Judiciary, the punching bag?

John Roberts, Chief Justice of the US Supreme Court, has taken exception to a warning issued by Schumer, an American politician and Senate Democratic leader, to two judges of the Supreme Court. Schumer had earlier said that the two judges appointed by President Trump would 'pay the price' if they voted against abortion rights. (Judicial reconsideration of Roe vs Wade is a recurrent theme in the American legal world.) (Senator Schumer has since admitted that he should not have used the words he had employed.)

Harsh Mander is playing Schumer with the Indian Supreme Court, but without any remorse. He has attributed partiality to judges of the Court on many occasions. He is in the habit of condemning some judgements for not interpreting constitutional provisions 'correctly.' The Supreme Court must come down heavily on persons like Harsh Mander who are bent upon trivialising the course of justice. Inability to accept judicial pronouncements not in accord with one's ideological predilections is an extreme case of intolerance. It is a mark of such intolerant persons to accuse others of intolerance and subversion of 'secularism'.

Corruption in judiciary

Justice Kurian Joseph who retired recently from the apex court has told news reporters:

" I  will never really agree that there's corruption in higher judiciary. If it is in the lower judiciary, it is the state's concern. In the higher judiciary, it has not come to my notice."

The learned judge is wrong on two counts. First, absence of corruption in higher judiciary is too good to be true. What readily comes to mind is the rhetorical statement that absence of proof is not proof of absence. Kurian Joseph was among those who implicated directly or indirectly the then CJI  in a medical college corruption case. However, one fervently hopes that Kurian Joseph's view as stated now, on corruption is true.

Secondly, is corruption in the lower judiciary the concern of only state governments? Can the Supreme Court wash its hands off what is happening in lower judiciary? This amounts to judicial dereliction. Simultaneous display of overreach and dereliction by the apex court may be entertaining but is also deleterious in its implications for the society.

Judicial overreach

Congress party keeps accusing Narendra Modi of crony capitalism and corruption in the Rafale story. BJP wonders why the Congress is not approaching the courts. Congress may similarly wonder why the BJP is not seeking judicial remedy in case Modi is honest and he is defamed by the Congress.

The answer is simple. People want to avoid approaching police and judiciary as much as possible. Police would harass the complainant. Courts would test the patience of petitioners. Filing cases in our courts would result in loss of money, waste of time and all these without a guarantee that justice would be delivered.

In this milieu, it is distressing to note that the Supreme Court is widening its powers by invoking concepts like constitutional morality and constitutional silence.

What is constitutional morality? We understand constitutional principles. Who knows what is constitutional morality? It is what the judge says it is ! Is morality not indivisible? Do we have political morality, administrative morality, medical morality and so on? We have overarching principles like primacy of truth and merits of  honesty which are applicable across the board. Inventing a new kind of morality like constitutional morality will only make the legal conclusions unpredictable and more at the mercy of subjective views of judges.

Under the concept of constitutional silence, courts will go beyond interpreting the constitution's various articles and start guessing what the constitution-framers intended but failed to provide for. Are judges so exclusively empathetic of the constitution-makers?

Tampering with judiciary

NDA is following Indira Gandhi's policy of inconveniencing the judges who dare to pronounce judgments against the powers that be. The latest victim of this obscurantist policy is Justice Jayant M.Patel.

Justice Patel who in the normal course would have become Acting Chief Justice of Karnataka High Court in October was transferred to Allahabad High Court. He put in his papers.

This is an unsavoury incident that projects the government in bad light. The Supreme Court collegium seems to have fallen in line. A spineless judiciary guarantees unjust government.

Feminine Justice

Something exceptionally coincidental has occurred in the field of Indian judiciary. The three oldest High Courts namely Calcutta, Bombay and Madras are now headed by female chief judges. So also is the Delhi High Court.

Dr.Manjula Chellur is the Chief Justice of the Bombay High Court. The next senior-most judge also is a lady. The Calcutta High Court is headed by Ms.Nishita Nirmal Mhatre. Ms.Indira Banerjee adorns the post in the Madras High Court and Ms. Gita Mittal in Delhi.

All these are eminent judges and are not beneficiaries of chivalry. It is believed that females are less corrupt. It is therefore possible that Indian judiciary is becoming more honest.

Fragile Justice

CJI Mr.Khehar has publicly announced that a friend who is very close to him will not be allowed to argue in his court. This move is perhaps to preclude charges of partiality. The intention is good. How practical is this as a guarantor of fairness in justice delivery?

