Saturday 6 November 2021

JUDICIAL PERFIDIES-5-201021

 

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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