JUSTICE KATJU- MEDIA ETHICS DEBATE ‘I am a votary of liberty; my criticism of the media is aimed at making them better’
OPED ARTICLE PUBLISHED IN THE HINDU – JUSTICE MARKANDEY KATJU
‘There is no such thing as self-regulation, every institution is accountable to the people.’ We publish here an edited excerpt from a clarification issued by Press Council chairman Markandey Katju. The full text of his clarification can be read at http://www.thehindu.com. ‘No doubt, the media should provide some entertainment also to the people. But if 90 per cent of their coverage is devoted to entertainment, and only 10 per cent to all the socio-economic issues put together, then the sense of priorities of the media has gone haywire.’
I have expressed my views relating to the media in several TV interviews I gave as well as in my articles in some newspapers. However, many people, including media people, wanted clarification and amplification of some of the issues I had raised. Since some controversy appears to have been raised about what I said, a clarification is in order.
Today India is passing through a transitional period in our history, the transition being from feudal agricultural society to modern industrial society. This is a very painful and agonising period in history. The old feudal society is being uprooted and torn apart, but the new modern industrial society has not been fully and firmly established. Old values are crumbling, but new modern values have not yet been put in place. Everything is in flux, in turmoil. As Shakespeare said in Macbeth, “Fair is foul and foul is fair.”
If one studies the history of Europe from the 16th to the 19th centuries, when the transition from feudalism to modern society was taking place, one realises that this transitional period was full of turbulence, turmoil, wars, revolutions, chaos, social churning, and intellectual ferment. It was only after going through this fire that modern society emerged in Europe. India is presently going through that fire. We are going through a very painful period in our country’s history, which, I guess, will last another 15 to 20 years. I wish this transition would take place painlessly and immediately but unfortunately that is not how history functions.
In this transition period, the role of ideas, and therefore of the media, becomes extremely important. At a particular historical juncture, ideas become a material force. For instance, the ideas of liberty, equality and fraternity, and of religious freedom (secularism) became powerful material forces during the Age of Enlightenment in Europe, and particularly during the American and French Revolutions. In the age of transition in Europe, the media (which were only the print media at that time) played a great, historical role in the transformation of feudal Europe to modern Europe.
In my opinion, the Indian media too should play a progressive role similar to the one played by the European media [during that age of transition]. This it can do by attacking backward and feudal ideas and practices like casteism, communalism, superstitions, women’s oppression, etc. and propagating modern, rational and scientific ideas, secularism, and tolerance. At one time, a section of our media played a great role in our country.
Manner of functioning
When I criticised the Indian media, and particularly the broadcast media, for not playing such a progressive and socially responsible role, I was furiously attacked by a section of the media for my views. Some even launched a personal attack on me saying that I was an agent of the government. When serious issues are raised about the functioning of the media, it was expected that those issues would be addressed seriously.
By criticising the media, I wanted to persuade them to change their manner of functioning — not that I wanted to destroy them. The Indian media have a historical role to play in the age of transition, and I wanted to remind media persons of their historical duty to the nation. Instead of taking my criticism in the correct spirit, a veritable diatribe was launched against me by a section of the media, which painted me as some kind of dictatorial monster.
More focus on entertainment
The media should regard me as their well-wisher. I criticised them because I wanted media persons to give up many of their defects and follow the path of honour which the European press was following, and which will give them the respect of the Indian people.
I mentioned that 80 per cent of our countrymen are living in horrible poverty; there is massive unemployment, skyrocketing prices, lack of medical care, education, etc. and barbaric social practices like honour killings, dowry deaths, caste oppression, and religious bigotry. Instead of seriously addressing these issues, 90 per cent of the coverage of our media goes to entertainment, for example, the lives of film stars, fashion parades, pop music, disco dancing, cricket, etc, or showing superstitions like astrology.
No doubt, the media should provide some entertainment also to the people. But if 90 per cent of their coverage is devoted to entertainment, and only 10 per cent to all the socio-economic issues put together, then the sense of priorities of the media has gone haywire. The real issues before the people are socio-economic, and the media are seeking to divert their attention to the non-issues like film stars, fashion parades, disco, pop, cricket, and so on. It is for this lack of a sense of priorities, and for showing superstitions, that I criticised the media.
What I said
One should not be afraid of criticism, nor should one resent it. People can criticise me as much as they like, I will not resent it, and maybe I will benefit from it. But similarly the media should not mind if I criticise them. My aim in doing so is to make them better media people.
While criticising, however, fairness requires that one should report the words of one’s opponent accurately, without twisting or distorting them. That was the method used by our philosophers. They would first state the views of their opponent, in what was called as the ‘purvapaksha.’ This was done with such accuracy and intellectual honesty that if the opponent were present, he could not have stated his views better. Thereafter it was sought to be refuted.
Unfortunately, this practice is often not followed by our media.
First, I did not make a statement aboutallmedia people but only of the majority. There are many media people for whom I have great respect. So I wish to clarify here that I did not paint the entire media with the same brush. Second, I did not say that this majority was uneducated or illiterate. This again was a deliberate distortion of what I said. I never used the word ‘uneducated.’ I said that the majority is of a poor intellectual level. A person may have passed B.A. or M.A. but yet may be of a poor intellectual level.
I have again and again said in my articles, speeches, and TV interviews that I am not in favour of harsh measures against the media.
In a democracy, issues are ordinarily resolved by discussion, persuasion, consultation, and dialogue, and that is the method I prefer, rather than using harsh measures. If a channel or newspaper has done something wrong I would prefer to call the persons responsible and patiently explain to them that what they have done is not proper. I am sure that in 90 per cent or more cases that would be sufficient. I strongly believe that 90 per cent of people who are doing wrong things can be reformed and made good people.
It is only in extreme cases, which would only be about five to 10 per cent, that harsh measures would be required, and that too after repeated use of the democratic method has failed and the person proves incorrigible. This statement of mine was again distorted and a false impression created that I wanted to impose emergency in the country. Cartoons were published in some newspapers showing me as some kind of dictator.The truth is that I have always been a strong votary for liberty, and the proof of this is my judgments in the Supreme Court and the High Court in which I have consistently held that judges are guardians of the liberties of the citizens, and they will be failing in their duties if they do not uphold these liberties. However, liberty does not mean licence to do anything one wishes. All freedoms are subject to reasonable restrictions in the public interest, and are coupled with responsibilities.
We may now discuss the question of self-regulation.
Self-regulation by broadcast media
At present, there is no regulatory authority to cover the electronic media. The Press Council of India governs only the print media, and even in cases of violation of journalistic ethics by the latter, the only punishment that can be given is admonition or censure. I have written to the Prime Minister requesting him to initiate legislation to amend the Press Council Act by (1) bringing the electronic media also under the ambit of the Press Council, and (2) giving more teeth to the Press Council.
The electronic media have strongly opposed bringing them under the Press Council. Their claim is of self-regulation. But even Judges of the Supreme Court and High Courts do not have such an absolute right. They can be impeached by Parliament for misconduct. Lawyers are under the Bar Council of India, which can suspend or cancel their licence for professional misconduct. Doctors come under the Medical Council of India, which can suspend or cancel their licence. Auditors are in the same position. Why then are the electronic media shy of coming under any regulatory authority? Why these double standards? If they do not wish to come under the Press Council of India (because the present Chairman is a wicked and/or undesirable person) then the NBA (News Broadcasters Association), and BEA (Broadcast Editors Association) should indicate which regulatory authority they wish to come under. Are they willing to come under the proposed Lokpal? I have repeatedly raised this question in several newspapers, but my question has always been met either by stony silence on the part of the NBA and the BEA or by dismissing the very question as ‘irresponsible.’
TV news and shows have a large influence on a wide section of our public. Hence in my opinion, TV channels must also be made accountable to the public. If the broadcast media insist on self-regulation, then by the same logic, politicians, bureaucrats, and so on must also be granted the right of self-regulation, instead of being placed under the Lokpal. Or do the broadcast media regard themselves so holy that nobody should regulate them except themselves? In that case, what is paid news, the Radia tapes, etc? Is that the work of saints?
In fact there is no such thing as self-regulation, which is an oxymoron. Everybody is accountable to the people in a democracy — and so are the media
- JUSTICE KATJU – MEDIA DEBATE : Justice Markandey Katju on the role of media in India (indialawyers.wordpress.com)
- JUSTICE KATJU – MEDIA DEBATE : Why our media is anti-people (indialawyers.wordpress.com)
- JUSTICE KATJU – MEDIA DEBATE : Press freedom must be examined (indialawyers.wordpress.com)
- JUSTICE KATJU – MEDIA DEBATE : Bring electronic media under Press Council (indialawyers.wordpress.com)
- Media and issues of responsibility (indialawyers.wordpress.com)
- Press Council has failed: Justice Verma (indialawyers.wordpress.com)
- ‘Judges must know their limits…they must not try to run the government’ (indialawyers.wordpress.com)
SHEKHAR GUPTA IN THE INDIAN EXPRESS
In this Walk the Talk on NDTV 24×7 with The Indian Express Editor-in-Chief Shekhar Gupta, former Supreme Court judge and now chairman of the Press Council of India, Justice Markandey Katju, talks about ‘judicial overreach’ and ‘media excesses’
My guest this week is the new chairman of the Press Council of India but more importantly a judge who is known to be a liberal lion of the bench. Justice Markandey Katju, you are somebody who combined a lot of native wisdom, literature, history and even Urdu poetry with your approach to justice.
Well, I have used Urdu poetry in many of my judgments. I will tell you just one where some OBCs beat up members of the Scheduled Caste and I thought this was highly objectionable, in fact it is a criminal offence. I began that judgment with a couplet from the great Urdu poet Firaq Gorakhpuri—“Har zarre par ek kaifiyat-e-neemshabi hai/ai sake-e-dauran yeh gunahon ki gharee hai.” It represents the transitional age in which we are living, transition from feudal agriculture society to modern society.
You gave one of the strongest judgments on honour killings.
Yes, I said death sentence must be given. These barbarians must be treated ruthlessly because we must help our society move forward into the modern industrial age and we must not be liberal with these feudal barbarians. We must hang them.
What’s your view on death sentence? Do you think it should be employed?
Yes, in certain situations. I am not a bloodthirsty person but when people do honour killings or policemen do fake encounters, girls are killed by pouring petrol on them, dowry deaths—should we be liberal with them or should we hang such people?
What about Rajiv Gandhi’s conspirators or the Afzal Guru case?
Frankly, I have not applied my mind to them. I have given a judgment that death sentence must be given in cases of fake encounters by policemen, in cases of honour killing, dowry death. Recently, I upheld the death sentence of a man who burnt his entire family.
Provided you catch the correct culprit. The whole problem is that the police are not trained in scientific investigations, so on mere suspicion they bring in somebody. The point is that they cannot catch the real culprits so whomever they think may have committed the crime, they catch hold of them.
And then use torture.
In a village if somebody comes to the police station and says that there has been a dacoity, the inspector asks who has committed it? Somebody says Kallu has committed such kinds of dacoity. So they will catch hold of Kallu and the poor child is beaten and under torture, he will confess to everything. Joan of Arc confessed to being a witch under torture. The crime is solved this way and the inspector’s job remains intact otherwise he might have been suspended. I don’t blame the police because they are not trained in scientific investigation, they are not given the equipment as in the West. All this is absent in India so it is done just by suspicion. Some bomb blast takes place, they catch hold of the local Muslims and young people and implicate them. The electronic media has played a very nefarious role in this. The moment a blast takes place, within a few hours of it, most TV channels start saying that an e-mail has come or an SMS has been received that the Indian Mujahideen has claimed responsibility or Jaish-e-Mohammad has claimed responsibility. An e-mail or an SMS can be sent by any mischievous person but in a very subtle way the impression goes that all Muslims are terrorists, all of them throw bombs. You are demonising Muslims and you know the level of alienation that has been created among them.
Do you have any views on Prashant Bhushan’s view (on Kashmir) or on how he was attacked for his views?