Other judges now know that this advocate is close to CJI. Human as they are, will they ensure that no special treatment is meted out to him? After all, as the popular saying goes, "A great lawyer is one who knows the law. A successful lawyer is one who knows the judge."

This is not to say that there is cronyism in entire judiciary. This only shows the difficulty, if not impossibility, of avoiding personal bias while hearing cases. Cronyism may not subvert justice. But it certainly tilts justice in favour of the friendly, the known and the accommodative.

Bias arises not only due to friendship, but also due to cultural and social factors. E.M.S.Namboodripad controversially observed, “between a well dressed pot-bellied rich man and a poor ill-dressed and illiterate person the judge instinctively favours the former”. 

Judicial highhandedness

The High Court of Uttarakhand did not cover itself with glory when it thundered,  " the president of India is not infallible and he, too, can go wrong. Therefore, the President's decision is open to judicial scrutiny.

"Absolute power can spoil anybody's mind. Even the president can go wrong and in such cases his decisions can be subjected to scrutiny. Indian courts have the power to scrutinize all orders."

This factual statement could have been conveyed better by avoiding the belligerent tone.

The court ought to have remembered that it too is not infallible. The court felt offended that there was an apprehension that the central government might revoke the president's rule before the court's decision was announced. The court is not supposed to work on the basis of apprehensions. Even if the central government ventured to revoke the Article 356 proclamation in a hurry, the government's action would continue to be justiciable. Courts exist to pronounce its views on legality or otherwise of actions. It is not in their remit to preempt apprehended actions even when their (actions') legality is arguable.

To use the current fashionable word, the court has only exposed its own 'intolerance' towards a political act. The majestic court has only demeaned itself by being 'pained' over a political controversy.

Judicial independence vs judicial integrity

Supreme Court's judgment invalidating the 99th amendment to the Constitution and restoring the Collegium system with an attempt to remove the warts in the Collegium system has naturally attracted plenty of comments.

Ram Jethmalani is happy that the Supreme Court has regained its prestige and primacy. Ministers in the central government have viewed the decision as expressive of tyranny of the unelected over the elected. That the NJAC Bill was passed unanimously by the Parliament is mistakenly interpreted as the unanimous view of the citizens of the country. This only manifests the arrogance that citizens have no right to think differently from their representatives.

Participants in this intense debate are fixated on independence of the judiciary. True, the separation of powers among the executive, legislature and the judiciary is sacrosanct and cannot be meddled with lest the basic structure of the Constitution (apropos the Keshavananda Bharati case) is disturbed. The requirement of judicial independence mandates non-interference by the other two wings in its processes. But it is debatable whether this desideratum empowers the judiciary exclusively to choose its members (judges) and obligates the legislature and the executive to abstain from this selection procedure / process.

Be that as it may, what is more important and unfortunately more missing is the integrity of judges. Indian judiciary is what it is today (Justice Markandey Katju says it is beyond redemption) more because of the integrity factor than the independence factor. It is time that we demand the judges to correct themselves.

Jayalalithaa appeal case: Act in haste; repent at leisure

In page 852 of his judgement, Justice Kumaraswamy has, inter alia,  included the loan raised by Jaya Publications amounting to Rs.1.50 crore from Indian Bank. While totalling all such loans, the figure has apparently been taken as Rs.15 crore thus accounting for a mistake of Rs.13.50 crore.

This mistake is fatal to the learned judge's rationale for exonerating Jayalalithaa and others. This is a classic instance of a person deciding first and appending reasons later on. Once the decision-maker has started owning a judgement whatever be its demerits, the tendency will be to be careless in providing basis for the decision.

It would appear that the judge has come under a lot of pressure, self-imposed or externally originated, and has bungled in the process. The Supreme Court erred in imposing an impossible time limit for disposal of appeal. This was aggravated by Justice Dipak Misra's philosophical advice on how to handle evidence. If prosecution had been allowed to play its expected role, the blunder under reference might have been avoided.

In sum (pun not intended), judiciary has egg on its face.

Pragmatism mocks at morality?

In the Jayalalithaa appeal case, Justice C.R.Kumaraswamy has gone by the precedent set in the year 1977 by the Supreme Court. The learned (pragmatic?) judge has also calculated the value of disproportionate assets in a way that intentionally or otherwise went in Jayalalithaa's favour.

