A central government employee who retired at the age of 60,
on the eve of his 61st birthday (60th birth anniversary, date of
birth+60 years) is eligible for 20 percent enhanced pension on attaining 80
years of age (81st birthday, 80th
birth anniversary, date of birth +80 years). If he claimed it on his 80th
birthday (79th birth anniversary, date of birth +79 years) it would
rightly be dismissed by his pension sanctioning authority. If he approached a
court of law, his petition might even be dismissed with costs for wasting
judicial time.
But not so if the petitioner is a former high court judge
approaching the high court where he had been an Acting Chief Justice. Such a
case had been the catalyst for this series and is analyzed in detail at
Judicial Perfidies-1.
It cannot be overstated that the orders of the higher courts-
judgment
dated 15/03/2018 of the Gauhati High Court in case number WP(C) 4224/2016 and judgment
dated 08/07/2019 of the apex court, in SLP (Civil) Diary Number 18133/2018- merely
extended an undue favour to an individual petitioner who had retired as an Acting
Chief Justice of Gauhati High Court.
If this is how judicial decisions are influenced by warped
logic when it comes to deciding cases in favor of a petitioner judge one can
imagine the extent to which logic can be buried when it comes to deciding cases
where judges are respondents.
E.M.S Natchiappan, then Rajya Sabha member heading the
Parliamentary Standing Committee on the Ministry of Law and Justice, had said:
'Judges appointing judges is bad enough in itself; judges judging judges is
worse.'
It doesn’t need Einstein’s brains to acknowledge the truism
in the above view expressed by the parliamentarian.
The foundation on which the credibility of the judiciary
rests is that it is an (impartial) third party in any dispute brought before it
for adjudication.
Let us consider the case of sexual harassment in which the
then Chief Justice of India himself was the accused.
The Print, on 08 December
2021, carried a report ‘‘Was a mistake’: Ex-CJI Gogoi on being on bench hearing
sexual harassment case against him’. (https://theprint.in/judiciary/was-a-mistake-ex-cji-gogoi-on-being-on-bench-hearing-sexual-harassment-case-against-him/778735/ )
The report begins with the
statement ‘Former Chief Justice of India (CJI) Ranjan Gogoi has said that, in
“hindsight”, he should not have been part of the bench that took suo motu
cognisance of news reports on sexual harassment allegations against him.’
It goes on to add: “In
hindsight, perhaps, I should not have been on the bench. But then what do you
do, tell me, if your hard-earned reputation as one of India’s upcoming anchors,
with all the hard work that you put in, is sought to be destroyed overnight
(sic)?” Justice Gogoi said Wednesday.
“Do I expect that you
would act with 100 per cent rationality? Do you think the Chief Justice of
India is not human? Forty-five years of my reputation that I had built in the
bar and bench, by one stroke of pen, is sought to be destroyed,” he added,
speaking to India Today News Director Rahul Kanwal during the launch of his
autobiography ‘Justice of the Judge’.
Of course, much water has
flown down the Yamuna in Delhi, since somebody accused him of sexual misdemeanor,
he took suo moto cognizance of the allegation, presided over the bench that
considered the allegation etc till he retired and got a Rajya Sabha seat and is
a Parliamentarian now, when this confession comes, when it is really
meaningless and everybody involved have carried on with their lives.
Or, is it? Isn’t there
even a lesson to be taken home?
When the Bar Council rules
forbid relations - 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- of
judges from appearing before them as
advocates, just imagine the gross violation of someone sitting in judgment over
allegations against himself.
And what about the Vishaka
Guidelines, issued by the apex court itself in the matter of sexual harassment
in work places? Oh, isn’t that for lesser mortals?
Wow, the CJI is also
human. Thank God for acknowledging that. But, is it only when their own reputation
is at stake that human beings behave irrationally? What about corruption,
favoritism and nepotism?
It was a former CJI, SP
Bharucha, who, when he was the CJI, had admitted that 20% judges in India were
corrupt. This was in 2001. It had been covered widely by the media. In fact
celebrated by both the media and the public as well, because it was something
which was an open secret but none could openly comment for fear of prosecution
for contempt of court. Interestingly, nothing had been reported on how the
figure of 20% was arrived at or what he had done to eradicate corruption in the
institutions that were under his charge. Equally interestingly, Bharucha was
not hauled for contempt of court, for sure.
Many other judges had come
out against corruption in the judiciary. Some of them have been quoted in the
report at https://www.barandbench.com/columns/nine-former-judges-who-spoke-of-corruption-what-ag-kk-venugopal-hinted-prashant-bhushan-hearing.