I condemn all kinds of violence but this must also be considered…if you say that Kashmir can secede, then the Nagas will say they can secede, Mizos will say they want to secede, Tamilians will say they want to secede. Where is the end? You know this is a country of immigrants. You must realise what is India—92-93 per cent of people living in India today are descendants of immigrants. We are like North America and because we are a country of immigrants, there is tremendous diversity and therefore we must be tolerant with each other and respect each other. At the same time, we must be united. Did Abraham Lincoln allow the southern states of USA to secede? They said that we have formed a Confederate States of America…separate government. Abraham Lincoln said you will not be allowed to secede. He went to war. There is so much diversity in India, if you allow Kashmir to secede, then everyone will talk of seceding. We must remain together, you must understand what is India.
Yes, there should be democratic ways of resolving disputes. A case came before me, a dispute between the state of Assam and the state of Nagaland. The border had not been demarcated so we appointed mediators. We appointed Sriram Panchu, one of the top mediators of the country, and Niranjan Bhatt, also a top mediator. You know, the Nagas said that for the first time they were being heard. They said the British never heard us, the Indian government never heard us and at least here are people who are appointed by the Supreme Court who are hearing our point of view and hopefully some consensus may emerge.
So you think that while conflict resolution should go on, it should not be pushed into the domain of re-writing of the Constitution?
No, we have to remain united. I don’t agree with the saying that you can secede.
So was he (Prashant Bhushan) wrong in saying that?
I think he was wrong.
But at the same time the attack on him was wrong.
The attack was wrong, you should not commit acts of violence.
Lately, we are seeing judges getting angry in the Supreme Court. In fact, they use the expression ‘we are getting angry’. You know, the one who wields the big stick must speak softly.
When I became a judge of the High Court in 1991, I started reading the Mahabharata and one part of the Mahabharata is called Shanti Parva. When the war ended, Bhishmah Pitamah was lying on a bed of arrows and Lord Krishna went to Yudhishthira and said, ‘Now the Kauravas have been killed and you are going to be the next king. On how to conduct yourself as a king, Bhishmah Pitamah is the best person to tell you and he is shortly going to give up his life. So this is the opportune time, go and ask him’. So Yudhishthira went and sat at his feet, he put one question, Bhishmah Pitamah gave the answer, a second question, an answer. So, the questions-answers are part of a volume called Shanti Parva and in that, one of the things Bhishmah Pitamah said was that the king should neither be too harsh nor too lenient, he should be a mixture of the two. Sometimes you have to be harsh against evil people, but sometimes you should be soft. If you are always soft, people will revolt against you and if you are always harsh, the public will run away so it has to be a combination of the two. When I read this, I thought this is what applies to a judge too.
But the anger that we are generally seeing is more of what the executive now complains about—obiter dicta.
I don’t want to comment about other judges but I became a judge in the Supreme Court in 2006 and shortly after, I gave a judgment in which I said that the judges must know their limits and not behave like emperors. They must not try to run the government; judges must not ordinarily encroach into the domain of the legislature or the executive. Judges must know their limits, they must be restrained, particularly in economic and social matters. When it comes to civil liberties and fundamental rights, then a judge must be an activist.
What worries you more—judicial overreach or media overreach?
There should not be any overreach. Both must act in a very restrained manner. I have great respect for the media. In my opinion, the media is absolutely essential in a democracy.
What’s worrying you about the media right now?
There is a perception that it is going overboard. To give you an example, in 2009, when the Lok Sabha elections were held, this paid news scandal took place on a very large scale. Just three days ago, a senior lady politician told me she was contesting elections and that one leading newspaper came and demanded Rs 18 lakh for favourable coverage and (said) that if you don’t give it, then (you’ll get) adverse coverage.
Tell us a bit more about your danda remark, which obviously has raised people’s hackles. The last thing we expect in your hands vis-a-vis the media is a danda.
I am a totally democratic person. I believe in the method of discussion, consultation, persuasion. If the media has done something wrong, the first attempt should be to resolve the matter in a democratic method and in that connection every two months or so, I am going to hold meetings with all of you. Let’s resolve all the issues by the democratic method. If, despite our best efforts, you prove to be incorrigible, then the danda will be used. I will keep it in reserve.
What is the danda?
Bin bhaye hovat na preet (without fear there is no love). Have you read the Ramcharitmanas? Bhaye aapke upar hona zaroori hai (you should have fear). Don’t think you can do anything you like. You are accountable. In a democracy, all institutions, including the media, are servants of the people.
But there is danger in it. Today you are a liberal judge, tomorrow under a more problematic government, there might be a more problematic head of the Press Council. If these powers are given, they can be misused.
There is never a 100 per cent guarantee.
Are you very exercised about media excess?
Yes, very much. I will give you one example—the judge of a High Court where I was chief justice was known to be a very upright young man. On two consecutive days, a TV channel showed his picture like a criminal, next to the picture of a notorious criminal, and the allegation was that he had grabbed some land. I made a personal and thorough inquiry and it was all false. Now see how demoralising it is.
But the laws that are available, the law of libel, we know it takes a long time, but isn’t it a better way forward to strengthen the law of libel, decriminalise it and like the British law, make the civil law stronger?
All this is really unnecessary, we will hold discussions.
I am asking you a much larger question: do you believe that the law of libel should be decriminalised or not?
I have not really considered it. I don’t intend to consider it for it’s unnecessary. I am a democratic person. I would like to sit with all of you, not only print media but the electronic media too, discuss the issues. Suppose people are criticising some issues, I will bring it to your notice. We should be respected by the people. The media must get the respect of the people. We are accountable. I am accountable to the people. You think as chairman of the Press Council, I can do anything I like? I am also a servant of the people, you too are. We should be proud to be servants of the people. So we will resolve matters by democratic methods, discussions, negotiations, but as I told you, I will keep the danda in reserve.
Have you had some difficult brushes with the media?
I respect the media. The media has played a historical role in the progress of mankind but you should continue doing it, you must serve the people. Yeh nahi ki bas aap apne malik ko serve karein, aapko junta ko bhi serve karna hai (you shouldn’t serve just your bosses, you have to serve the people too). I have nothing against the corporates, there is nothing wrong in making money but you must be socially responsible too.
All I can say is that we are much happier to have you as a guardian of the media than a danda wielder from the government side.
You must understand that the Press Council is an independent body, we are not subordinate to the government, it’s a statutory body.
But its role has been whittled down greatly by, if I may be honest with you, some very political chairman.
I will not comment on any of my predecessors but as far as I am concerned, I am a servant of the people and that is the only title I want.
We started this with a Urdu couplet that was in a different context. Will you give us one as a parting message to your new charge, which is Indian journalism?
I have used so many couplets. There is one couplet which I wrote in a judgment and somebody came from Lahore and said that lawyers there are quoting it. It is right in the beginning of the judgment, it is a couplet by Faiz Ahmed Faiz whose centenary we are celebrating this year. Baney hain ahel-e-hawas muddai bhi, munsif bhi/kise wakil karen, kise munsifi chahen. It means that selfish people have become the plaintiff and the judge. Kise wakil karen, kise munsifi chahen: whom should we make a lawyer, whom should we go to for justice?
And you think that applies to the media a little bit right now?
It’s a couplet written by Faiz at the time of martial law.
But is it a caution to the media?
It’s a caution to everybody, not just to the media. It’s caution to judges, caution to bureaucrats. We are all servants of the people, we all have to behave in that manner.
On that cautionary note, may we have many more such conversations and not many admonitions. But as I said, you are such a liberaliser, that we feel completely safe with you.
Transcribed by Ipsita Mazumdar
- Justice Katju: A colourful judge with a social conscience (indialawyers.wordpress.com)
- Justice Katju was part of the Bench that gave landmark judgments (indialawyers.wordpress.com)
‘If judges show anger unnecessarily, people will feel we are just like ordinary people. We have to show our stature is above that.’
SHEKHAR GUPTA IN INDIAN EXPRESS
In this Walk the Talk on NDTV 24×7 with The Indian Express Editor-in-Chief Shekhar Gupta, former Chief Justice of India P N Bhagwati expresses regret over his habeas corpus judgment that upheld the right of the Indira Gandhi government to suspend all fundamental rights during the Emergency and explains why he wrote a letter of praise to Mrs Gandhi
My guest this week is one of Indian judiciary’s most important shining lights, Justice P N Bhagwati. It tells you about the creative energy in his mind that even now, when he is about to turn 90 very soon, he is working on two books, including his memoir. The judiciary is in news these days. The government complains about the Supreme Court’s obiter dicta, we also editorially complain about it. It seems somehow that the tension between the executive and the judiciary has become too much.
Well, that can’t be helped. Even in normal times there is bound to be some tension between the judiciary and the executive, particularly because the judiciary is entrusted with the task of enforcing the Constitution and it has got to enforce the fundamental rights of citizens and these fundamental rights sometimes come into conflict with what the government desires to do. But that is a conflict that can be resolved by the judiciary and whatever the judiciary decides as a matter of law and the Constitution should be accepted by the executive. Then there will be no tension.
But do you think that sometimes the executive doesn’t accept it?
Yes, in the last few years there have been occasions when the executive has not accepted decisions of the judiciary.
Sir, two recent judgments. I don’t know if you have followed them. The Salwa Judum judgment and the black money judgment in which the government felt, and many of us also felt, that the bench had exceeded the constitutional limits. In both cases there are appeals now for review.
Appeals are there, the Supreme Court will have to dispose of those appeals according to law. But very often, judges forget, lawyers also forget, that law is not an abstraction. Law is something which has been moulded and developed by the courts, by the judges. Law is ultimately what the judges make it, and therefore the judges must have a social perspective. They must be anxious to see that human rights become meaningful for the large masses of people in the country. They should not feel worried about the executive or I would say even about what people say. Their function should only be to enforce the basic human rights that are embodied in our Constitution.
In your own career as a judge, did you feel pressure from the executive and how did you deal with it?
No, I never felt any pressure from the executive. I delivered several judgments, many of them against the government, but not once did I feel that the executive felt offended. It’s possible that they didn’t like my judgments but they never showed any anger.
You were a judge when the executive was much powerful than it is now. Mrs Gandhi’s executive was very powerful.
But the judiciary of my time was equally powerful. Let me tell you that there was never a single occasion when the judiciary and my leadership felt thwarted by the executive or by Mrs Gandhi.
But look at the praise that you wrote for Mrs Gandhi. Most judges today would be embarrassed to write such a flowery prose about a prime minister.
I wrote about her because she fully deserved what I said. She had given this country a united India. Let us not forget the fact.
But somebody who rose to become Chief Justice of India, was it correct for you to write praise for her? It didn’t compromise you?
Publicly, no. But the CJI writing to the PM or the PM writing to the CJI privately was not wrong.
But today it would be out in the RTI and published.
It should not be published. It does a lot of harm.
So are you then saying that these correspondences should not be exposed to RTI?
It should not have been exposed to RTI. Basically what I wrote and what she wrote to me, I don’t remember now, was in the strictest confidence.
But does it pass the test of propriety for the Chief Justice of India to write praise in such flowery prose to the PM and expect it to be kept confidential?
No. I entirely agree with you it was wrong on my part.
You agree with that. But you got carried away? Why did you write that?
I was carried away by the result that was achieved.
…in the election?
Because I always believed that the welfare of the people was the ultimate goal, both of the judiciary and the executive, and anything which tends to further that goal or improve the condition of the people is something that deserves praise.
You did not write in anticipation of any benefits or rewards?
In my life, I have never anticipated anything. But I always believed that my duty is to serve my people. I was in the freedom struggle. I went to jail in 1942. I have always fought for the rights of the people and you look at my judgments.
You started the PILs. You used the postcard and treated it as PIL. Tell us the story of the postcard.
When I became a judge in the Supreme Court, I went round the country and when I visited various villages and towns, people gathered around me because they were interested in seeing a Supreme Court judge. I used to talk to them and I realised for the first time how important a judge’s function was. When people came, many of them were in tatters, many of them had sunken bellies. I realised that my justice was not reaching them. My justice, which I was administering, was meant for the few who could afford lawyers, litigation, court fee. That brought a change in my heart, my attitude. And then I started getting postcards, I started treating them as writ petitions. And ultimately I developed the whole theory of public interest litigations.
