Supreme Court of India

We can divide the Supreme Court history into 3 periods. The first was when the judges had good grasp of both law and English (Justice Patanjali Sastry and others). The second crop of judges were adept in English and not so in law (Justice V.R.Krishna Iyer). The present is amateurish in both. 

Chief Justice S.A.Bobde has commented "there is no let-down in crimes against women." This conveys the opposite of what he wants to say. He meant let-up and goofed up with let-down. Let-down means disappointment!

Supreme Court and Chidambaram's bail

Reading the 36 page judgement of the Supreme Court reversing the Delhi High Court decision and granting bail to P.Chidambaram, one gets the impression that one's faith in the judicial process is neither sustained nor restored.

The Supreme Court substantially agrees with the High Court, but cleverly and perhaps cunningly arrives at the contrary decision. The apex court accepts that economic offences are a class apart. It is therefore the case that the tripod test (flight risk, tampering with documentary evidence and influencing the witnesses) is not the only consideration to decide on bail applications. Yet it is also held that bail is the rule and jail the exception.

The sealed cover may contain the reasons why bail is not called for. But then, bail is the rule. The accused is 74 years old. He had to consume antibiotics in jail! Is PC the only pre-trial prisoner satisfying these conditions? The court could have used this opportunity to enquire how many such prisoners were there in Tihar jail itself. Does the court care for equality before the law?

The court accepts that the gravity of alleged offence is a relevant consideration. There is a rider there also. The maximum period of prison sentence for his alleged offence is ONLY 7 years and so bail is the norm.

Tushar Mehta had made it clear to the court that the charge sheet is not yet exhaustive and that further investigation is necessary in the interest of justice. Witnesses had confirmed that they had come under pressure from the accused and his family. All these matter little to the court because the accused is 74 years old and has lost weight while in prison. If these are accepted as exculpatory reasons for lenience in grant of bail, the prisons will become almost empty.

Ayodhya verdict

Ayodhya is an antonym for war. The name is associated meaningfully with the likes of Ram who was averse to waging a war ; Ayodhya can have no attributes of a person, a descendant of Genghis Khan,  who waged multiple wars to gain territory and commit unspeakable atrocities.

It is unfortunate that Indians are known for their xenophilia. Evils emanating from this tendency were highlighted by George Washington in his famous 'Farewell Address': (tedious but worth reading):

"So likewise, a passionate attachment of one nation for another produces a variety of evils. Sympathy for the favorite nation, facilitating the illusion of an imaginary common interest in cases where no real common interest exists, and infusing into one the enmities of the other, betrays the former into a participation in the quarrels and wars of the latter without adequate inducement or justification. It leads also to concessions to the favorite nation of privileges denied to others which is apt doubly to injure the nation making the concessions; by unnecessarily parting with what ought to have been retained, and by exciting jealousy, ill-will, and a disposition to retaliate, in the parties from whom equal privileges are withheld. And it gives to ambitious, corrupted, or deluded citizens (who devote themselves to the favorite nation), facility to betray or sacrifice the interests of their own country, without odium, sometimes even with popularity; gilding, with the appearances of a virtuous sense of obligation, a commendable deference for public opinion, or a laudable zeal for public good, the base or foolish compliances of ambition, corruption, or infatuation.

As avenues to foreign influence in innumerable ways, such attachments are particularly alarming to the truly enlightened and independent patriot. How many opportunities do they afford to tamper with domestic factions, to practice the arts of seduction, to mislead public opinion, to influence or awe the public councils. Such an attachment of a small or weak towards a great and powerful nation dooms the former to be the satellite of the latter."

It is not surprising, therefore, that criticisms abound about the Supreme Court's unanimous decision in the Ayodhya case. Archaeological Society of India had firmly concluded that the Masjid was built on the ruins of a non-Muslim construction. This was typical of the acts of a murderous marauder. Clamour for imparting a higher legal title to a merciless invader indulging in lawless adventure than to wronged and helpless locals is a typical manifestation of spineless xenophilia.

