrative directive
restricting relatives of certain judges from appearing before them.
This is an extract from a report
(currently not accessible), dated 08/11/2004, at http://www.outlookindia.com/full.asp?fodname=20041108&fname=Judges+%28F%29&sid=1&pn=1
The
Bar Council rule is clear that lawyers can't appear before their own kin. Roy's
directive identified a dozen judges whose relatives are advocates (see All in
the Family) and forbade them from appearing before any of these 12. This
ensured that a judge cannot help even a fellow judge's kin.
He had justified his order quoting
jurist H. M. Seervai from his book, Constitutional Law of India. The quote is: "It
is true that the solution suggested is unusual, but unusual situations which
pervert the judicial system require unusual and unorthodox remedies."
As per the report, within a
month of this directive, the SC collegium recommended his transfer to the Patna
High Court.
Another judge I would love to
quote here is S M Daud, of the Bombay High Court. This is what a Times of India
report, dated 24/03/2002 read:
Mangalore:
Noted writer Arundhati Roy, who was convicted by the supreme court for contempt
of court, has got support from an unexpected quarter with a high court judge
saying the conviction was "wrong". "Arundhati Roy was wrongly
convicted," Justice S M Daud, a judge of the Bombay High Court, said. The courts should accept the criticism by
the citizens, he told reporters here on Saturday. The highest court should also be open to scrutiny by the public, he
said, adding that the courts can either refute it or justifies their actions.
He also suggested that the courts should cut down the vacation periods and
working hours should be increased to expedite the clearance of the pending
cases. Roy was recently convicted by the supreme court on charges of
contempt of court and sentenced to a one-day "symbolic imprisonment"
and slapped Rs 2000 fine for criticising the courts.
Let the parting shot on
credibility be from the then head of the Parliamentary Standing Committee on
the Ministry of Law and Justice, Rajya Sabha member E.M.S Natchiappan, who had
said: 'Judges appointing judges is bad enough in itself; judges judging judges
is worse.'
We shall deal with the issue of
judges judging themselves later.
For now, we need to have a look
at the second report referred to at the beginning of this critique. The title of the report- ‘Why have collegium at
all?’: What Kureshi’s rejection says about SC independence in the Modi era- itself is enough to
raise hackles. Why have collegium at all? What is special about Kureshi’s
rejection? What is SC independence? Is it fettered under Modi era? Was it
better before?
We have seen in an earlier part
how the apex court usurped the constitutional power of the Executive to appoint
judges. Now this report begins with the assertion that On August 26, the Modi government cleared all nine names sent in by the
Supreme Court collegium for appointment as judges on the Supreme Court. But the point of resentment was
leaving out Akil Kureshi, currently the chief justice of the Tripura High Court
and the second-most senior high court judge in the country.
The report adds:
All decisions in the Supreme Court
collegium are carried out in secret with no record or public communication, so
there is no official reason for why Kureshi’s name was rejected. However, legal
circles point to his being a judge in the Sohrabuddin Sheikh encounter case.
“I have absolutely no doubt he was
extremely fit to be appointed and was excluded purely for extraneous reasons,”
a senior advocate of the Supreme Court, who did not want to be identified,
told Scroll.in. “He ordered the custody
of [current Union home minister] Amit Shah.”
In 2010, Justice Kureshi had ruled that
Shah should be sent to the custody of the Central Bureau of Investigation as an
accused in the murder of Sohrabuddin Sheikh. Shah was later acquitted of the
murder charges in December 2014.
There is also this additional
insinuation…
…legal scholar Anuj
Bhuwania calls this incident a “new low”. “The most shocking thing here is that
the collegium did not even dare to propose his [Kureshi’s] name,” Bhuwania
said. “In fact, for so long, the entire appointment system was paused since
Justice [Rohinton] Nariman insisted on Kureshi’s name being there on the
appointment list.”
For nearly two years
prior to this, appointments to the Supreme Court were paused with no reason
provided. However, the process restarted only five days after the retirement of
Justice Nariman, with the collegium proposing a list of names which prominently
excluding Kureshi.
Thankfully, this report,
with its insinuations, quite capable of lowering the dignity of the courts, has
not invited any prosecution under the Contempt of Courts Act.
More importantly, I have
never heard any politician, except the one who went to jail in Kerala for six
months for referring to a judge of the Kerala High Court as a dimwit, or
bureaucrat refer to our courts and its judges except in respectful terms. But
is the reverse also true? Not to my mind, as the insinuation contained in
‘cherry picking’ suggests.
Judges of the apex court,
S. B. Sinha and Markandeya Katju, had opined that "the only way to rid the country of corruption is to hang a few of
you on the lamp post. The law does not permit us to do it but otherwise we
would prefer to hang people like you at the lamppost … everywhere, we have
corruption. Nothing is free from corruption. Everybody wants to loot this
country. The only solution for this menace is to hang some people in the public
so that it acts as a deterrent on others."
Judges
B. N. Agarwal and G. S Singhvi expressed the same sentiments, by suggesting "for the bureaucracy in the country to
work without corruption, these bureaucrats need to be flogged."
While
one can easily share the ire of these judges, the only thing that I wanted to
highlight here has been the failure of the judiciary to walk the talk.
To
conclude this part, here is a parable involving Swami Ramakrishna Paramahamsa.
A child had the habit of
eating too much jaggery. His mother took him to Paramahamsa. The Swamiji just
made the boy sit on his lap, looked him in the eyes and told the mother to
bring him back after a week. This was repeated a few times. Then, Paramahamsa,
as usual, made the boy sit on his lap and looking at his eyes told him that
eating jaggery is a bad habit and he should not do it. That was all.
Astonishingly, the boy stopped eating jaggery thereafter. The mother went back
and asked Paramahamsa why he took so long to just give that advice. Paramahamsa
replied that initially he himself had that bad habit. He advised the boy only
after giving up that habit himself.
P
M Ravindran/raviforjustice@gmail.com/201021
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