That’s your great positive contribution, but let me take you back to your regret and to the letter to Mrs Gandhi. When did you first feel that it was wrong to have written it?
Soon thereafter, I would say. I realised that I should not have treated that letter the way I did. Perhaps I exceeded my jurisdiction.
In the praise that you wrote for her?
No, not that the praise was ill informed but as a judge, as the chief justice, I shouldn’t have written it.
If you had written this, then you had wished it had not become public?
Definitely. It was not meant to be public.
What harm does it do if it becomes public, as it became public?
Well, perhaps to an extent people might feel that I’m pro-government. But very soon the impression that I am pro-government was dispelled.
But apart from that letter to Mrs Gandhi, one thing that rankles is your habeas corpus judgment, the ADM Jabalpur case, when you ruled with the majority of the judges to say the government could take away the right to life of a citizen.
Still looking back, legally we were right, the majority was right. But if I were sitting alone and I would have an opportunity to say it again, I would have taken a different view though that different view would not have been consistent with the words of the Constitution.
As you said earlier, law is not an abstraction. And law is what the judges make it out to be. Did you, as a judge, fail to make the right interpretation, or the right use of that law?
I’ve always admitted that. As a bold judge, as an imaginative judge, as a judge working for the people, I should not have taken that view.
Many of your critics say you cannot just express regret because that judgment did or could have done damage to the liberty of Indian citizens.
But I don’t see how could it have done damage because I think the amendment was made and in fact two years later or so, a similar case came before me and I took a different view. I said in the judgment that the view I had taken was wrong and I changed my view.
One judge disagreed and that was Justice H R Khanna. At that point did you think he was wrong?
At that point, perhaps I must have thought so.
Did you have any conversation with him on this?
No, he didn’t discuss with me. Soon after, he resigned because he was superseded.
That is the whole point. It becomes obvious to join the dots. All the judges who favoured the judgment, the judgment that Mrs Gandhi wanted, rose to become chief justices. The only one who did not was Justice Khanna.
But I became chief justice much, much later.
But the fact is that everyone on that bench, except Justice Khanna, rose to be CJI.
That’s because of seniority. Purely because of seniority. And Khanna should not have been superseded.
But Mrs Gandhi superseded him.
It was wrong on the part of Mrs Gandhi not to appoint Justice Khanna as CJI according to seniority.
What would you have told Justice Khanna if you had met him now?
I would have said it was very brave of you to give the dissenting judgment.
The ’70s saw the habeas corpus judgment and then you had the Kesavananda Bharati judgment that protected our freedom forever. It was the most important five years, I would say, in the evolution of India’s constitutional history. Do you think the period we are seeing now is a period comparable to that? There is the Jan Lokpal movement, there is a demand for a Judicial Accountability Bill. You were a party to setting up the collegium system and now the executive and Parliament are both going after it saying the system is not right. Judges are giving judgments that are setting up monitoring committees on everything.
If you are talking about appointment of judges, I have publicly said that appointment of judges should not be left entirely in the hands of the executive, nor should be left entirely in the hands of the CJI.
…which is the case now.
Now it is a collegium.
Now only the judiciary does it.
Collegium is alright but collegium should be run with some principles to guide it. The old system under which I worked was much better. The CJI made a recommendation after consulting some of the senior judges. Then the government, the law minister would discuss the matter with the CJI, and then we would make the appointment. Look at the earlier appointments, most of them were very good.
But right now, the problem is that there are so many vacancies in the courts. Allahabad High Court has 100 vacancies.
No vacancy in the High Court or the Supreme Court should be allowed to remain unfilled for a long time. Judges have assumed to themselves the power to make appointments, which is a wrong thing. In my opinion, the Constitution has been wrongly interpreted.
So it can’t just remain a fully in-house job?
No, it can’t. If you make the first five judges decide, then sometimes it is possible—I don’t want to make any allegations—that there may be give-and-take among the judges. You have my man, I will have your man. Therefore, I have always maintained and publicly said that appointments should be in the hands of CJI and the law minister.
Do you think the judiciary is under a bit of siege? One, it has resisted reform, it took such a public outcry for them to even declare their assets, RTI and now appointments. Then they are delving into areas of governance, setting up special investigating teams and monitoring them, asking the director of RAW to report to them on black money.
One feels sad that judiciary should come to this pass.
Why? If you could elaborate.
During my time, the judiciary enjoyed the highest respect.
Do you think that respect is threatened right now?
That respect has slightly gone down. There are a few judges who still enjoy that respect, I am told. But I can’t say about all judges today.
Why the judiciary is under pressure is because the Lokpal people are saying bring the judges under Lokpal, government is saying there should be a Judicial Accountability Bill.
I’m against bringing judges under the Lokpal because public pressure will mount unnecessarily. It will affect the independence of the judges. But judges should have their own separate body.
With some involvement of the executive or no involvement of the executive?
No involvement of the executive. Why don’t we have a retired chief justice of India, a sitting chief justice, one or two senior sitting judges, attorney general and one leading member of the Bar?
Did you ever discuss this with your very famous contemporary Shanti Bhushan?
I’ve met him occasionally, but have not discussed these issues with him. What is his view?
He wants the judiciary to be brought under the Lokpal.
No, it is dangerous to have the judiciary under the Lokpal.
Because the Lokpal ultimately is a person who is moved by public sentiment. I don’t want that. Let there be a separate Lokpal, if you like, for the judiciary. That is the best thing. I have already made this recommendation of mine in writing.
What is your advice to today’s judges?
Judges should retain their peace of mind because after all they have got to present an image that people will respect. If we show anger unnecessarily then people will feel that we are just like ordinary people. We have to show our stature is above that.
So do you object to obiter dicta?
No, but they should be well placed. Obiter dicta must be called for.
Do you remember any moment from the times of the bench when you used obiter dicta and well?
I must have sometimes, but I can’t recall now after this length of time.
I think one wonderful thing you have done is to keep yourself busy. Your thoughts are always valuable and now you are putting them down in a book. We will all wait for your books to come out.
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“The High Court at Calcutta, formerly known as the High Court of Judicature at Fort William was brought into existence by the Letters Patent dated 14th May, 1862 issued under the High Court’s Act, 1861 and was formally opened on 1st July, 1862. The jurisdiction and powers of the High Court were to be defined by the Letters Patent. The existence of the Calcutta High Court is important to us as it was the first High Court and one of the three Chartered High Courts to be set up in India, along with the High Courts of Bombay and Madras
Sir Barnes Peacock was the first Chief Justice of the Calcutta High Court in 1862. Subsequently, Justice Shri Sumboo Nath Pandit was appointed as the first Indian to assume office of the High Court on 2nd February, 1863. He was followed by other legal luminaries such as Justice Shri Dwarka Nath Mitter, Justice Shri Ramesh Chandra Mitter, Justice Sir Chunder Madhab Ghosh, Justice Sir Gooroodas Banerji, Justice Sir Ashutosh Mookerjee. Justice Shri P.B. Chakravartti was the first Indian to become a permanent Chief Justice of the Calcutta High Court.
The High Court started with strength of 13 Judges and by the year 1955, its strength raised to 20 Judges. In the year 1958, the strength was fixed at 24 which was increased to 32 in 1966, 39 in 1969 and 41 in 1974. Till 1994, the strength of the High Court remained 46 when in 1993, the Supreme Court directed that the Judge strength of every High Court should be reviewed periodically with reference to the felt-need for disposal of cases, taking into account the backlog and expected future filing. Accordingly, the Judge strength of the High Courts, including the Calcutta High Court is being reviewed every three years. In 1995 the Judge strength of the Calcutta High Court was fixed at 48 and after review in 1999 it increased to 50 Judges. As per the latest review undertaken in 2007, the Judge strength of the Calcutta High Court has been revised to 58 Judges.
The Union Government is keen on the reduction in the pendency in the High Courts and has, therefore, launched a campaign from today to reduce pendency in the High Courts. One of the measures in reduction of the pendency is to have as many Judges in position as possible. Calcutta High Court has, against the sanctioned strength of 58, only 46 Judges in position. Though the Chief Justice has recommended names of 7 persons they are pending with the Central Government for want of comments of the State Government. I would urge upon the State Government to consider the recommendation made by the Chief Justice and send their comments at the earliest so that the vacancies could be filled up during the campaign period itself, thereby helping in disposal of more number of pending cases.
I am told that the High Court building is an exact replica of the Stand Haus in Ypres, Belgium. It is also recorded that when the original Stand Haus burnt down, a blue print of Granville’s Calcutta High Court had to be consulted before rebuilding it. The neo-Gothic High Court building was constructed in 1872, ten years after the establishment of the court itself. Government of India feels that unless the infrastructure is perfect, it is not possible for the High Courts to function smoothly. The 13th Finance Commission has awarded Rs. 5000 Crores to improve the justice delivery system in the country during the period of 5 years starting 2010-11. A sum of Rs. 19.70 Crores has been set aside out of this allocation for renovation of the Calcutta High Court Building, this being a heritage building. Further to this, the Union Government has, under the Centrally Sponsored Scheme, released a sum of Rs. 425.26 lakhs to West Bengal Government for developing infrastructural facilities for the judiciary.
The Government in the Centre is also keen on bringing the justice to the doorsteps of the masses for which the Gram Nayayalaya Act, 2008 has been enacted which has come in force w.e.f 2nd October, 2009. Under the Act, assistance is provided to the States towards (i) establishing the Gram Nyayalayas @ Rs. 18 lakh per Gram Nyayalaya and (ii) meeting recurring costs involved in operating these Gram Nyayalayas @ Rs. 3.20 lakhs per annum per Gram Nyayalaya for the first three years. I would request the Government of West Bengal to take steps for establishment of Gram Nyayalayas. I would like to mention here that we have received representations from some of the States that the grant being provided for the Gram Nyayalayas is not adequate. We are working on these representations also for increasing the grants from establishment of the Gram Nyayalayas and will make an announcement shortly in this regard.
In our pursuit to bring justice to the people of West Bengal within their reach, the Central Cabinet had taken a decision in June, 2006 for setting up of a Bench of the Calcutta High Court at Jalpaiguri. The infractural facilities for setting up of the Bench need to be provided by the State Government. We have been reminding the West Bengal Government in this regard. I would request them to pay attention to this project and provide infrastructural facilities at Jalpaiguri to the satisfaction of the Chief Justice which will go a long way in mitigating the miseries of the litigants.
A Mission Mode Programme was launched on 26th January, 2010 titled “National Mission for Delivery of Justice and Legal Reforms for the Under Trials” with the aim to reduce the number of under-trial cases and to ease congestion in jails. This programme was undertaken for considering the cases of 2/3rd of the undertrials estimated to be about 3 lakhs in January, 2010, who were languishing in jails. I am happy to announce that the results of this drive was extremely successful with cases of over 7 lakh prisoners having being decided by the end of May, 2011 of which over 1.72 lakhs were from West Bengal. I hope this must have brought relief to as many families also.
I am happy that the Calcutta High Court Bar Association is taking active part in the activities of the Calcutta High Court. I hope they would continue to work for the betterment of the society by getting them early justice through Courts which would also help in reduction of the pendency in the Courts for which a campaign has been launched today. On the occasion of the 150th year of the Calcutta High Court, I would like to convey my sincere thanks to the Calcutta Bar Association for organising this function.”
Judges must eschew any suggestion that duties of the judiciary are owed to the electorate; they are owed to the law which is there for peace, order and good governance
S.H. Kapadia , Chief Justice of India at the 6th Setalvad Memorial Lecture in New Delhi
PUBLISHED IN THE TRIBUNE
Leading an exemplary life is the highest form of ethical conduct. This is the keystone of our modern codes of judicial conduct. We need a clean man in the black robe to uphold the independence and the integrity of the judiciary. Action is an extension of values. A Judge’s obligation must start and end with his analysis of law, not with personal beliefs or preferences. The Judge should not accept patronage through which he acquires office, preferential treatment or pre-retirement assignment. These can give rise to corruption if and when quid pro quo makes a demand on such Judges. Similarly, when a family member regularly appears before a Judge, adverse public perception can affect the working of the integrity of institutions like the judiciary.
