LAW RESOURCE INDIA

SHOULD JUSTICE DINAKARAN BE PROVIDED A CHANCE TO DEFEND HIMSELF

Posted in CONSTITUTION, CORRUPTION, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on December 19, 2009

In my earlier Blog writing when the Dinakaran episode first came to light I had written that the Campaign for Judicial Accountability and the Senior Advocates of the Supreme Court should bring to the notice of the Public at large the specific allegations against Justice Dinakaran. Till today what we have herad is that Justice Dinakaran is involved in Land Grabbing case. Till the  public at large are not told the specific charges and also whether they have been investigated or not the Justice Dinakaran episode will become murkier.

What is needed that the Charges against Justice Dinakaran be brought out in public domain and Justice Dinakaran need to be provided a chance to put forward his defence. This is more important as in public he has denied all the allegations.

Till that does not happen all types of allegations and counter allegations will continue and the cause of Judicial Accountability will suffer.

In this context I am mentioning some articles which have appeared in the Media and in my view Vinay Sitapati article in The Indian Express – “Hear Him Out has come in at the right time. I am also attaching the article of Times of India which has reported that “Justice Dinakaran is being hounded for being a Dalit”

We have to adhere to the maxim of Audi Alteram Partam . We have to give Justice Dinakaran a chance to defend himself before reaching conclusions.The CJI and the SC Collegium  has also rightly taken the decision to put Justice Dinakaran elevation in abeyance.

Ravi Kant , Advocate , Supreme Court of India

HEAR HIM OUTVinay Sitapati in Indian Express

“Audi Alteram Partem”, goes the foremost rule of natural justice. Hear the other side out. Have we heard out Justice Paul Daniel Dinakaran?

This is not to defend the Karnataka High Court Chief Justice, to decry the mobilisation against him, nor to oppose his impeachment. It is to ask a question of procedure. For here’s what we know about Justice Dinakaran: (1) A district collector’s official report has found against him, (2) the law ministry has opposed his elevation, (3) 75 Rajya Sabha members have signed onto his impeachment notice, (4) the Supreme Court collegium has decided to keep his elevation “in abeyance”.

In short, we know that a full four separate institutions have already judged him in some way. Yet, where is the space for the judge to defend himself, to present his own counter-arguments? The humblest of petitioners to appear before Justice Dinakaran probably enjoyed more legal due process. Is this fair entry to (or exit from) the world’s most powerful court?

Reports suggest that after the hue and cry over his proposed elevation, the “collegium” of the 5 senior-most Supreme Court judges invited Justice Dinakaran to reply to the allegations against him. But it’s hard to know for sure, as this was a secret hearing; records are not available to the public or to the parliamentarians who have signed on to the impeachment notice. According to Section 3(4) of the Judges (Inquiry) Act, 1968, Justice Dinakaran will get a “reasonable opportunity of presenting a written statement of defence” before an Inquiry Committee during the impeachment proceedings. But this too will be secret and is unlikely to assuage the court of public opinion.

Justice Dinakaran’s best chance to defend himself is before Parliament, at the fag end of the impeachment process, just before the vote. This has proved a powerful mechanism. During the parliamentary debate over the impeachment of Supreme Court Justice V. Ramaswami in 1993, his lawyer Kapil Sibal made a blistering presentation in his defence. The vote that followed lacked the numbers to impeach the judge. But if and when Justice Dinakaran gets a similar chance, he would have already been judged many times over. He will have been tainted in the public eye for far too long to recover.

Contrast this with the United States of America. When judges are nominated by the president, they are publicly interrogated by the Senate; the often acerbic proceedings make great prime-time television viewing. Some of this is cruel, and in India will be considered in bad taste. During the senate confirmation hearings of Justice Clarence Thomas, he was questioned on his taste for pornographic films. More damaging, his former employee testified that he had sexually harassed her. But, and this is key, Justice Clarence Thomas was given the opportunity to publicly counter these allegations. And did he do so! In a now famous speech to the Senate Judiciary Committee, watched by millions on television, he said: “This is a circus. It’s a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves.” In the vote that followed, Justice Thomas’s appointment was narrowly confirmed. There is little evidence to suggest that the allegations against him have impaired his ability to judge effectively. Along with the pain of accusation, came the power of self-exoneration.

Indian Supreme Court nominees are given no such forum to publicly refute allegations against them. There is no executive or legislative confirmation of their appointment. India’s Supreme Court self-selects, and the collegium’s decision is shrouded in secrecy. Judges are also not encouraged to give press conferences (notwithstanding the couple of terse ones Justice Dinakaran has given in his defence). But the flip side to this opacity is that when allegations do surface, there is very little their lordships can do to publicly clear their name.