Unlettered rebellion

On November 12, 2017, we wrote under the caption 'Supreme Court' as follows:

"We can expect more fireworks from the Supreme Court in the near future. A recent cartoon regarding the American Congress says that what was meant to be an institution of checks and balances has become an institution of only checks (cheques). It is hoped that our Supreme Court will not reduce itself to be similarly portrayed. " We took exception to the Chief Justice taking administrative decision in a case that potentially involves him.

It is our misfortune that we have been proved correct. Four judges of the Collegium of the Supreme Court  have publicly questioned the administrative style of the Chief Justice.

Legalservicesindia.com says,

"As far as possible a Judge should keep off the media. He should refrain from expressing his views in media on matters either pending before him or likely to appear for judicial consideration. Else he may be accused of prejudging the issue and his neutrality may be questioned thereby. Lord Widgery, Lord Chief Justice of England since 1971 to 1980, said that “the best judge is the man who should not court publicity and should work in such a way that they don’t catch the eyes of the newsmen”. Lord Hailsham said that the “best judges are those who do not find their names in the The Daily Mail and still, who abhor it” (quoted from David Pannick QC, 'Judges')"

Judges are after all human beings. But problem arises when they want to prove this time and again by their behaviour. We sorrowfully witnessed the case of Justice Karnan who egregiously ran his brother judges down and because he was only a High Court judge, he ran into trouble. What the four judges have done in convening a press meet and distributing copies of a letter they had earlier  written to the Chief Justice is karnanesque plus . These four deserve the treatment that was meted out to Karnan with greater force. 

If these recalcitrant judges are treated with kid gloves, such acts of infamy will become frequent. If judges in various High Courts rise in revolt against their Chief Justices, will the Supreme Court have any moral authority to discipline them?

Why did these eminent judges call for a press meet? If the purpose was only to ensure correction of deviant administrative practices, it could be pardoned. The purpose as it turned out was much less noble. As Justice Chelameswar unknowingly admitted, "We don't want some wise men in future accuse us of having sold our souls." They only want to be beyond personal criticism. Their primary intent is not protection of judicial propriety. They have let down judicial dignity trying to promote their public image.

The foursome did not discuss the administrative problem with other judges of the Supreme Court probably because they thought that the Collegium judges were a class apart and it was infra dig to confabulate with their 'juniors'. They claimed in their letter that the Chief Justice was only the first among equals. They failed to realise that puisne judges (there are 20 judges in the Supreme Court junior to the Collegium five) were as eminent as them in their legal expertise and were equally capable of judging cases of 'national importance'. A false sense of superiority misled the four to throw the time-honoured principle of judicial restraint to the winds.

Chelameswar's conduct has been abominable. Immediately after the avoidable press meet, he committed the cardinal indiscretion of meeting a politician, D.Raja. Raja meeting the judge is bad enough. But Raja has gone on record that the suggestion for meeting was made by the judge during a phone conversation. So, Chelameswar took the initiative for a personal meeting with a politician. Far from abjuring politics which a judge is supposed to do, Chelameswar has become incestuous with politics. 

Chelameswar is respected as a judge who maintains judicial integrity. If he himself denigrates judiciary in this manner, we can only fearfully imagine what other judges are up to. We desperately need a renaissance in our legal system with a rules-based legislation on judges' responsibility and duties to keep Karnans and Chelameswars at bay.

The word 'unlettered' also means unenlightened. That is why we call this rebellion unlettered though a letter is the pivot of this controversy.

Supreme Court

The oft-quoted observation of Justice M.Patanjali Sastri in State of Madras vs V.G.Row, Union of India, and others that "Supreme Court has the role of a sentinel on the qui vive" has been perversely perceived by the present generation of judges. Scholarly Sastri meant that the court should eternally be on guard to protect citizens' rights. CJI Justice Dipak Misra seems to have mistaken it to mean that the court ought to jealously protect the interests of the judges.

How else can one interpret CJI's egregious violation of the first principle of natural justice that "no one shall be a judge in his own case" (Nemo judex in causa sua) ?