The active involvement of Judges in community organisations has also evoked a similar response when their civil society associates appear as litigants before them. Frequent socialising with particular members of the legal profession or with the litigants, including potential litigants, is certain to raise, in the minds of others, the suspicion that the Judge is susceptible to undue influence in the discharge of his duties. In such a situation, Judges must keep the part of impartial, objective, fearless and independent justice alive. A Judge must inevitably choose to be a little aloof and isolated from the community at large.
He should not be in contact with lawyers, individuals or political parties, their leaders or ministers except on purely social occasions. When one enters the Judges’ world, one inevitably has to impose upon oneself certain obvious restrictions. Judges owe a solemn duty to the community at large and from day-to-day they must ask themselves whether they have done or said anything which is inconsistent with the oath of office they have taken and which otherwise are consistent with their obligations as a Judge.
One more aspect needs to be highlighted. Internal interference from a high-ranking Judge which, if resisted, could lead the lower-ranking Judge being transferred or being denied promotion also needs to be deprecated. Similarly, political protection should not be given to corrupt Judges.
In drafting “know what to omit rather than what to include”.
Judgements are not to be written as simplified newspaper pieces for public consumption. The process of reasoning in a judgement should reflect its integrity and explain its conclusions. Judges must eschew any suggestion that duties of the judiciary are owed to the electorate; they are owed to the law which is there for peace, order and good governance. The Judges of the Supreme Court of India should revisit the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to enact laws. We are not concerned with the wisdom, need or appropriateness of the legislation. We must refuse to sit as a super-legislature to weigh the wisdom of legislation. We must remember that our Constitution recognises separation of powers and that the legislatures and the government can be made accountable for their legislation and actions by the electorate if they err. In many PILs, the courts freely decree rule of conduct for government and public authorities which are akin to legislation. Such exercises have little judicial function in them. Its justification is that the other branches of the government have failed or are indifferent to the solution of the problem.
In such matters, I am of the opinion that the courts should be circumspect in understanding the thin line between law and governance. In such matters, the courts must try to ascertain whether the issue has a legal content or a political content. In the latter case, the courts should invoke the doctrine of deference. The function of the courts is to review the acts of the legislature and not to impose its own policies or values on the society or the legislature.
We do not have the competence to make policy choices and run the administration. Judicial activism which is not grounded on textual commitment to the Constitution or the statute, unlike activism in cases of human rights and life and personal liberty, raises questions of accountability of the judiciary whose members are not chosen by any democratic process and whose members are not answerable to the electorate or to the legislature or to the executive. We, Judges, should remember that the validity of our decisions cannot rest on popularity. Resisting the pressure to please the majority is the strength of the judiciary, not its weakness. Judges who invoke the Constitution to protect the rights of people and who declare a statute unconstitutional are not legislating from the Bench, nor are they thwarting the will of the majority. They are merely carrying out their oath of office and following the rule of law.
In the context of the developing world wherein litigation impinges on the economy or commerce, many Judges are cowed into submission rather than walk the tight rope of balancing the public interest and be tarred with the epitaph of “usurping the legislative function”. Lawyers and the public, apart from criticising, must engage in constructively empowering the judiciary. In conclusion, on this topic, I may add that it is the discipline of circumstances that makes us more worthy. The task of forming and giving opinion, in the course of judging, is based on many activities; resolving disputes, setting precedents, following precedents, deliberating with colleagues, displaying compassion and so on. However, each of these activities raises questions of judicial ethics. This is where the oath which we take binds us.
Separation of powers
Constitutional law is the law prescribing the exercise of power by the organs of a State. It explains which organs can exercise legislative power, executive power and judicial power and what the limitations on those powers are. In a federal State, the allocation of governmental powers (legislative, executive and judicial) among Central and State authorities is a basic concern.
A constitution has been described as “a mirror reflecting the national soul”: it must recognise and protect the values of a nation. The word “constitutionalism” is sometimes used to convey the idea of a government that is limited by law. The phrase “rule of law” is used to convey the same idea. These terms describe a society in which government officials must act in accordance with the law. This in turn requires an independent judiciary and an independent legal profession. Under the doctrine of separation of powers, each of the above organs must stay within the powers allocated by the Constitution. Supremacy of the Constitution is the philosophy of the constitution. Well established rules of interpretation require that the meaning and intention of the Constitution framers must be ascertained from the language of the Constitution itself; with the motives of those who framed it, the court has no concern. At the same time the Constitution is not to be construed in a narrow pedantic sense and a broad liberal spirit should inspire those whose duty it is to interpret it. After 1980 the court has changed its direction to securing the rights of citizens from arbitrary actions of the executive and creating a human rights jurisdiction by an enlarged meaning of Article 14 (The Right to Equality) and Article 21 (The Right to Life and Personal Freedom). Between them the court has for all practical purposes introduced the “due process provision” in the Indian Constitution in such matters. In the so-called public interest litigation (PIL) the court freely decrees rules of conduct for government and public authorities which are akin to legislation and oversees their working.
To give a few examples: the court in the interest of clean environment has ordered and supervised the use of clean fuel for vehicles in New Delhi; it has framed schemes of admission in educational institutions throughout India, and made the right to education into a fundamental right from a directive of State policy, and made guidelines to be adopted by public institutions for controlling sexual harassment of women at work places. The jurisdictional peg on which it is done is that such matters affect “the life” of the citizen under Article 21 of the Constitution. Its justification is that the other branches of government have failed or are indifferent to the solution of the problems. In such matters, the court is acting in advance of the political branches of the government.
By and large such orders have been considered necessary and welcomed by the public, but the question which arises is – can judges ignore the separation of powers in the Constitution and become administrators, and do they have the competence to make policy choices and run the administration? Legislatures and government can be made accountable for their legislation and actions by the electorate if they err. Judicial activism of this type which is not grounded on any textual commitment to the Constitution, unlike activism in cases of human rights and life and personal liberty raises questions of accountability of a judiciary.
The value system takes precedence over personality. Honesty is a tendency.
Judicial accountability is a facet of judicial independence. It must be developed consistent with the principles of judicial independence. Constitutionalism is not enhanced by hostility directed against the judiciary which plays such a pivotal role in maintaining the rule of law. Coming to judicial accountability, there is no difficulty in accepting the principle that in a society based on the rule of law and democratic principles of governance, every power holder is, in the final analysis, accountable to the people.
The legislature is accountable to the electorate. The executive is indirectly accountable to the people through the elected legislature. There is no reason why the judiciary should not be accountable to the community for its due performance of the functions vested in it. Power is given on trust and judicial power is no exception.
The challenge, however, is to determine how the judiciary can be held to account, consistent with the principle of judicial independence. How does one achieve the right balance between autonomy in decision making and independence from external forces on the one hand and accountability to the community on the other hand?
While not recommending the regular election of judges or their recall by popular vote, I would venture to suggest that Judges, unlike legislators, ministers or public servants, should be accountable to the jurisdiction they serve through their absolute adherence to a set core of judicial values. Through inheritance of British constitutional principles, judges in many Commonwealth countries are accountable to either the legislature or the executive, in the sense that one or the other of these two branches of government is vested by the Constitution with the power to remove judges for proven misbehaviour or incapacity. At times this power has been grossly abused in some of the countries.
Judges inevitably end up in the political arena in deciding controversial cases – whichever side they rule. In resolving disputes between citizens and the State or evaluating a constitutional issue, Judges are forced to make decisions which are at times termed political. Judges are, however, not in a position to defend their judgements as they are bound by a code of silence. As stated above, Judges should account for the exercise of judicial power, especially when pronouncing judgements of significance.
Public and media criticism of Judges and judgements is a common feature today throughout the common law world. Like other public institutions, the judiciary must be subject to a fair criticism. But, what I am concerned with is response to criticism, particularly criticism that is illegitimate and irresponsible. In the context of such illegitimate and irresponsible criticism, it must be borne in mind that love for justice is rare – what most people desire is justice which favours them. Our Code of Judicial Conduct will meet its goal if a talented, hopeful young person looks in the mirror and sees in the reflection the desire to exemplify the standards of justice and the possibility of doing so. Excerpted from the M.C. Setalvad Memorial Lecture delivered by the Chief Justice of India in New Delhi last week Setalvad set standards for future Attorney Generals In December, 1937, M.C. Setalvad became the Advocate General of Bombay and in that office, as in every office he subsequently held, he rose to the demands of the office. 1943 would have seen him as the first permanent Indian Chief Justice of Bombay, for he was invited to fill that high office. But, he declined the invitation on a ground which must fill every member of the Bar with pride; he refused to be a party in superseding the claims of the first court friend, Sir Harilal Kania. And when those claims were nevertheless passed over, i Setalvad felt an indignation which found a noble expression in the moving words he used in the Supreme Court on the occasion of Chief Justice Kania’s death.
But, what the Bench lost, the Bar of this country gained and, in 1950, Setalvad became the first Attorney General for India. He set standards which future Attorney Generals were required to maintain. He realised, for instance, that for lawyers to charge fees not according to the complexity of a case but according to the traits of a client was to reduce the great profession to the level of a trade or business. The greatest service Setalvad has rendered to the law and the administration of justice lies in the work he did as the Chairperson of the Law Commission and as the author of its report. The picture which that report presents regarding falling standards of the Bench and the Bar is grim but the reality is grimmer.
Nothing would have been easier for Setalvad to have his son Atul with him at Delhi and push him into practice in a year or two. He, however, refused to do so. He left his son in Mumbai to make his way at the Bar for himself, as Setalvad had made it before. All this may appear quixotic to the practical man; but it indicates the fundamental stability of Motilal’s character and his deep awareness of the fact that it does not profit a man to destroy his own and his son’s self-respect for the sake of easy success.
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THE TIMES OF INDIA
In fashionably liberal circles, Prashant Bhushan is an authentic modern hero, the people’s advocate who uses the killer argument to avenge the aam admi on the bloodless battlefield of the Supreme Court. Among his lawyer peers, Bhushan is somewhat disdainfully seen as an “activist who takes up causes, not cases”. Some politicians call him a “self-righteous” busybody with a penchant for the sensational storyline. Some others loathe the 55-year-old, who helped draft the Jan Lokpal Bill, as an anarchist impelled to bring down the system. To the man on the street, Bhushan is all but invisible.
But the results of his relentless war on what he calls “evil and venality” are all around. There appears to be a decided people’s clamour for the anti-corruption Jan Lokpal Bill he wrote with former Supreme Court justice Santosh Hegde. And at the beginning of March, Bhushan effectively humbled India‘s chief political executive—the prime minister—as well as forced the highest court in the land to do his will.
With his trademark cautiousness, Bhushan admits this might be as good as it gets for a knee-jerk activist with “a passion for justice”. He acknowledges “I’ve been unwittingly catapulted into a kind of position of a hero, which I can see from the manner in which people are now wanting to interview me, as well as talk to me in the courts, congratulate me etc.”
It is safe to say Bhushan has made a career out of public interest litigation (PIL) having self-confessedly taken up “about 500 cases over 15-16 years” that deal with ‘good’ causes (environment, corruption, the Bofors case, Narmada dam). He made a career but not a fortune because he doesn’t charge for public interest cases, which he admits “take a long time, go on for a long time… more time than normal cases”. Effectively, therefore, he admits to spending just 25% of his time on paying cases, charging 5% of what other lawyers charge and earning just “enough to take care of my office expenses at any rate”.
Clearly, he is magnificently unworried about money. He lives in simple but great comfort with his former lawyer wife Deepa on one floor of his father’s house in Noida. The oldest of four children of well known lawyer and Prime Minister Morarji Desai’s law minister Shanti Bhushan, Prashant lives the dream described by American novelist Edith Wharton — the only way not to think about money is to have a great deal of it. This is the starting point of the difference in Bhushan’s worldview and that of people he lumps together as “professional lawyers”. Most of them, he says severely, “are amoral, morally vacuous and they’re not bothered whether their client gets justice nor are they bothered whether their client’s cause is just or not.”