I am reminded of the
incidence when the editor of a Malayalam daily had presented himself in the
High Court of Kerala on a stretcher and had been promptly hauled up for
contempt. Former judge of the apex court, Krishna Iyer, a doyen among judges
and a nonagenarian by then, had written to the concerned judge on this but he
was also promptly threatened with prosecution for contempt of court. Krishna
Iyer extricated himself by tendering apology which was accepted.
There is another
interesting report at https://timesofindia.indiatimes.com/india/justice-karnan-had-termed-33-judges-corrupt-got-six-months-jail/articleshow/77317910.cms. It highlights the arbitrary manner in which even
contempt of court provisions of the law is used arbitrarily by the judges. In
general, all judges who had spoken of corruption in the judiciary had been
condoned, except one Karnan, who should actually have been considered a whistle
blower. Lawyers have been prosecuted selectively. And the most striking example
is of Adv Prashant Bhushan. While a couple of tweets landed him with a case for
contempt and a one rupee in 2020, another case of serious allegations, of 8 of
16 chief justices of the apex court being corrupt, has been pending against him
for more than decade. For the tweets and how the case progressed please read https://www.hindustantimes.com/india-news/prashant-bhushan-criminal-contempt-case-how-the-case-progressed-in-sc/story-Cn7mKnM3gP8IBa8MxiIcxN.html and https://www.hindustantimes.com/opinion/bhushan-case-sc-sets-a-wrong-precedent/story-VZxBPzTBO7POEzuDsdYf1O.html.
Arun Shourie, an acclaimed
journalist and a former minister in the Union Cabinet, had rightly said in an
interview, ‘Judgments judges deliver, their conduct, determine public esteem,
not a tweet’. (https://indianexpress.com/article/india/arun-shourie-interview-judgments-judges-deliver-their-conduct-determine-public-esteem-not-a-tweet-6563485/)
This part of the critique
is not about contempt of court but about judges judging judges. Contempt of
court cases had just crept in to highlight how even in prosecuting these cases
the courts have not been using uniform yardsticks. (Contempt of court is
anathema in a democracy and what democracy needs is Contempt of Citizen
(Prevention of) Act is what has been the thrust in Judicial Perfidies-3)
While the greater issue of
judgments delivered by our judges shall be dealt with later, here the focus
shall be only on cases involving judges.
The first case that comes
to mind is that of P D Dinakaran. He had been a judge with the High Court at
Chennai before becoming the Chief Justice of Karnataka High Court. But it was
when he was recommended for elevation to the Supreme Court that a spate of
complaints against him became public. In this context, there was an interesting
report in The Economic and Political Weekly (‘The Dinakaran Imbroglio:
Appointments and Complaints against Judges’ available at https://www.jstor.org/stable/25663669) and I quote:
Normally, the secrecy and lack of transparency
surrounding the appointment of judges of the higher judiciary ensures that
citizens come to know of these appointments only after the presidential
notification is issued, announcing the appointments. However, this time, The
Hindu got wind of the five appointments recommended by the Supreme Court
Collegium (five senior judges of the Supreme Court who have been assigned the
power to select judges of the Supreme Court), which included the name of
Justice Dinakaran.
Suffice to say, a three
member committee, headed by a Supreme Ccourt judge with one high court judge
and an eminent lawyer as members, had listed 12 charges against the judge.
Allegations listed in the
impeachment motion against Justice Dinakaran included possessing wealth
disproportionate to his known sources of income, unlawfully securing five
housing board plots in the name of his wife and two daughters, entering into
benami transactions, and acquiring and possessing agricultural holdings beyond
ceiling limit.
Other allegations related
to illegal encroachment on government and public property to deprive Dalits and
poor of their livelihood, violation of human rights of Dalits and poor and
destruction of evidence during official enquiry. (https://www.ndtv.com/india-news/dinakaran-skips-leave-defies-supreme-court-orders-414571)
At the end of the day, he
never appeared before the committee, alleging lack of faith; did not proceed on
leave as directed by the apex court but refrained from judicial functions as
there was threat of boycott by advocates, and finally opted to resign before
being impeached. However, he had not been denied any of the retirement
benefits, including pension and no further action has been reported with
respect to evicting him from encroached lands.
Another judge had who
resigned before being impeached and continued to get all retirement benefits was
Soumitra Sen who was accused of misappropriating public funds he had received
as a receiver appointed by the High Court of Kolkatta. Again, the Rs 32 lakhs
he had allegedly misappropriated and deposited in his personal account between
1993 and 1995 had been returned only in 2006 after he had been elevated to the
High Court in Kolkatta in 2003.