There is a pending petition of one Prasad Education Trust (PET) in the Supreme Court. It is up for hearing in the court presided over by the CJI. Meanwhile CBI arrested Justice I.M.Quddusi formerly of the Orissa High Court and some of his alleged co-conspirators on the allegation that they were conspiring to subvert justice by bribing judges in the PET case. So there is an allegation, however far fetched or truthful it may be, that the CJI and may be some other judges are sought to be compromised.

Senior advocates Prashant Bhushan and Kamini Jaiswal smelt blood in this development and started playing their card. We will visit this a little later. Before that let us see what the Bhushans think of Misras.

Shanti Bhushan who was the Law Minister during 1977-79 is an eminent lawyer and is Prashant Bhushan's father. In September, 2010 Shanti Bhushan presented a list of 16 judges who he alleged were probably corrupt in an open hearing in the Supreme Court and dared the court to punish him for contempt. (Needless to add , he was not punished lest further skeletons should stumble out of the cupboard.) The list was topped by Justice Ranganath Mishra who was the CJI during  1990-91. The present CJI Justice Dipak Misra is Ranganath Mishra's nephew.

Way back in the year 1979 when Dipak Misra was a practising lawyer, the Orissa government allotted to him 2 acres of land on lease. Dipak Misra, in order to be eligible for this lease, had falsely declared that he was not owning any land. This impropriety was highlighted by Shanti Bhushan in an article he wrote in thewire.in in August 2017 to forestall the possible appointment of Justice Dipak Misra, the then second senior-most judge in the Supreme Court, as CJI . However, Misra took charge as CJI on August 27.

An NGO, Campaign for Judicial Accountability and Reforms (CJAR), filed a petition in the Supreme Court pleading for converting the CBI case in the Prasad Education Trust issue into a court-monitored SIT case. The case was argued by Prashant Bhushan pleading that the case be heard by a larger Bench but without the CJI since there was apparently an allegation against him. Subsequent to the admission of this petition, Kamini Jaiswal's petition seeking a similar remedy was mentioned in the court of Justice Jasti Chalameswar who is next only to CJI in seniority. Justice Chalameswar took cognisance of the seriousness of the issue and ruled that a 5-judge Bench should hear the case and that five senior-most judges would be on the Bench (this obviously includes the CJI also). The five senior-most judges are the CJI, Chalameswar, Ranjan Gogoi, M.B.Lokur and Kurian Joseph. Surprisingly, but significantly, the latter three judges do not figure in the controversial development so far. (It is interesting at least as an aside that Dipak Misra and Chalameswar were appointed to the Supreme Court on the same day, Oct 10, 2011.)

Chalameswar's decision to constitute a 5-judge Bench was over-ruled by a 5-judge Bench consisting of the CJI, Justices R.K.Agrawal, Arun Mishra , Amitava Roy and A.M.Khanwilkar. CJI also ruled that this 5-judge Bench will hear the petitions of Kamini Jaiswal and CJAR. This august Bench has held that the CJI is the master of roster and therefore he alone can decide which case would be taken up by which Bench. Such a scrupulous Bench which is respectful of court procedure is also expected to defer to principles of natural justice and keep the CJI away from a Bench which looks into issues involving him.

We can expect more fireworks from the Supreme Court in the near future. A recent cartoon regarding the American Congress says that what was meant to be an institution of checks and balances has become an institution of only checks (cheques). It is hoped that our Supreme Court will not reduce itself to be similarly portrayed. 

Kind Attention: Tamil Nadu MLAs

Tamil Nadu Governor must insist that the following judgment by Justice Amitava Roy in the Disproportionate Assets case must be read out (alongwith Tamil translation) in the Assembly tomorrow before voting is held.

J U D G M E N T

Amitava Roy, J.

A few disquieting thoughts that have lingered and

languished in distressed silence in mentation demand

expression at the parting with a pulpit touch. Hence, this

supplement.

2. The attendant facts and circumstances encountered as

above, demonstrate a deep rooted conspiratorial design to amass

vast assets without any compunction and hold the same

through shell entities to cover up the sinister trail of such illicit

acquisitions and deceive and delude the process of law. Novelty

in the outrages and the magnitude of the nefarious gains as

demonstrated by the revelations in the case are, to say the least,

startling.