Bhushan’s fellow lawyer in the Supreme Court, Harish Salve, acknowledges the grubby and distinct reality of being a “commercial lawyer (not an activist). Sometimes, even we’re not convinced our clients are right”. Contrast that with Bhushan’s lofty refusal to “take up a case unless I feel my client is at least morally right.” America’s leading expert on the Indian legal system and London School of Economics Centennial Professor Marc Galanter says Bhushan is quite remarkable for “being so empowered.” Unlike many great—and effective—activist lawyers, notably the late William Kunstler who fought for civil liberties, black people and native Americans, “Prashant’s circumstances have given him (financial) independence, Kunstler had the imperative of making a living. I find it admirable that Prashant has grasped the opportunity”.
And how. Just months ago, he successfully challenged the Prime Minister and Home Minister’s decision to appoint PJ Thomas as head of the country’s eight-year-old premier integrity watchdog, the Central Vigilance Commission. He was able to prove that the appointment of a man facing corruption charges to an anti-corruption institution was laughably inappropriate.
In mid-December, Bhushan managed to convince the Supreme Court it must monitor the Central Bureau of Investigation‘s (CBI) inquiry into the 2G spectrum allocation scandal, which the lawyer argued had only benefitted the “favourites amongst the favoured”. The Court even agreed with Bhushan that the CBI had dragged its feet on investigating the mega scandal. It was arguably just the fillip needed to start nailing those alleged to be guilty. From then on, it took the CBI just six weeks to arrest former telecom minister A Raja.
Bhushan wasted little time taking aim at his next quarry in the 2G scam. On March 1, he told the Supreme Court that the CBI was behaving suspiciously by failing to investigate the direct involvement of the Tata group in the entire matter. Justices G S Singhvi and A K Ganguly assured him the case was “progressing in the right direction. Prima facie there is no fault in its investigation. We are quite conscious that CBI must probe every aspect of the case.” Bhushan had made his point. But he is not triumphant. Possibly just a tad self-satisfied. He talks about his own “moral authority” and the fact that his “responsible and consistent” campaign against judicial corruption means judges “both respect and fear you (him)”. Despite being mild-mannered and retiring, some might find him as boastful as an Arab dictator: “Even judges today are afraid of throwing in jail someone who they know is perceived to be right by the people.”
Chiefly though, he is unyielding and as a friend describes him, “all heavy seriousness” about his role in India today. The science fiction addict who once wrote a turgid novel of the genre, is clear that he is an “agent of change, a catalyst”. The IIT Madras student who left halfway, went on to Princeton to study philosophy and economics but couldn’t stay the course, is steady as a rock about his destiny. He objects to the adjective “messiah”, saying “it can mean many things. I see myself as a person who tries to see the connections between what is happening and tries to spread the message that I feel should be spread about what is wrong with our economic policies, what is wrong with our judicial system.”
He studied law at Allahabad, doing part of the course before Princeton and taking his final exam on his return. He started early down the public interest road, inspired partly by his father’s views on justice, probity and corruption. Early on, he fought limestone quarrying in the picturesque Doon Valley. Then, there was the Bhopal gas tragedy litigation. He was Delhi president of the People’s Union for Civil Liberties, one of India’s oldest human rights organizations.
Bhushan is unembarrassed to be asked if activism is an indulgence for those who can afford it, chiefly people who don’t need to worry about feeding the family or putting a son through Oxford (Manav, oldest of his three sons, is studying Math there). “Activism certainly needs to be supported—by like-minded people or grants…I don’t need to seek grants because I come from a very well-to-do family”. Salve, who has faced Bhushan across the courtroom many times (“cases go up to two digits”) magnanimously says that “we need the Prashant Bhushans, we need people like him. Every system needs crackpots”. Bhushan himself describes Salve as his chief detractor but Salve insists that Bhushan is generally to be admired because “he takes every cause, good, bad or indifferent and argues it with passion.”
Salve’s words of praise may sit oddly with his deeds. In his own words Salve “drew the Supreme Court’s attention” to Bhushan’s September 2009 interview to a magazine in which he claimed “half of the last 16 Chief Justices were corrupt”. Bhushan now faces contempt of court proceedings. Salve denies animosity. “We’re all on the same side, as citizens, we’re against corruption but I think that he is sometimes out of sync with economic reality.”
This fierce romantic idealism seems to annoy Bhushan’s detractors most. Like America’s self-appointed “radical lawyer” William Kunstler, Bhushan is accused of being a “publicity seeker”. Some are suspicious of his chiming with writer Arundhati Roy to recall India Rising to right rather than jingoistic might. Some say the Jan Lokpal Bill would have been drafted with or without Bhushan. Others say the main opposition BJP would have achieved the same results on the 2G scam had Bhushan not managed courtroom success. His chief critics say he’s not really a serious lawyer at all, just a “cause-pleader”. But Salve will have none of this. “He is a good lawyer. His arguments are crisp and to the point. He doesn’t get into high philosophy and jurisprudence. He picks his cause and he bangs it hard”.
Bhushan, unemotional to the point of bloodlessness, bangs on. From his third floor office opposite the Supreme Court, he looks dreamily at the pigeons on the window sill: “There are some straws in the wind. There is reason for hope. Today you can sense a kind of arousal and excitement even among the urban middle class which one didn’t see earlier. There’s resistance everywhere against every kind of loot and degradation.”
PUBLISHED IN THE TEHELKA
Can the renowned lawyer do justice to the 2002 Gujarat riot victims while referring business deals to the Narendra Modi government? ASHISH KHETAN has the evidence of impropriety and conflict of interest
THE SPECIAL Investigation Team that was formed by the Supreme Court to reinvestigate the Godhra riot cases has long since failed its mandate. It has been unsuccessful in nailing the senior functionaries of the Gujarat government while being content with the cosmetic arraigning of a few inspectors and VHP members with the sole exception of the arrest of BJP MLA Mayaben Kodnani.
It has been left to Zakia Jafri, the 72-year old widow of former Congress MP Ehsan Jafri — who was butchered by a riotous Hindu mob — and a few human rights activists to doggedly pursue the riot cases in the Supreme Court. Senior Supreme Court lawyer Harish Salve has been the amicus curiae — in simple words, friend of the court — in the petition which resulted in the re-investigation of nine major Gujarat riot cases including the massacres of Naroda Goan, Naroda Patiya and Gulberg Society in Ahmedabad where more than 200 Muslim men, women and children were hacked and burnt to death.
In India, while handling cases of extreme public interest, the courts have often appointed senior advocates with impeccable integrity as amicus curiae. The job of an amicus is to assist the court with objective and impartial analysis so that justice is served and public interest prevails.
In his capacity as an amicus for the past eight years, Salve has been assisting the court in finding the truth of the Gujarat riots. It was Salve who, along with the counsel of the Gujarat government, finalised the names of the police officers who were appointed SIT members.
After the SIT was formed in March 2008, Salve has supposedly been scrutinising the SIT investigation and advising it on how to proceed further and nail all the culprits. At the same time, Salve he has been guiding the court on the question of the fairness of the SIT probe and the further investigation required.
Over the past two years, the victims have been petitioning the court that the SIT had failed to book senior state government functionaries on whose watch the riots had taken place. In the case of the Gulberg Society massacre, for instance, the SIT held an inspector responsible for the deliberate failure of the entire police machinery, while recommending mere departmental action against senior police officers of the rank of joint commissioner and deputy commissioner.
The complainants told the court that the SIT had failed the cause of justice and thus should be disbanded and a new investigation team should be formed. In fact, the apex court has become the repository of all the hopes of the riot victims, and if they lose faith in the amicus curiae, justice might not be seen to be done.
Citizens for Justice and Peace (CJP), a Mumbai-based advocacy group and one of the main petitioners before the Supreme Court, had complained that Salve had not heeded their complaints of shoddy investigation being carried out by the SIT.
On 9 February 2010, senior Supreme Court lawyer Kamini Jaiswal, appearing on behalf of the riot victims, told the Supreme Court that she had no faith in Salve as an amicus. She pointed out that Salve, besides being an amicus in the riot cases where the Gujarat government is a suspect, had been appearing for the Narendra Modi government in the Ishrat Jahan encounter case (in which a teenage girl from Mumbai was gunned down by Gujarat policemen under suspicious circumstances) defending the tainted policemen before the apex court.
Jaiswal said it was a clear case of conflict of interest as all these cases were interconnected as they were all related to the persecution of Muslims at the hands of a communal government and the absence of a constitutional rule for minorities in Gujarat. But the court overruled Jaiswal. The three-judge bench of Justice DK Jain, Sathashivam and Aftab Alam said, “It’s not your faith which matters. We have full faith in Salve’s impartiality.” As a result, Salve has continued to be the amicus. Interestingly, before the same bench, the Gujarat government had objected to senior civil liberties lawyer Prashant Bhushan holding the post of amicus in the case of Ehsan Jafri’s wife Zakia’s complaint against Modi.
The government had pointed out that in the past, Bhushan had criticised the chief minister for his failure to control riots in newspaper columns and thus as an amicus he could not be impartial and objective in the probe against Modi. Bhushan had subsequently recused himself.
TEHELKA has dug out a string of emails between Salve and senior officials of the Modi government that show Salve had routed an ambitious business proposal of a major company to Modi’s office. On 27 April 2010, Salve received an email about a business proposal of setting up two 50 MW solar power plants in Gujarat from Eros Energy, a company promoted by London-based billionaire Kishore Lulla, whose family fortune was pegged at £206 million by the Sunday Times Rich list.
The proposal attached with the email shows that Lulla wanted 200 hectares of government land to set up the power plants. The project report was attached with a personal letter written by Lulla and addressed to Modi. It read: “Dear Shri Modi. Eros Energy, part of Eros Group, has been established to develop and operate solar power stations in India. The company is particularly keen to develop such projects in Gujarat because of the favourable investment climate.” he concluded the letter by saying, “We respectfully urge you to consider this application and allot government land as requested.”
On 28 April, Salve forwarded the letter and the project report to Gujarat government’s Additional Advocate General Tushar Mehta. Mehta in turn forwarded Salve’s email to Girish Chandra Murmu, the additional principal secretary to Modi and Sanjay Bhavsar, the officer on special duty to the chief minister.
ON 29 APRIL, Mehta wrote back to Salve, providing him the cellphone numbers of Murmu and K Kailashnathan, principal secretary to the chief minister, as requested by Salve. If one logically infers from the email trail it would appear that Salve must have spoken to Murmu or Kailashnathan about the project. There could be no other reason for asking the cell phone numbers of Modi’s key aides.
Both Murmu and Bhavsar figure as accused in Zakia Jafri’s criminal complaint for their alleged complicity in the subversion of justice. It is alleged that Modi had used Bhavsar’s cell phone number during the riots. Former Additional Director General of Police RB Sreekumar had alleged that Murmu had tried to threaten him into giving a false testimony on Modi’s failure in controlling the riots before the Justice Nanavati Commission.
What is intriguing is the fact that the same project report mentions that Eros Energy officials had already had a few rounds of meetings with senior bureaucrats of the Gujarat government with regard to this project. Still, to push their project further, Lulla chose to route his expression of interest and his letter to Modi through Salve.
The email exchanges clearly show that the Modi administration identified the project with Salve. While forwarding the Eros project proposal to Modi’s top officials, Mehta in his emails emphasised upon the fact that the project report had been forwarded by Salve.
One could argue that Salve was lobbying with Modi’s office for a corporate company and the government would have been only too pleased to oblige Salve who holds the important office of amicus curiae in the riot cases where the Modi government stands accused. Eros Energy finally got the clearance and the required land to set up a 25 MW power project. Speaking to TEHELKA on the phone from London, Lulla said, “We have got the land to set up a 25 MWpower project in Gujarat. I don’t have all the details. I will ask my CEO to call you and provide you the full information.” however, the CEO never called.
In his defence, Salve told TEHELKA that he had not made any money from the Eros deal and the mails he wrote were in his personal capacity as a friend of Lulla. He said that one should not make too much out of his email exchanges with Modi’s top officials as he had routinely advised his friends from the corporate world to invest in Gujarat. Salve asserted that Mehta had asked him to recommend foreign investors interested in setting up solar power projects in Gujarat and that’s the reason why he referred Lulla to Mehta. But Salve’s claims are belied by the fact that Lulla’s project report itself mentions that his company had already had a few meetings with Energy Secretary DJ Pandian and Gujarat Energy Development Agency CMD VH Buch on the subject, before Lulla chose to route his request to Modi for land allotment through Salve.