However the first case
where impeachment of a judge was taken up in the history of our judiciary since
independence was that of V Ramswamy of the Supreme Court, for his ostentatious
expenditure on his official residence during his tenure as a Chief Justice of
Punjab and Haryana. A committee composed of Justice P B Sawant of the
Supreme Court, Chief Justice Prabodh Dinkarrao Desai of the Bombay High Court,
and Justice O Chinnappa Reddy, retired judge of the Supreme Court investigated
the affair and found him guilty of 11 out of 14 charges. But the impeachment motion
was placed in the Lok Sabha for debate and voting on 10 May 1993. Of 401
members present in the Lok Sabha that day, there were 196 votes for removal and
no votes against and 205 abstentions by ruling Congress and its allies. The
motion which required two-thirds majority of members present and voting of that
house and an absolute majority of its total membership of that house thus
failed to pass.
Ramaswami therefore went on
retire honorably in 1994.
The interesting thing is
there was a 16-code charter called the “Restatement of Values of Judicial Life”
adopted on May 7, 1997, by the Supreme Court and subsequently by all other
courts (https://theprint.in/judiciary/supreme-court-crisis-these-are-the-16-values-of-judicial-life-our-judges-swore-to-uphold/229845/) and both Soumitra Sen and Dinakaran cases happened
after that. So much for pontification.
What the cases of
Ramaswami, Soumitra Sen and Dinakaran exposes is that judges are human and
hence ought to suffer from human weaknesses, not only when their reputation is
threatened but otherwise also. And the logical conclusion is that we need to
try those accused of misdemeanor among them as per laws applicable to ordinary
human beings.
We have been hearing even
the judges speaking of: (a) be you ever so high, the law is above you and (b)
that unequals cannot be treated as equals. And, the natural law is the higher
you are the heavier you fall.
Given the above
facts/views, there is certainly a need for (a) bringing even the judges under
the purview of all laws applicable to every citizen of the country, (b) making
the punishments for them at least double the severity as applicable for
ordinary citizens and (c) there should be a National Judicial Commission
consisting of members outside the judiciary, except, may be, one member to
guide the proceedings. I reiterate, may be, because even that is not quite
warranted given the vociferousness with which the judicial fraternity has been
objecting to even the law minister as a member in the National Judicial
Appointments Commission. (Judicial Perfidies-2 narrates how the
unconstitutional Collegium for appointment of judges to the higher judiciary
has been institutionalized and how the effort of the Executive, since the time
of Man Mohan Singh as Prime Minister, to recover lost territory, ended with the
National Judicial Appointments Commission Act being legislated by Narendra Modi
led government in 2014 and dumped by the apex court in 2015 as
‘unconstitutional’.
The National Commission to
review the working of the Constitution (popularly referred to as the
Constitution Review Commission, CRC) had indeed recommended a National Judicial
Commission for appointment of judges. (See Judicial Perfidies-2). But the more
important need to have a Judicial Accountability and Disciplinary Commission
was not even considered. What the CRC had reported in this context is this:
In
appropriate cases the Chief Justice of the High Court or the Chief Justice of
India, may withhold judicial work from the judge concerned after the inquiry
committee records a finding against the judge.
In
serious cases, ‘if the decision of the said committee of (seven) judges
recommends the removal of the Judge, it shall be a convention that the judge
promptly demits office himself. If he fails to do so, the matter will be
processed for being placed before Parliament in accordance with articles 124(4)
and 217(1) Proviso (b).’
Now,
these articles, referred to, deal with impeachment of the accused judges,
which, as we know is ludicrous, to say the least. While the serious and non
serious cases have not been identified specifically at least, with examples,
the recommendation to just withhold judicial work from the judges after the inquiry
committee records a finding against the judge without withholding his pay
and perks is the kind of punishment
that this judiciary headed, judiciary heavy commission could think of is
testimony to the extent to which judges and judicial fraternity would go to
keep themselves beyond accountability and scrutiny.
However, way back in
2005, when my experience with the judiciary and quasi judicial organizations
like the consumer fora/commissions established under the Consumer Protection
Act was limited and studies were in a nacent stage I had submitted an online
petition addressed to the President of India and the Prime Minister to
constitute a National Judicial Commission
to try and punish guilty judges as under:
The Commission should have powers to receive complaints against
judges from any citizen of this country.
The Commission should have judicial powers but should have only
one member from the legal profession as in army court-martials.
The Commission should have total powers and resources to
investigate the allegations independently.
The Judge against whom allegation have been made should be
deemed suspended once investigations have been initiated.
The trial should be concluded within three months of initiating
the investigations.
The punishment should be deterrent. It should have atleast twice
the severity as would be applicable for a non-legal person convicted for the
same offences.
The only appeal permitted should be to the President of India
who will dispose it off on the advice of the Vice-President, PM, Speaker of the
Lok Sabha and the Leaders of the Opposition in Lok Sabha and Rajya Sabha
It was supported by 429
citizens.
The issue of judges
judging judges is so serious that it will have to continue in the next part
too. So till then…signing off.
P M
Ravindran/raviforjustice@gmail.com/090122
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