This unfairness has little to do with the particulars of Justice Dinakaran’s case. Rather, it is the byproduct of our judicial selection process. Precisely because judges don’t open up to questioning, they deny themselves the power to brush off the mud slung at them. When you refuse to enact clear-cut procedures to try judges, you have no armour from the rumours, innuendos and allegations in the court of public opinion. When you are not answerable to anyone, you find yourself unable to answer back.

vinay.sitapati@expressindia.com

http://www.indianexpress.com/news/hear-him-out/556298/0

Containing the damage – THE EDITORIAL IN HINDU

It is the right decision, but one that took a bafflingly long time to arrive at. The procrastination of the collegium of judges headed by the Chief Justice of India, K.G. Balakrishnan, in virtually withdrawing its controversial August 27 recommendation to elevate Karnataka Chief Justice P.D. Dinakaran to the Supreme Court has done incalculable harm to the image of the judiciary. The delay was accompanied by a surprising attempt to pass the buck, with Chief Justice Balakris hnan requesting the Centre to conduct an independent probe into certain allegations against Justice Dinakaran, which the Law Ministry politely — and quite correctly — turned down. With the Centre rejecting the recommendation to accommodate Justice Dinakaran in the Supreme Court, the sustained campaign against his elevation by members of the bar, and the impeachment process set in motion by Opposition MPs in the Rajya Sabha, there was considerable pressure on the collegium to withdraw its recommendation. It would have been far better if the collegium had taken a quick decision on merits rather than give the impression that it was forced to act in the face of an escalating controversy.

The allegations against Justice Dinakaran remain unproven as of now. Yet they are extremely serious and two reports from a district collector have lent credence to at least the ones relating to land encroachment in Tamil Nadu. His refusal to resign in the face of the ugly controversy and erosion of public confidence has called attention once again to the need for a quick, fair, and effective statutory mechanism for enquiring into judges’ conduct and suggesting appropriate action. The process of impeachment is cumbersome and uncertain, and is often overwhelmed by political considerations. No judge has ever been impeached and the uncertain nature of the process stood out in 1993, when the motion against Justice V. Ramaswami was defeated, with the Congress abstaining. In the light of the Justice Dinakaran controversy, Law Minister Veerappa Moily has suggested a Judges Standards and Accountability Bill. The in-house enquiry system put in place by the Supreme Court has proved wholly inadequate, and a more effective mechanism is needed to enquire into charges against judges. The question of removing a judge always invites another: why was he or she appointed in the first place? Proposals to set up a broad-based and independent National Judicial Commission with the power to appoint, and enquire into the charges against, judges have been made time and again. The Justice Dinakaran controversy is a warning that no further time should be lost in putting in place a more transparent appointment process and in strengthening judicial accountability.

Dinakaran will continue in his post: CJI J. Venkatesan

Collegium requests government to keep his elevation in abeyance pending probe

New Delhi: Chief Justice of India K.G. Balakrishnan on Friday made it clear that P.D. Dinakaran will continue as Chief Justice of the Karnataka High Court and that the Supreme Court collegium had requested the Union government to keep his elevation to the Supreme Court in abeyance pending enquiry.

Asked about the collegium’s decision on Thursday, Justice Balakrishnan told journalists: “There was no question of the collegium recommending elevation of Justice Dinakaran. How can we consider his elevation when the impeachment motion is pending in Parliament? There is no question of bringing him to the Supreme Court at this stage. We are requesting the government to keep the recommendation in abeyance till the enquiry.”

Asked whether he would advise Justice Dinakaran not to take up any judicial work or to go on leave, Justice Balakrishnan said: “How can I give any such advice. High Courts are not under the supervisory control of the CJI. Justice Dinakaran himself thought it fit not to sit in the court to take up judicial work in the last few days.”

To a query about the demand of Karnataka lawyers that Justice Dinakaran should be transferred, the CJI said, “now that Justice Dinakaran is not exercising any judicial work, they should feel happy.”

Asked whether the collegium would still consider his transfer to any other High Court, the CJI said: “that option is there. But for the moment we are not doing anything. He will continue.”

On the impeachment proceedings, the CJI said: “I have nothing to do with that. So far I have not received any communication from the Chairman of the Rajya Sabha in this regard.

Though there was no requirement that I [the CJI] should be consulted, out of courtesy, the CJI is consulted for nominating a Supreme Court judge and one High Court Chief Justice for the enquiry.” Asked about Justice Dinakaran denying the allegations in a television interview, he said: “Let him prove his innocence in the enquiry.”

Return of file

On the government returning the file of Chief Justice of the Allahabad High Court C.K. Prasad for elevation to the Supreme Court, the CJI said: “I was informed that the file is being returned. I have not seen it. We will have to see what is the clarification sought then we will reply.”