Irrespective of whether Jayalalitha (as her name was then spelt) was corrupt or not in her initial term as chief minister (1991-96), her obscene demonstration of wealth was repulsive. There is one school of thought that discharging her from corruption charges sends a wrong signal to others, would incentivise corrupt behaviour atleast on the part of others and would further erode people's diminishing faith in judiciary. This is no doubt a noble thought.

On the practical side, what would have been the consequence of the High Court upholding the finding of the trial judge, Justice Michael D'Cunha? Probably, DMK would have replaced AIADMK as the ruling party post- 2016 state elections. DMK's redoubtable leader is alleged to be even more corrupt and on top of that, his family is mired in the 2G scam. So the consequence might not have pleased the protagonists of  theory of morality.

If Kumaraswamy's mind was agonising over the need to deliver an ethically unexceptionable judgement that would not lead to unintended consequences, he would have been caught in the horns of an intractable dilemma. If he were an adherent to 'nishkama karma', his judgement would have been otherwise. In the event, he has proved to be pragmatic and a skillful practitioner of the art of the possible by choosing a particular precedent set by the Supreme Court and in the process perhaps ignoring some other precedents to the contrary.

This raises an important legal issue. The repertoire of legal precedents set by the apex court is so rich and varied that it is possible for any lower court to cherry-pick a precedent to justify a judgement. There is an urgent need for a group of jurists to collate binding principles / precedents in the area of corruption. Else, there is no purpose in judicial pontifications that "we have zero-tolerance for corruption". As Justice Kumaraswamy has shown, there is now a 10% tolerance for corruption !

"Live and let live" judiciary

In September, 2014, a special court in Bangalore sentenced Jayalalithaa to four years of rigorous imprisonment and levied a fine of Rs.100 crore. The Hindu claimed  'Despite the protracted and tortuous course that the legal process took in this case, justice seems to have been finally done.' 

In May 2015, the Karnataka High Court upholds Jayalalithaa's appeal against the judgement of the special court. Evidence is the same. Two judges reach diametrically opposite conclusions. Judges are human and therefore are pliable. Judgements depend on prejudices, ideological / political predilections and, sad to add, venality of judges. It is no wonder that the common man has lost confidence in the judiciary as a bulwark of justice.

Only one thing is clear. A poor unfortunate person is a victim of judicial vagaries whereas the rich can exploit the same vagaries till they get relief. Salman Khan and Jayalalithaa will be protected by the court whatever be their infraction; the poor will be punished even if they are law-compliant. Indian judiciary has been captured by the rich and the powerful.

National Judicial Appointments Commission (NJAC)

The Supreme Court is now hearing the case relating to appointment of judges in the High Courts and the Supreme Court. The Collegium system is in vogue now under which the names for filling up the vacancies are recommended by senior judges of the apex court and approved by the executive.

The executive wanted a greater role in judicial appointments and thus NJAC was sought to be formed. Requiring the court to sit in judgment over legality of NJAC is prima facie odd since the judiciary will not willingly let go its autonomy over appointment of judges. Whatever else may or may not be the ills of judiciary, it is never free from possessiveness. Some of the observations made by the 5-judge Bench hearing the case are a cause for concern.

The cosy club of judges does not want to give up the sole right to appoint their brethren and occasional sistren. It is strange but enlightening to hear the following confession from Justice Khehar who is heading the Bench: "The collegium, when it selects a name for appointment as judge, looks at only the candidate's judicial capability. It is left to the executive to do a profile check on the candidate's moral and professional integrity." Has he deliberately scored a self-goal? Does he expect the executive to be more concerned about the ethics than the judiciary?

The Bench has asked the attorney-general the following :

“How many names were recommended by a high court collegium but the Supreme Court returned them on the ground of doubtful integrity… How many names were referred by the Supreme Court collegium but the government returned them on the ground of doubtful integrity… How many names were sent back by the Supreme Court collegium after the government returned them on the ground of doubtful integrity?”

Is this information not available with the court? Is doubtful integrity such an open and shut case that it is transparent for the whole world to see and be unanimous about?

Prashant Bhushan has opined that NJAC may be as bad a system as the collegium. He may be cynical, but he seems to be clairvoyant too. If we are unable to trust either judiciary or the executive, the situation is rather grim.

An insult to judiciary

An application for anticipatory bail was filed in the Supreme Court by activist Teesta Setalvad.  Ms.Setalvad is accused of misappropriating contributions received apparently for post-Godhra riot victims. Gujarat state police contends that the accused is not forthcoming with details of accounts and therefore seeks custodial questioning. Gujarat state government and Setalvad are sworn enemies. So, it is difficult to comment on merits of their respective contentions.