3. A growing impression in contemporary existence seems

to acknowledge, the all pervading pestilent presence of

corruption almost in every walk of life, as if to rest reconciled to

the octopoid stranglehold of this malaise with helpless awe. The

common day experiences indeed do introduce one with unfailing

regularity, the variegated cancerous concoctions of corruption

with fearless impunity gnawing into the frame and fabric of the

nation’s essentia. Emboldened by the lucrative yields of such

malignant materialism, the perpetrators of this malady have

tightened their noose on the societal psyche. Individual and

collective pursuits with curative interventions at all levels are

thus indispensable to deliver the civil order from the

asphyxiating snare of this escalating venality.

4. In the above alarming backdrop of coeval actuality,

judicial adjudication of a charge based on an anti-corruption law

motivated by the impelling necessities of time, has to be

informed with the desired responsibility and the legislative vision

therefor. Any interpretation of the provisions of such law has to

be essentially purposive, in furtherance of its mission and not in

retrogression thereof. Innovative nuances of evidential

inadequacies, processual infirmities and interpretational

subtleties, artfully advanced in defence, otherwise intangible and

inconsequential, ought to be conscientiously cast aside with

moral maturity and singular sensitivity to uphold the statutory

sanctity, lest the coveted cause of justice is a causality.

5. Corruption is a vice of insatiable avarice for selfaggrandizement

by the unscrupulous, taking unfair advantage of

their power and authority and those in public office also, in

breach of the institutional norms, mostly backed by minatory

loyalists. Both the corrupt and the corrupter are indictable and

answerable to the society and the country as a whole. This is

more particularly in re the peoples’ representatives in public life

committed by the oath of the office to dedicate oneself to the

unqualified welfare of the laity, by faithfully and conscientiously

discharging their duties attached thereto in accordance with the

Constitution, free from fear or favour or affection or ill-will. A

self-serving conduct in defiance of such solemn undertaking in

infringement of the community’s confidence reposed in them is

therefore a betrayal of the promise of allegiance to the

Constitution and a condemnable sacrilege. Not only such a

character is an anathema to the preambulor promise of justice,

liberty, equality, fraternal dignity, unity and integrity of the

country, which expectantly ought to animate the life and spirit of

every citizen of this country, but also is an unpardonable

onslaught on the constitutional religion that forms the bedrock

of our democratic polity.

6. This pernicious menace stemming from moral

debasement of the culpables, apart from destroying the sinews

of the nation’s structural and moral set-up, forges an unfair

advantage of the dishonest over the principled, widening as well

the divide between the haves and have nots. Not only this has a

demoralising bearing on those who are ethical, honest, upright

and enterprising, it is visibly antithetical to the quintessential

spirit of the fundamental duty of every citizen to strive towards

excellence in all spheres of individual and collective activity to

raise the nation to higher levels of endeavour and achievement.

This virulent affliction triggers an imbalance in the society’s

existential stratas and stalls constructive progress in the overall

well-being of the nation, besides disrupting its dynamics of fiscal

governance. It encourages defiance of the rule of law and the

propensities for easy materialistic harvests, whereby the

society’s soul stands defiled, devalued and denigrated.

7. Such is the militant dominance of this sprawling evil,

that majority of the sensible, rational and discreet constituents

of the society imbued with moral values and groomed with

disciplinal ethos find themselves in minority, besides estranged

and resigned by practical compulsions and are left dejected and

disillusioned. A collective, committed and courageous

turnaround is thus the present day imperative to free the civil

order from the suffocative throttle of this deadly affliction.

8. Every citizen has to be a partner in this sacrosanct

mission, if we aspire for a stable, just and ideal social order as

envisioned by our forefathers and fondly cherished by the

numerous self-effacing crusaders of a free and independent

Bharat, pledging their countless sacrifices and selfless

commitments for such cause.

............................................J.

(AMITAVA ROY)

NEW DELHI;

FEBRUARY 14, 2017

What is diversity all about?