Several profound questions on the subject of legal ethics and propriety arise from this.Why did Eros Energy have to route their letter to Modi and the project report through Salve when they were already in touch with the Gujarat government? Does this act of Salve not amount to corporate lobbying? Should Salve, who is an amicus in one of India’s most critical cases, which involves the struggle for justice of thousands of riot victims against a powerful chief minister and his entire government machinery, send business proposals to the same chief minister who stands accused?
Could Salve have been fair, impartial and objective in his analysis of the SIT investigation into the Gujarat riots while recommending corporate deals to the Modi government?
Doesn’t this cast a cloud of suspicion on Salve’s submissions to the Supreme Court on the SIT investigation?
Doesn’t this revelation give credence to the riot victims’ allegations that Salve had condoned the shoddy SIT investigation and had gone soft on the Modi government?
A few legal luminaries, speaking to TEHELKA have strongly condemned Harish Salve’s conduct.
Retired Supreme Court Judge PB Sawant said that it would be highly unethical and untenable for Salve to continue as an amicus after this exposé. “If the email exchanges cited by you are true then in my view it amounts to corporate lobbying,” he says. “The court had appointed Salve to assist the judges. But corporate lobbying will make people doubt his impartiality and objectivity. He must resign and I’m sure he will do that.”
Noted civil liberty lawyer Shanti Bhushan said, “The email exchanges show that if this corporate entity had not gone through Salve, their business proposal would not have got the preferential treatment from the Gujarat government. Salve should have realised his delicate status of an amicus in a case involving a profound cause of justice. His conduct is clearly not in the keeping with the high traditions of amicus curiae.”
Many other senior lawyers contacted by TEHELKA refused to be drawn into the controversy, citing their acquaintance with Salve. Arun Jaitley, leader of the Opposition in the Rajya Sabha and a distinguished lawyer himself, said, “Since I don’t know the merits of the case, I would not be in a position to comment. But I can say that during my tenure as law minister, Salve was solicitor general and I always found him professionally independent and apolitical in his functioning as a law officer.”
Given the political context, the issue is poised to generate a heated debate in legal circles in the coming days. THIS IS how the Eros Energy deal played out. On 27 April 2010, Daniel Coyle, a senior official of Eros Energy, wrote to Harish Salve on his email id email@example.com: “Dear Harish. Please find attached a letter from Eros Energy to Shri Narendra Modi with an expression of interest document outlining our plans for Gujarat. Best Regards. Daniel.” The mail was copied to Kishore Lulla and Eros Energy Group CEO Sean Hanafin. On 28 April, Salve forwarded Lulla’s project report and his letter to Modi to the Gujarat government’s Additional Advocate General Tushar Mehta on his email id firstname.lastname@example.org. He wrote: “Dear Tushar. Attached is a note on the solar project. Best wishes.”
On 29 April, Mehta forwarded Salve’s email along with Lulla’s project report and letter to Girishchandra Murmu, the additional principal secretary to the chief minister, on his email id email@example.com. He wrote: “Dear Shri Murmu. Please find enclosed herewith a letter sent to me by Shri Harish Salve along with the project report of Eros Energy. Regards. Tushar Mehta.” Mehta wrote this mail at 10.02 pm.
Within four minutes, at 10.06 pm, Mehta emailed back to Salve: “Dear Shri Salve. As discussed, please find the mobile phone numbers of the following: 1. Shri K Kailashnathan, IAS, principal secretary to the chief minister, 9978406003. 2. Shri Girish Chandra Murmu, IAS, additional principal secretary to the chief minister, 9978406119. With Regards. Tushar Mehta.”
Further to this email correspondence, on 4 May 2010, Mehta forwarded Salve’s email along with Lulla’s project report and letter to Sanjay Bhavsar, officer on special duty to the CM, on Bhavsar’s email id firstname.lastname@example.org. He wrote: “Dear Shri Sanjaybhai. Kindly find herewith the mail received from Shri Harish Salve. Please do the needful.” The same day, bhavsar wrote back to Mehta: “Dear Sir. Received your mail. I will reply you shortly (sic). Thanks.”
Asked to explain, Lulla told TEHELKA, “We were interested in setting up solar power projects in the states of Gujarat, Madhya Pradesh, Rajasthan and Tamil Nadu. In all these states we approached the government independently.” When asked why he chose to contact Modi’s office through Salve in the case of Gujarat, Lulla said he wrote to Salve as a friend, seeking his help in the matter.
Salve claimed that he had not made any financial gain from the deal. However, when asked why he routed Lulla’s business proposal to Modi’s top officials, he gave conflicting and unconvincing replies (see the interview, page 26). On the one hand, he said that the Gujarat government was looking for investments in the field of solar power and that’s why he sent Lulla to Gujarat. At other times he said that since Lulla was a friend and he wanted to save him from bureaucratic hassles. Through it all, he maintained that his actions didn’t amount to impropriety. Instead, he claims his conduct was is in line with the highest traditions of the office of amicus curiae in the country.
IN APRIL 2002, Citizens for Justice and Peace Secretary Teesta Setalvad, along with several other human rights activists like former People’s Union for Civil Liberties chairman Devendra Pathak and Father Fredrick Prakash, had filed a petition before the apex court asking for an independent probe by the CBI and transfer of riot cases outside state of Gujarat. In 2003, the National Human Rights Commission (NHRC) also filed a petition asking for transfer of trials outside Gujarat. Both these petitions were clubbed by the Supreme Court and the case came to be known as NHRC vs State of Gujarat.
In 2003, the incumbent Chief Justice of India, Justice VN Khare appointed Salve as the amicus in the case. Since then Salve has continued to hold that office. But for the past two years, the NGOs representing the riot victims have been severely critical of Salve’s role as an amicus. Speaking to TEHELKA, Setalvad said, “Nearly six years after our criminal writ petition praying for the transfer of investigation in nine major riot cases to the CBI was filed, that on 26 March 2008 that the Supreme Court appointed a SIT. Though it was headed by a retired CBI director, it comprised of Gujarat police officials. When the matter of who would constitute the team came up, the CJP on behalf of the victim survivors pleaded that only those officers from Gujarat who enjoyed reputations of neutrality and impeccable integrity should be included. But to our shock the amicus accepted the names of officers given by the state of Gujarat without even consulting us. We placed our objections to this unfair procedure and suggested alternate names but nothing happened.”
The apex court had appointed retired CBI director Raghavan, a Tamil Nadu cadre officer, as SIT chairman. But three crucial members of the probe team — IGs Ashish Bhatia, Geeta Johri and Shivanand Jha — were all picked from Gujarat Police. It was these three officers who were entrusted with the direct supervision of the probes. Besides, the entire supporting team, from constables to inspectors to deputy SPs — who actually carried out the field investigation, including interrogation of the accused and examination of witnesses, were all picked from Gujarat Police.
Two officers of the SIT in particular — Jha and Johri — attracted censure of civil right activists for their alleged biased and shoddy investigation. While transferring the Sohrabuddin Sheikh fake encounter case from the Gujarat CID to the CBI, the Supreme Court had passed strictures against Johri. In April 2010, the Supreme Court finally ordered that both Johri and Jha should be removed from the SIT. But when the question of their replacements arose, Salve again didn’t consult the riot victims and their representatives and went along with the names suggested by Raghavan.
Besides, the victims claim that despite their highlighting the issue of shoddy and even motivated investigation, Salve did not pay much heed nor did he push the SIT hard enough for corrective action. ‘From October 2009 to April 2010, we kept on filing applications before the apex court highlighting innumerable instances of shoddy investigation but the amicus never gave us a hearing,” said Setalvad. “In January 2010, our counsels Aspi Chinoi and later Kamini Jaiswal even prepared written arguments detailing the failures of the SIT investigations, which were then sent to the amicus. But still he did not respond until the Supreme Court via its order dated 6 April 2010 specifically asked the amicus to hear us out.”
The SIT’s report card presents a dismal picture. At every stage, the victims had to petition the court to make the SIT investigate critical aspects of different cases. In one instance, even a special public prosecutor raised questions about the questionable conduct of senior SIT members. In April 2010, RK Shah, the special public prosecutor in the Gulberg Society massacre case, had resigned in disgust, accusing the SIT of being uncooperative and not providing him the necessary records required for successfully prosecuting the accused.
The Supreme Court had to finally ask a non-Gujarat police officer, AK Malhotra, to inquire into the apparent lapses in the investigation.
In many instances, the SIT, instead of taking criminal action, had recommended departmental action against senior police officers for their complicity in the riots. In the probe against Modi’s alleged complicity in the riots, the SIT has submitted an ex- 12 MARCH 201 1 TEHELKA extremely flawed and self-contradictory report. TEHELKA through its cover story (Here’s the Smoking Gun, 12 February) had exposed the cover-up behind the probe.Questions about SIT’s credibility and the role of Salve as an amicus are being raised.
FOR SAFEGUARDING their business interests in court, it is Salve who has often been the first choice of doyens of the corporate world. Recently, when Ratan Tata petitioned the Supreme Court on the issue of the leakage of the Niira Radia tapes, he approached Salve to fight his claim of right to privacy. Before that, Salve had secured a favourable verdict from the apex court for his client Mukesh Ambani in the hotly contested gas pricing dispute with his younger brother Anil.
Besides, Salve has also been the counsel for top politicians like Mulayam Singh Yadav, Mayawati, Prakash Singh Badal and Amarinder Singh. Salve, whom India Today had once ranked as the 18th most powerful man in the country, is seen as an expert in the field of Constitutional law, commercial law and taxation law. He was also the solicitor general of India from November 1999 to November 2002. Recently, Salve in his capacity as an amicus in the decades-old forest preservation case, filed a contempt petition against senior lawyer Prashant Bhushan when, in an interview to TEHELKA, Bhushan had questioned the integrity of the past 16 Chief Justices of India.
In his counter-affidavits, Bhushan accused Salve of playing a dubious role as an amicus in various cases of public interest and accused him of professional misconduct. Bhushan argued, “The contempt petition has been filed by a person who has repeatedly misused his position as amicus curiae and has taken briefs/retainers to appear for various private parties in matters in which he has been appearing as amicus curiae as well.”
Bhushan cited several instances where Salve had appeared both as an amicus and also as a counsel in the same case. But Salve claimed that Bhushan’s allegations are not true. He claimed he had always maintained his objectivity. “In so many big cases we appear for a client and the next day we appear against the client. The court respects our objectivity because we are able to delink from the situation and are able to deal with the matter,” he said.
In matters of immense public interest, the Supreme Court has often appointed lawyers of impeccable integrity having the finest knowledge of law as amicus curiae. As a friend of the court, the amicus represents neither of the contesting parties but acts purely in public interest.
In the past, senior advocates like Anil Divan have performed the role of amicus with aplomb. In the 1996 Jain Hawala case, Divan’s submissions to the court pushed the CBI into investigating the matter deeper and prosecuting the bigwigs of Indian politics. He submitted to the court that the CBI chief should be restrained from consulting the then Prime Minister PV Narasimha Rao on the case. The court upheld the submission, thus freeing the probe from the ambit of the PMO.
He later nixed the United Front government’s move to amend the Prevention of Corruption Act by excluding MPs and MLAs from the ambit of ‘public servant.’ The court intervened and the United Front government had to hurriedly drop the proposal which was aimed at protecting the politicians in the ongoing Jain Hawala investigation. He had successfully pushed the PMO to demit the then Uttar Pradesh governor Motilal Vohra and Kerala governor P Shiv Shankar from their offices so that they could be prosecuted. Divan had to often let go lucrative assignments when he refused briefs from corporate companies as he thought they conflicted with his position as an amicus in related cases.
Salve maintains that his conduct as an amicus has been in keeping with the high standards set by people like Divan. The decision lies with the reader.