But what is astonishing and in fact disgusting is the way in which proceedings have started in the Supreme Court. The petitioner questioned the objectivity of the two judges constituting the Division Bench because Narendra Modi had attended the marriages of children of these two judges! This is at best a ridiculous reason and is certainly a condemnable contention. By the same logic, one may say that Teesta Setalvad's grand-father M.C.Setalvad was a legal luminary connected one way or the other to all justices of the court and therefore no judge can hear a petition filed by her.

The Bench was reconstituted in an inexplicable act of compromise of judicial dignity. Prashant Bhushan waxed proud: "It has been brought to my notice that Mr. Narendra Modi was an invitee of, and recently attended, the weddings of the children of Justices Mukhopadhaya and Ramana, who are hearing the case of Teesta Setalvad. The allegation of Teesta in this case is that she is being hounded by the Gujarat Police since she had played a leading role in exposing the role of Modi in the Gujarat carnage of 2002, and is seeking accountability for it. In these circumstances, the question has arisen whether it would be appropriate for these judges to hear this case”.

Judicial mess

Justice Markandey Katju has stirred up a hornet's nest by disclosing certain unsavoury details about appointment of an additional judge in the Madras High Court. The facts of the case have been questioned by some and the timing of disclosure has been lambasted by many.

The facts are indisputable because they had been verified earlier in a public interest litigation filed by Shanti Bhushan (Shanti Bhushan and another vs Union of India - 2007) in the Supreme Court. (Though one may disagree with Bhushan's political views, he deserves respect for championing the cause of justice in many petitions he has filed.)

Timing of disclosure may be motivated. All actions have a motive. Motives behind an action do not necessarily delegitimise the action. It will be hypocritical to pretend otherwise.

So, where do we go from here? The most important learning points from this incident are that political interference in judicial appointments is undeniably present and that higher judiciary lacks the moral courage to resist political pressure. Facts like that Manmohan Singh was an active collaborator in commitment of egregious impropriety are too well known to be recounted here. So we stay away from the obvious.

Therefore we need to create a system or modify the present system of judicial appointments so that political pressures will be kept at bay and the selectors of judges will act ethically.

Formation of a judicial appointments commission whose members will be nominated by a team consisting of the prime minister, leader of opposition, chief justice of the supreme court etc. has been advocated by many legal luminaries. This suggestion is blatantly fraught with political gaming and therefore will only transport us from frying pan to fire. It is better to keep all politicians including the prime minister and the leader of opposition from this exercise. They have repeatedly proved their incapacity to rise above narrow politics.

The present collegium system is theoretically sound. It was misused because judges with feet of clay had become senior most judges. In addition, opacity characterised the functioning of the collegium.

Laying out clear criteria for selection of judges and mandating transparency in collegial decision-making processes are the way to stem the rot in judiciary. The rest is a matter of detail.

Added on 28th July:

It is uninspiring to note that erudite lawyers like Soli Sorabjee and Fali Nariman are questioning the wisdom of Katju's criticism of delinquent chief justices. Their argument is specious and misleading. According to them, Katju should not comment on Justice Ashok Kumar because the latter is no more. Katju should not comment on chief justices because it will bring down the image of judiciary. So, avoid comments on the dead and the living. What are they afraid of? 

Supreme Court's perfidy

The Supreme Court has decided that its administration will not entertain the complaint against Justice A.K.Ganguly on the specious plea that he is retired and that the complainant intern was not employed by the court. The following statement has been issued by the Chief Justice:

"As decided by the Full Court in its Meeting dated December 5, 2013, it is made clear that the representations made against former Judges of this Court are not entertainable by the administration of the Supreme Court,” the CJI’s statement said.

It is a shameful abdication of the court's responsibility. If this is the guiding principle, why did the CJI form a committee of judges to hear the complaint in the first place?

The following extract from the same newspaper report makes Supreme Court's uneasy dithering obvious:

"The CJI said that taking cognizance of the fact that such allegation against a Supreme Court Judge will have a direct bearing on the institution’s reputation and credibility, he had on the same day appointed the three-member committee to ascertain the truth of the allegations."

The committee observed that "complainant's statement prima facie discloses an act of unwelcome behaviour by Justice Ganguly". This Eureka conclusion only begs the question. Everyone knows the complaint. We don't require an august committee of honourable judges to read and interpret the complaint. We expected a finding on guilt or otherwise of the retired judge. Sadly, the committee has only dilly dallied. It appears that the court is not yet ready to dispense justice.