An AP report says, "In remarks Wednesday night in Philadelphia, Scalia noted that four of the high court's members are from New York City, one is from New Jersey and two are from California.

They are all either Catholic or Jewish. And all nine studied law at Harvard or Yale universities. Scalia questioned whether the court, therefore, expresses "the deeply felt principles of the country.""

There are nine judges in the US Supreme Court. Three are women. One is a black. There is an Hispanic too.Eight are physically sturdy and one (Ms.Ruth Bader Ginsburg) is puny enough not even to occupy a normal chair fully but intellectually robust!

By Justice Scalia's standard, the Indian Supreme Court is quite diverse. Its judges have studied in different law colleges. There are honest and dishonest members on the Bench. There are thinkers and non-thinkers too! But out of 28 judges, only one is a lady. The youngest judge is 58 years old. One (Anil R Dave) is a Chartered Accountant too! They have studied in different universities. Some are gold medallists (of course, many are not).

Opinion of the Supreme Court

Sometimes, the opinions expressed by honourable judges border on the hilarious. During arguments in the Kerala liquor ban case, the Supreme Court judge, Vikramjit Sen, probed the counsel for the state government and said, "In some States, rice left over from the afternoon is soaked in water and taken the next day. It produces a nice (sic) stupor. So what purpose do you serve with this ban... Where are we going with this ban?"

So what is the message? Unless rice is banned, liquor cannot be banned?

Strange justice

Karnataka High Court refused to entertain the bail applications of Jayalalithaa et al keeping in view an earlier observation of the Supreme Court that corruption amounts to violation of human rights. The Supreme Court in its superior wisdom has chosen to ignore its own pronouncements and ordered bail for the four convicts.

Since all four have been granted bail, there are no special considerations like health conditions, gender, age etc. In case such treatment is not extended to various other convicts who have appealed or are in the process of appealing against their convictions, judiciary will be guilty of discrimination.

We have reached a piquant situation where every convict can remain out of jail till the Supreme Court disposes of their appeals. There is only one caveat. Can all these convicts (of whom some are innocent) afford the cost of dilatory and expensive litigation?

So there is bound to be one course of justice to those who can afford to pay the likes of Ram Jethmalani and Fali Nariman and another course for those who cannot. Nothing can be a more offensive travesty of justice.

Allegations of impropriety by former CJIs

Justice Markandey Katju has 'exposed' complicity of three former chief justices of 'Supreme Court' in retention of a 'corrupt' judge. The expose is credible though inordinately delayed.

It is easy to ask why Katju did not prevent / expose the venality when it occurred. As a typical career oriented person, he did not want to throw away the chances of elevation to Supreme Court. Was he derelict? Yes. Did he commit a crime? Obviously, no.

What about Justices Lahoti, Sabharwal and Balakrishnan? Their active connivance was culpably criminal.

There is no denying that power corrupts. A High Court judge becomes accommodative or reticent in order to become a Supreme Court judge. A Chief Justice of the Supreme Court remains pliant to the government of the day in order to retain opportunities for post-retirement sinecures.

But someone has to bell the cat. Indian voters trusted the BJP to reinstate principles of governance and morality. It is not good governance to let the past offenders go scotfree. The ruling party seems to be playing ball with the Congress so that possible skeletons in its own cupboard do not tumble out. This is expedient politics and not responsible governance.

The government should order an enquiry and hold the former chief justices accountable. Any other course of action is despicable compromise.

PS: Justices Lahoti and Balakrishnan have understandably denied the allegations.

Supreme Courts: India and Pakistan

Supreme Court of Pakistan has now declared the emergency imposed by Perez Musharraf unconstitutional and therefore brought him to book for treason. It does not need much courage to hold a former president guilty. But this perhaps points out that law takes its own course, however belatedly, in our neighbouring country.

Indira Gandhi performed a similar unconstitutional act in India. At that time, our Supreme Court expressed a few cliches on 'democratic dharma' and let the matter pass. The supreme court did not find it necessary to pass strictures against this undemocratic act then or any time later. In India, law has a tendency to stand still.