- The New Nawabs (indialawyers.wordpress.com)
- Clean chit to Modi in Guj riot cases: sources (ibnlive.in.com)
- Advani: Clean-chit to Modi ‘most heartening’ (ibnlive.in.com)
- Modi ‘partisan’ over Gujarat riot (bbc.co.uk)
- 11 death sentences in India’s Gujarat riots case – AFP (news.google.com)
- Gujarat and its controversial leader: Divide and rule (economist.com)
The Vice President of India Shri M. Hamid Ansari has said that the Citizens can legitimately enquire if those entrusted with the daily assessment of the Executive have discharged their duties? Also, and on an increasingly complex set of issues, have they legislated after due deliberation and given themselves sufficient time to do so meaningfully? Delivering Presidential address at the “Durga Das Basu Centenary celebrations” here today, he has said that the Statistical data reveals a steady decline in the annual number of sittings of Parliament and of state legislatures. As a result, and in the view of many competent observers, the idealised view of legislature as a deliberative body is a far cry from reality. Instead, the legislature has in the public mind become ‘a site for adversarial combat rather than of deliberative clarity’. Consequently, ‘disruptive adjournments have become the main tool of parliamentary opposition rather than reasoned argument’.
Shri Ansari has said that we must recognise that the key to the problems and crises of governance relate to the ‘software of our democracy’–either a lack of awareness of the values and morality of the constitution among citizenry and the polity or its deliberate disavowal.
Following is the text of the Vice President’s Presidential address :
“To venture into the realm of law, for someone untutored in the discipline, can fairly be described as foolhardy. Greater, much greater, is the quantum of folly when such a venture is in the field of constitutional law, a calling located at the intersection of law, jurisprudence and political philosophy, and dealing with the interpretation and implementation of the Constitution itself and thereby touching upon the most fundamental relationships in society.
And yet, this is precisely the sin now being committed by this speaker before this august and learned audience. Mia maxima culpa is easier said than undone and the only mitigating factor to cite in defence is to submit that the incitement to commit the wrong came from none other than a very high ranking law officer of the Republic!
Since sins committed cannot be undone, the remaining option is to seek forgiveness through penance and repentance.
Well endowed with human frailties, I can only promise an honest try.
Durga Das Basu needs no introduction to students of law and to all those who seek to further their understanding of the robust text of our Constitution. His treatises on the subject, firmly entrenched in voluminous case law, have become standard source of reference. A celebratory exercise is thus very much in order.
Human history shows that legal codes are either bestowed or made. Once in place, an understanding of the text, and the context, requires comprehension of both. This takes the form of commentaries. We do not know if such commentaries existed on the ancient texts of Hammurabi, or Solon. We do know that Manusmrti attracted nine complete commentaries. We also know that medieval canonists in Europe or the faqihs in Muslim societies did dilate a good deal on the intent and purpose of their respective codes.
In modern times the classic work, of course, is Judge William Blackstone’s Commentaries on the Laws of England published in 1776. More relevant for our endeavour today is Joseph Story’sCommentaries on the Constitution of the United States, published in 1833. The purpose of the latter, in Judge Story’s own words, was to bring before the reader ‘the true view of (the Constitution’s) powers as seen by its founders ‘and confirmed and illustrated by the actual practice of government’.
This practice, in no small measure, included the interpretation of the constitution by the courts. It is true of both the United States and of India. Both helped induce a spirit of constitutionalism amongst the citizens. Some landmark judgments of our own Supreme Court testify to it.
It has been said by an eminent authority on the working of our Constitution that the framers ‘spun a seamless web’ of three strands focused on (a) protecting and enhancing national unity and integrity, (b) establishing the institutions and spirit of democracy and (c) fostering a social revolution to better the lot of the masses. The framers believed that the three strands are mutually dependent and inextricably intertwined. The efficacy of the functioning of each strand, and a harmonious relationship of each with the other two, was considered by the founding fathers an essential requirement.
Given the constraint of time, and at the risk of selectivity, I would like to confine my remarks today to some aspects of the second strand and think aloud about some features of democracy at work in our society.
The concept of democracy has been dilated upon down the ages. It is premised on the dignity and freedom of the individual. To Aristotle, democracy meant the rule of ‘the poor and the majority’; the preferred form, he opined, was one that upheld the supremacy of the law. Rousseau, on the other hand, considered democracy so perfect a form as to be fit only for ‘a nation of gods’. In modern times it is considered, as political scientist David Held put it, ‘a universal formula for legitimation for a broad range of radically different societies and their respective modes of governance and political participation’
Whatever the form, an essential ingredient of modern democracy is its participatory character through a set of institutions agreed upon by the citizens and incorporated in laws, practices and conventions. The efficacy of these institutions thus becomes the litmus test for assessing the success of democratic practice.
This assessment is to be done in two segments and relates to the ‘hardware’ and ‘software’ of democratic principle and practice. Most observers agree that in the past six decades we have internalized in some measure the ‘hardware of democracy’ – by this, I mean the mechanisms, mechanics, institutions and procedures of our parliamentary democracy. Citizens are cognizant of periodic elections to elect their representatives to the Parliament, State Legislatures and Local Government. They remain acutely aware of the Executive and the benefits and pitfalls of dealings with it. They are knowledgeable in some measure of the judicial process.
This audience knows that parliamentary democracy necessitates government that isRepresentative, Responsible, and Responsive. The first implies balanced representation of all segments of the body politic; the second necessitates ministerial responsibility to the elected legislature; the third makes incumbent responsiveness at various tiers of governance – national, state and local – as well as transparency, accountability, public consultation and citizen engagement with the political process.
While representative-ness and responsiveness are important, allow me to dwell here on responsible-ness of the Executive as its impact on the citizenry is direct and immediate.
One needs to begin at the beginning. I subscribe to the view that the Constituent Assembly of India debates should be essential reading for all those wishing to comprehend the intent and purpose of the founding fathers who, despite political and ideological differences on some issues, managed to reconcile them and arrive at workable formulations.
While introducing the Draft Constitution in the Constituent Assembly in November 1948, Dr. B. R. Ambedkar outlined two significant criteria that guided the Drafting Committee to suggest a Parliamentary democracy. He said:
A democratic executive must satisfy two conditions – It must be a stable executive and it must be a responsible executive.
In the Parliamentary system, the assessment of responsibility of the Executive is both daily and periodic. The daily assessment is done by members of Parliament, through questions, Resolutions, No-confidence motions, Adjournment motions and Debates on Addresses. Periodic assessment is done by the Electorate at the time of the election which may take place every five years or earlier. The Daily assessment of responsibility is far more effective than the periodic assessment and far more necessary in a country like India. The Draft Constitution in recommending the Parliamentary system of Executive has preferred more responsibility to more stability.
Thus, and apart from law-making, assessing the responsibility of the Executive on a daily and periodic basis constitutes the single most important element of being a Parliamentary democracy.
Our record on periodic assessment is good and universally acknowledged. Citizens can, however, legitimately enquire if those entrusted with the daily assessment of the Executive have discharged their duties? Also, and on an increasingly complex set of issues, have they legislated after due deliberation and given themselves sufficient time to do so meaningfully? Statistical data reveals a steady decline in the annual number of sittings of Parliament and of state legislatures.
As a result, and in the view of many competent observers, the idealised view of legislature as a deliberative body is a far cry from reality. Instead, the legislature has in the public mind become ‘a site for adversarial combat rather than of deliberative clarity’. Consequently, ‘disruptive adjournments have become the main tool of parliamentary opposition rather than reasoned argument’.
The other element that deserves scrutiny is the ‘software of democracy’. How many citizens are aware of the spirit and the core values that inform the Constitution and the morality that guides it? How well versed are the functionaries in the political system aware of the software of our democracy?
The problem was recognised and addressed by Dr. Ambedkar. He conceded that the new institution of democracy was only ‘top dressing on Indian soil that was essentially undemocratic’, adding that our people have ‘yet to learn constitutional morality’. It is not a natural sentiment but has to be cultivated. He therefore felt that the diffusion of constitutional morality throughout the body politic was indispensable for the peaceful working of a democratic Constitution, since any powerful and obstinate minority may render its working impracticable, without being strong enough to conquer ascendancy for themselves.
Ambedkar identified a few essential ingredients of constitutional morality:
1. ”A paramount reverence for the forms of the Constitution, enforcing obedience to authority acting under and within these forms yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of the Constitution will not be less sacred in the eyes of his opponents than in his own.”
2. “Holding fast to constitutional methods of achieving our social and economic objectives” and “abandoning the bloody methods of revolution” and “the method of civil disobedience, non-cooperation and satyagraha”. Where constitutional methods are open, there can be no justification for such unconstitutional methods which are “nothing but the Grammar of Anarchy”.
3. Eschewing “Bhakti or hero-worship” in politics, which is a “sure road to degradation and to eventual dictatorship”.
4. Ensuring that political democracy is followed by social democracy, a way of life which recognizes liberty, equality and fraternity as the principles of life forming “a union of trinity” where to divorce one from the other is to defeat the very purpose of democracy.
He also added a word of caution. It is perfectly possible, he said, to pervert the Constitution without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution.
The experience of the last six decades, ladies and gentlemen, demonstrates our success in widening and deepening the mechanisms of democracy, both horizontally and vertically. We have transformed our dual polity into a three-tiered one by giving constitutional status to local government. In the process we have introduced many innovations including decentralized planning, reservations for women, and establishment of state election commissions and finance commissions. Democracy today touches the remotest hamlet and the poorest citizen in its working.
At the same time, we must recognise that the key to the problems and crises of governance relate to the ‘software of our democracy’ – either a lack of awareness of the values and morality of the constitution among citizenry and the polity or its deliberate disavowal.
What is the corrective? How, and where, should it be initiated?
The corrective to bad governance is good and responsive governance rooted in our constitutional values. It has to be across the board and cover all the institutions of the state and all segments of the body politic. It necessitates an ethical corrective, a rejuvenation of the value system, a closing of the gap between public and private morality.
In the political realm, and notwithstanding Edmond Burke’s classic exhortation to the electors of Bristol, the starting point in today’s world should be the political parties. They are the instruments of our people to implement their agenda and work in accordance with their mandate. They provide the life blood of the Legislature and the Executive, and constitute the best media of political and social change. They embody within them the possibilities of realizing our constitutional vision, or of sidestepping it.
Political parties are needed for more than merely exercise of political power. Their credibility and representative-ness are critical elements in bringing about stable polities that are essential for socio-economic progress. They set examples of democratic practice, influence the nature of political mobilization, alliance formation and societal accommodation. By their actions, they can either spark societal conflict or facilitate conflict management. Political parties lie at the root of any debate on representative-ness, societal conciliation, and governance that is accountable, stable and efficient.
The legal fraternity too has an important role in spreading the message of constitutional morality and strengthening the ‘software’ of our democracy. It can perhaps do so with greater efficacy by addressing what Upendra Baxi has called ‘its own pathologies’.
Before I conclude, allow me to go back to Judge Joseph Story and cite an immortal passage that concluded his great work:
The structure has been erected by architects of consummate skill and fidelity; its foundations are solid; its compartments are beautiful, as well as useful; its arrangements are full of wisdom and order; its defences are impregnable from without. It has been reared for immortality, if the work of man may justly aspire to such a title. It may, nevertheless, perish in an hour by the folly, or corruption, or negligence of its only keepers, THE PEOPLE. Republics are created by the virtue, public spirit, and intelligence of the citizens. They fall when the wise are banished from the public councils, because they dare to be honest, and the profligate are rewarded, because they flatter people, in order to betray them.
In a similar vein, Dr. Ambedkar too opined that if things go wrong under the Constitution, ‘the reason will not be that we had a bad constitution’ but because ‘Man was vile’!
I, for one, would unashamedly assert that both hold good in equal measure for the edifice given to us by the founding fathers of our own republic.
I thank Shri Gopal Subramanium and the Durga Das Basu Centenary Celebration Committee for inviting me to preside over today’s function.”