Asked why no woman judge was being appointed to the Supreme Court, the CJI said “there are reasons which I cannot divulge. I cannot bring down the reputation of a Chief Justice [woman] by giving the reasons. Normally we won’t do that. There are six or seven judges who are now eligible for appointment to the Supreme Court.”

Judge: can Dinakaran take administrative decisions? Staff Reporter

BANGALORE: Justice D.V. Shylendra Kumar of the Karnataka High Court, who first voluntarily declared his assets, has asked the Registrar-General to call a meeting for Saturday of all judges, including Chief Justice P.D. Dinakaran, to discuss the “propriety, justification and desirability” of the Chief Justice to take administrative decisions when he has decided not to take up judicial matters.

Justice Kumar, who is currently sitting on the Circuit Bench at Gulbarga, faxed a letter to Registrar-General (RG) R.B. Budhihal and directed him to circulate a requisition on his behalf for holding a meeting of judges at 11 a.m., at the conference hall of the High Court.

“In the wake of the news that the Chief Justice of the Karnataka High Court is not sitting on the Bench and will not be discharging judicial functions until notified otherwise, I naturally expected that the Chief Justice will gracefully proceed on leave and will henceforth desist from exercising any functions which are part of the duties and responsibilities of a Chief Justice of the High court and even if one should not proceed on leave, I expected the Chief Justice not to exercise any authority and act on the administrative side of the High Court which power and authority is a very important incidental function of the Chief Justice,” Justice Kumar said.

The Chief Justice, he said, exercised vast and important powers on the administrative side also. “If a person is under a cloud, then it is highly desirable that the Chief Justice is prevented from exercising and using his powers on the administrative side also.”

Justice Kumar said that after he read the news that the Chief Justice would not henceforth exercise any judicial function until notified otherwise, he called the Registrar-General who informed him that the Chief Justice would continue to exercise his authority on the administrative side.

Justice Kumar said all judges of the High Court should sit and discuss the matter and take a collective decision.

Justice Kumar said he had learnt that Justice Dinakaran, before whom Mr. Budhihal had placed his letter, had declined permission for the Saturday meeting. “This is not a matter over which the Chief Justice should take a decision,” Justice Kumar said.

DINAKARAN BEING HOUNDED FOR BEING A DALIT

TIMES OF INDIA

NEW DELHI: Dalit MPs have come out against the impeachment motion moved against Justice P D Dinakaran, chief justice of Karnataka High Court, alleging that he was being persecuted for being from the Scheduled Castes.

The parliamentary forum of SCs, which includes MPs cutting across party lines, came out strongly against the impeachment move which, incidentally, has been admitted in Rajya Sabha.

Calling it “discrimination”, the dalit MPs passed a resolution demanding that an inquiry should be instituted against all judges who have charges of corruption against them and one person should not be singled out.

SC forum chairman Radhakant Nayak told TOI that the resolution would be submitted to Prime Minister Manmohan Singh.

The move may put the Centre in a quandary over the impeachment proceedings in the upper House. It is, however, significant that Congress MPs have not signed the memorandum for impeachment submitted to Rajya Sabha Chairman Hamid Ansari by the Opposition which includes BJP, Left and SP.

P L Punia, Congress MP from UP, termed it a conspiracy against a dalit. “We will ensure that Congress opposes the impeachment move,” he said. The bureaucrat-turned-parliamentarian said Dinakaran was in the age-group that he would make it to CJI’s post if he was elevated to Supreme Court now.

Coming down on the system of impeachment, Punia pitted Dinakaran’s case against other similar proposals. He said it was strange that the impeachment proceedings against Justice Soumitra Sen of Calcutta HC did not create much flutter while the one against Dinakaran had attracted a great deal of attention.

While the Dinakaran episode has been cited by top lawyers as a case of corruption in judiciary, the rush of political comments laced with identity politics may dent the course of debate. Observers recalled that once the impeachment move started against Justice V Ramaswamy in 1990, MPs from the southern states termed it a plot against a fellow native, slowly bringing pressure on the central government which finally let him off the hook.

The Dinakaran issue resonated in Parliament on the last day of the winter session when J D Seelam and Pravin Rashtrapal, SC MPs from Congress, tried to raise it in Rajya Sabha. While they were not allowed to speak, their attempt showed a concerted bid by dalit members to underline the “caste dimension” to the controversy.

Nayak nuanced the demand from dalit MPs. He said, “The forum is not against impeachment of Dinakaran but it wants that all the judges with allegations of corruption should be inquired into. Proper inquiry and not media reports should be the basis of action.”

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