Judgments and Decision making

A decision made by a judge issues out as a judgment. Judges are also human beings. Therefore, they go through the same decision-making process as anybody else.

It is common knowledge that a banker first decides to lend or not to a particular borrower and then the credit proposal or justification for sanction / rejection is phrased accordingly. This is the reason why many loans are born out of impressions. While arriving at decisions affecting others, we always go by perceptions or impressions about others. This normal sequence involved in decision making, that is conclude first and then reason it out, may appear to be putting the cart before the horse. But it saves a lot of time and avoids prolonged haziness or dilemma.

In the court of law, there is bound to be adversarial interpretations about the crucial 'facts'; hence, perceptions of the presiding judge becomes significant. In the Jayalalithaa appeal case, the Karnataka High Court judge Mr.Kumaraswamy has drawn extensive support from a 1977 Supreme Court decision in the matter of Krishnananda Agnihotri vs State of M.P. This case dealt with amounts less than Rs.2 lacs of disproportionate assets. The Supreme Court found that assets were out of proportion to known sources of income by a marginal amount which was less than 10% and therefore the accused was held not guilty. Justice Kumaraswamy considered this a relevant precedent whereas another judge having a different perception about Jayalalithaa or politicians in general might have dismissed this case as irrelevant in view of incomparable amounts.

If there is an appeal in the Supreme Court, we do not know what the apex court will say. But we know for sure that perceptions will play a major part there also. In essence, it appears tricky to side with the sessions judge or the High Court judge. It is however entertaining to hear Karunanidhi quote Mahatma Gandhi ("there is a higher court namely the conscience") or Kushboo ask how Jayalalithaa can get sleep!

Political Chess

Karnataka government has reappointed B.V.Acharya, senior counsel and former Advocate General, as Special Public Prosecutor in the Jayalalithaa case. This case has become a circular game played by politicians and the judiciary. In the game of chess, if the same position is repeated three times, the game is considered a draw. But in politics, there are no rules. Unfortunately, judiciary is no better.

As the present case has shown, different judges of the Supreme Court come to diametrically opposite conclusions even on questions of law and do not hesitate to use strongest possible epithets to bolster their case. It is now not proper to say that the Supreme Court has taken some decision. We can only say that this particular judge has taken this specific position and that too in a particular case. Different cases may witness the same judge take different legal stands.

Acharya had earlier resigned from Special Public Prosecutorship quoting pressure from different sources. Has the pressure disappeared? His reappointment may very well attract further litigation. Government has reappointed him perhaps because the Supreme Court had allowed the Karnataka government and Anbazhagan of DMK to file their written opinions with the Karnataka High Court. Justice Kumaraswamy has been advised by the Supreme Court to ignore all arguments presented orally or in writing by Bhavani Singh. Strangely, the time prescribed by the Supreme Court for the Karnataka government to submit its written opinion is already over. Another Bench of the Supreme Court had earlier advised the High Court to render judgment by May 12th.

The case is now so replete with enigmatic judicial interventions masked as guidance that only one thing is certain: Justice will not be delivered, only judgments will be delivered.

Judicial tamasha

Justice Dipak Misra of the Supreme Court, ruling on behalf of the three-member Bench in the Jayalalithaa Disproportionate Asset case, has struck down the appointment of Bhavani Singh as prosecutor in the appeal before the Karnataka High Court. The learned judge has also said there is no need to appoint another prosecutor and has cautioned the High Court judge not to take cognisance of Bhavani Singh's arguments.

Dipak Misra also clarified  that for the High Court judge "the filament of reasoning will naturally flow from a dispassionate viewing of the evidence".

Asking the High Court judge to be vigilant about the "corroding effect of corruption" and the "gravity of the offence" against the accused in this case, the Bench said it was the duty of the judge to make a "complete and comprehensive evaluation and appreciation of the evidence in its entirety before rendering his judgment".

The Bench advised the High Court to "dispassionately render a judgment which is objectively and resolutely expressed".

Does the High Court need to be advised by the Supreme Court that its judgement should be objective, comprehensive, complete and appreciative of the entire evidence? It is difficult to understand why the Supreme Court prefers to mouth philosophical inanities and evade a direct ruling. We are reminded of Justice Krishna Iyer's evasive comments on 'democratic dharma' while letting Indira Gandhi off the hook during the emergency days. 

It is not our argument that the former chief minister of Tamil Nadu does not deserve any relief. Corruption in Tamil Nadu was not initiated by Jayalalithaa and it will not end with her. Corruption has many patrons across the political spectrum. Perhaps Justice Misra's conscience does not permit him either to come down heavily on or give a clean chit to someone as strong-willed as Jayalalithaa. But he needs to remember that the same problem may be faced by Justice Chikka Rachappa Kumaraswamy of the Karnataka High Court.