Judiciary's reputation at stake

Among various institutions in India, judiciary has been by far the least tarnished. Even after discounting the opacity that surrounds the happenings in various courts, the judicial system has not yet become a festering disgrace.

But alas! things are fast achanging. An intern has reported sexual harassment by a recently retired judge of the Supreme Court. One hopes this will be honestly investigated and the nation taken into confidence. But so far, the preliminary moves are not promising.

Supreme Court on oral orders

In a petition filed by many concerned citizens including retired civil servants, the Supreme Court of India has ruled that civil servants are not expected to be guided by oral orders of superior officials and political authorities.

Our governance is at such an abysmally low level that a court has to intervene and advise what the civil servants are supposed to be governed by. Will this ruling make any difference  to our administrative culture? Probably no.

It is feared that even some judicial orders are based on oral instructions from the powers-that-be. If that be the case, where is the solution? Integrity and fairness continue to be a mirage in our culture of self-interest and subservience.

Crime and Punishment

Following is a report from NYTimes:

"WASHINGTON — Little more than a year ago, Jesse L. Jackson Jr. was a popular young Democratic congressman pushing to increase the federal minimum wage, an issue that fit his reputation as an advocate for the less fortunate, especially those in his Chicago-area district.

But on Wednesday, the former congressman was a felon standing in a federal courtroom in Washington to receive his sentence.

Mr. Jackson, 48, received 30 months in prison for spending $750,000 from his campaign on personal items. His wife, Sandi, 49, was sentenced to 12 months in prison for omitting $580,000 in income from the couple’s tax returns while they lived lavishly.

“The inescapable fact is that you and Sandra Jackson used campaign funds to sustain a lifestyle that you cannot afford,” Judge Amy Berman Jackson said before announcing Mr. Jackson’s penalty.

The judge granted a request from the couple, who have two children, ages 9 and 13, that they be allowed to serve their sentences one at a time. Mr. Jackson will report to prison on or after Nov. 1. When he is released, Ms. Jackson will have 30 days to surrender.

“I am the example for the whole Congress, and I understand that,” Mr. Jackson told the judge. “I didn’t separate my personal life from my political activity, and I couldn’t have been more wrong.”

Mr. Jackson wept as he stood before the packed courtroom in United States District Court. He apologized to his parents, who sat in the front row next to his siblings, and said he accepted responsibility."

The newspaper adds:

"A lawyer for Ms. Jackson, Dan Webb, sought to portray his client as a doting mother whose absence would cause deep psychological damage in the children. He had requested a sentence of probation with community service.

In rejecting that request, Judge Jackson said to Ms. Jackson: “The court did not put your children in this position. The government did not put your children in this position.” "

Would a similar thing ever happen in India? Will our courts work speedily, will our politicians feel remorse for their pervasive peccadilloes?

Corruption in judiciary

Newspapers dated 21st April highlight incidence of corruption in judiciary.

Relatives of a former Chief Justice of India amassed wealth during his occupation of the highest judicial post in the country. Ofcourse everyone knows this already. It is unfortunate that no action is taken or even contemplated against him.

The other report refers to a judgement of the Madras High Court. An advocate had sought to get information on the number of complaints received by the Vigilance department between 2001 and 2010 against judicial officers in the subordinate judiciary. In January 2012, the Tamilnadu Informationn Commission directed the court's Registrar General to furnish this information. This order has now been set aside by the High Court.

Reasons? The High Court says, 1) If the information is provided, it will adversely impact the normal, regular and 'serene' functioning of the court on the administrative side, 2) the information sought pertains to the internal delicate functioning of the High Court and related to invasion of privacy of respective individuals, 3) the information asked for has no relationship to any public interest and 4) if the information is provided, it would open the floodgates to many more applications.

Is the High Court saying, "We have a sacred right to be corrupt; who are you to seek information?" 

What is humanitarian?

Supreme Court has allowed Sanjay Dutt to delay getting into prison by four weeks on "humanitarian" grounds!

The word 'humanitarian' refers to promotion of human welfare or alleviation of human misery. Permitting Dutt to complete his shooting engagements by postponing his reentry into jail is certainly not a humanitarian act. This is a blatant misuse of court's discretion resulting in disgrace to justice. Supreme Court deserves better judges.

It used to be said that howsoever high you may be, the law is above you. That hallowed principle has been undone.