- Democracy Is Caesar, Too (lewrockwell.com)
- Britain is ‘one of most undemocratic countries in Europe’ (dailymail.co.uk)
- Deliberative Democracy and Political Ignorance (volokh.com)
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“The place of justice is a hallowed place, and therefore not only the Bench, but also the foot space and precincts and purpose thereof ought to be preserved without scandal and corruption”.
“On Judicature” by Francis Bacon
In the year 1995 I delivered the First P.K.Goswami Memorial Lecture at Guwahati with the title “The Independence of The Judiciary—Some Latent Dangers”. In a way it was a sequel to my apprehension over the years expressed judicially in my separate opinion in the K. Veeraswami case, 1991(3) SCC 655 followed by the events leading to the V. Ramaswami cases that I had to hear and decide. Fifteen years later I am anguished that some of my apprehensions threaten to come true! Hence, the choice of this topic for the lecture to pay homage to the memory of a doyen of the Madras Bar, S.Govind Swaminadhan who was a true professional practicing the highest standards of professional conduct and ethics in the Bar, which is the greatest assurance for judicial independence. In my vocabulary, the word ‘Bar’ denotes the entire legal profession—the practicing lawyers as well as the judges on the Bench. Another reason for this choice goes back to the time of my entry to the Bar in 1955 when the first book to read and digest given to me by my senior, G.P.Singh (later Chief Justice of the M.P.High Court) was a compilation of lectures delivered by a senior member of the Madras Bar, K.V.Krishnaswami Iyer to the junior members on professional conduct and ethics. The high tradition of professional conduct and ethics of the Madras Bar coupled with my baptism in the Bar with this lesson indicated the obvious choice of the topic for beginning the Lecture series in the memory of S.Govind Swaminadhan at this venue. It is not merely contextual but also of great constitutional significance at a time when prompt measures are needed for protecting judicial independence from lurking dangers.
Judicial Independence & Accountability
The independence of the judiciary is a necessary concomitant of the power of judicial review under a democratic Constitution. The foundation for judicial review without a specific provision under the American Constitution was laid by Marshall, C.J. in 1803 in Marbury v. Madison; even though much earlier in 1608 it was Lord Coke whose opinion in Dr. Bonham’s case germinated that concept. In the Indian Constitution, judicial review is expressly provided inter alia in Articles 13, 32, 136, 141, 142, 226 and 227. It is also recognized as a basic feature forming an indestructible part of the basic structure of the Constitution pursuant to the decision in Keshavananda Bharti, AIR 1973 SC 1461. The directive principle of State policy in Article 50 mandates separation of judiciary from the executive to maintain its independence, as essential for its function as the watchdog under the Constitution. However, like every organ of the State and every public functionary in a democracy the judiciary as an institution and every judge as a public functionary is accountable to the political sovereign—the People. The only difference is in the form or nature of the mechanism needed to enforce their accountability. In short, judicial accountability is a facet of the independence of the judiciary; and the mechanism to enforce judicial accountability must also preserve the independence of the judiciary.
The rule of law which is the bedrock of democracy will be adversely affected if the independence of the judiciary is compromised by the erosion of the integrity of the judiciary. Such erosion can be from within as well as from without. Safeguards to protect the judicial independence are in our Constitution in addition to the several international instruments, which can be read into the constitutional guarantees by virtue of the canons of construction evolved in Vishakha, AIR 1997 SC 3011. In addition to the UDHR and the ICCPR, the UN has set forth a set of standards known as the ‘Basic Principles on the Independence of the Judiciary’. Also ‘The Beijing Principles on the Independence of the Judiciary, 1997’ adopted at Manila by the Chief Justices of the Asia Pacific Region; and ‘The Bangalore Principles of Judicial Conduct, 2002’ are two such documents needing particular mention. The essential values stated in the Bangalore Principles are: judicial independence, both individual and institutional, as a prerequisite to the rule of law; impartiality, not only to the decision itself but also to the process; integrity; propriety, and the appearance of propriety; equality of treatment to all; competence and diligence. It concludes with the need for effective measures to be adopted to provide mechanisms to implement these principles.
To protect the judiciary from dangers within, the framers of Indian Constitution considered it sufficient to provide for removal of a judge of a High Court or the Supreme Court in the extreme case of proved misbehaviour or incapacity under Articles 217 and 124 respectively; and to vest the control over the subordinate judiciary in the respective High Court under Article 235. In this manner the Constitution provides for enforcing judicial accountability preserving the independence of the judiciary.
Mechanism for Judicial Accountability
A serious debate is now raging about the inadequacy of the existing mechanism for enforcing the judicial accountability of any erring judge in a High Court or in the Supreme Court. There is now a general consensus that some recent incidents involving a few in the higher judiciary has exposed the inadequacy of the existing provisions to deal with the situation; and it calls for an effective mechanism to enforce the judicial accountability of the higher judiciary, in case of need. There can be no doubt that the public perception in this behalf cannot be ignored. Public confidence in the judiciary is its real strength that has also legitimized ‘judicial activism’ through Public Interest Litigation; and converted the judiciary’s image from the ‘least dangerous branch’ without the ‘purse or the sword’ (borrowing from Alexander Hamilton in the 78th Federalist) to a strong arm of the State. The recent clamour for effective judicial accountability justified by a few recent incidents must be properly channelised to ensure that an effective mechanism for accountability of the higher judiciary is developed without eroding the independence of the judiciary. It must be borne in mind that the number of erring superior judges is miniscule which must not embarrass the vast majority of correct judges. The threat to the independence of the judiciary must be averted by a sensible balancing act.
Once the integrity and accountability of the higher judiciary is assured, the subordinate judiciary can be easily managed by virtue of Articles 50 and 235. High Courts are pivotal in the administration of justice. Once they justify people’s confidence, the subordinate courts would not lag behind. The best way to exercise control over the subordinate courts is for the High Courts to lead by example. It is well known that “An ounce of practice is worth more than a ton of precept”. All the precept in the form of circulars and guidelines to the subordinate judiciary from the higher judiciary is ineffective unless it is identified with the practice of the preachers. That does not appear to be the current perception in all cases.
Areas of Concern
Focus on some important areas is needed. A few of these were identified in my above 1995 lecture, separate opinion in the K.Veeraswami case, and the majority opinion in the Second Judges case. A brief mention of these in the present context is helpful.
In the 1995 lecture, I pointed out the latent dangers to judicial independence from within and concluded thus: “The existence of power must be accompanied by accountability…Erosion of credibility in the public mind resulting from any internal danger is the greatest latent threat to the independence of the judiciary. Eternal vigilance to guard against any latent internal danger is necessary, lest we suffer from self-inflicted mortal wounds…The absence of any codified rules or norms to regulate judicial behaviour at the higher levels has been on account of the view that those entrusted with the task of regulating the conduct and behaviour of others do not need to be told of the requirement from them. However, if we fail in living up to that expectation, it should not be surprising if in the near future there is move by an outside agency to step in and provide a solution to the felt need…The need of the hour, therefore, is to realize this clear and present danger as an imminent threat to the independence of the judiciary from within…In my view there is no time to lose and we must act promptly…Observance by us of the norms and guidelines indicated for the members of the judiciary by the ancient texts and the judicial verdicts is a sure way to prevent any threat from the lurking latent dangers from within. It would also satisfy the legitimate expectation of the people of our accountability which must accompany the investment of any public power”.
Earlier in the K.Veeraswami case, 1991 (3) SCC 655 my dissent recognized the felt need for suitable legislation, the existing provision being inadequate, to ensure accountability of the higher judiciary protecting the judicial independence. Therein, I had said: “If there is now a felt need to provide for such a situation, the remedy lies in suitable legislation for the purpose of preserving the independence of judiciary free from likely executive influence while providing a proper and adequate machinery for investigation into allegations of corruption against such constitutional functionaries and for their trial and punishment …The social sanction of their own community was visualized as sufficient safeguard with impeachment and removal from office under Article 124(4) being the extreme step needed, if at all. It appears that the social sanction of the community has been waning and inadequate of late. If so, the time for legal sanction being provided may have been reached”.
Having been convinced that the majority opinion in the K.Veeraswami case was not workable (as proved by later events), I added a warning in one para at the end of my draft dissent, which I omitted at the time of its pronouncement because of its strong language. The apprehension therein of a later intrusion by the executive to prescribe for us having now come true, it may help to recall that sentiment with the hope that some prestige may be salvaged even now in enactment of the impending legislation to cover the field. I believe that self regulation is dignified while outside imposition is demeaning. The omitted draft para from that opinion was:
“With no pretensions of a ‘prophet with honour’ to borrow the title from Alan Barth’s compilation of opinions of some great dissenters, and no desire to be a prophet of doom, I deem it fit to end on a note of caution. My view is not shared by the majority. I hope they are right. But, if it be not so, let not posterity accuse us that the control over the judiciary denied to the executive by the Constitution and the Parliament, and which the executive could not wrest through the Parliament was conferred on it by judicial craftsmanship itself. I do hope that in spite of the present clamour for the majority view, in calmer times, when present pressures, passions and fears subside, and the potential threat of the yet unknown and unexpected power in the executive without the requisite statutory safeguards is fully realized, there will be time enough to effectively check any intrusion into the independence of judiciary by this means. Undoubtedly, there is erosion of values in all spheres but even now the higher judiciary retains comparatively the greatest credibility in public eye, as it did in earlier times. Is it, therefore, correct and wise to vest the executive, which does not enjoy even equal, much less greater credibility, with this extra power not envisaged by the Constitution and the Parliament? The answer at present by the majority is in the affirmative, which would be the law. It is the future, which will unfold the true canvass’.
The need to regulate this area by internal discipline to prevent outside intrusion prompted resolutions to this effect in the Chief Justice’s conferences, but the general reluctance from within kept the matter in abeyance till the three resolutions were adopted unanimously by the Supreme Court on May 7, 1997: Restatement of Values in Judicial Life; Declaration of Assets by the Supreme Court and High Court judges; and ‘In-house Procedure’ for inquiry into allegations against these judges. These resolutions were later adopted in the Chief Justice’s Conference in 1999. The Bangalore Principles, 2002 also affirmed the Restatement of Values. These resolutions provided the framework for the needed legislation to cover the field without any scope for executive intrusion in enactment of the legislation. Before demitting the office of the CJI, I also wrote a letter on December 1, 1997 to the Prime Minister to this effect in a bid to ensure judicial accountability preserving the independence of the judiciary. After my retirement, I have reiterated it in a letter of April 7, 2005 to the present Prime Minister.
It saddens me to find that the judiciary appears to have lost the initiative and the political executive who also controls the Parliament in our constitutional scheme is now to determine the contents of the impending legislation. What troubles me even more is the reported initial assertion of the CJI, K. G. Balakrishnan that the superior judges need not declare their assets unless bound to do so by a law, in spite of the unanimous resolution of the Supreme Court on May 7, 1997 since that has only moral authority; and later the judicial challenge to applicability of the RTI Act in the High Court and then to itself! I am distressed at the comments made publicly and heard privately about the higher judiciary in this context. However, the subsequent dilution of that stand is welcome news. The perception that law alone and not morality binds the judiciary is in conflict with the judicial tradition and is disturbing. It ignores Jeffry Jowell’s wise enunciation that ‘law is seen as institutionalized morality’; and David Pannick’s conclusion in his book–‘Judges’: “The qualities desired of a Judge can be simply stated: that he be a good one and that he be thoughts be so”. However, the recent response of the Delhi High Court (in L.P.A. No. 501 of 2009 decided on 12 January 2010) led by Chief Justice A.P.Shah in rejecting the tenuous stand of the Chief Justice of India, K.G.Balakrishnan that the office of CJI and the Supreme Court are above the law (RTI Act) applicable to all public functionaries in our republican democracy is to be hailed as a welcome blow for transparency and accountability, which are acknowledged principles of standards in public life. The decision first by a single judge, S.Ravindra Bhat, affirmed on appeal by the full bench of the Delhi High Court is a glaring proof of judicial independence. The observations of A.P.Shah, C.J. speaking for the full bench that “Judicial independence is not the personal privilege of the individual judge, but a responsibility cast on him”, and “Democracy expects openness…don’t wait for Parliament to compel judges to disclose assets and undermine judicial independence”, provide strong fillip to judicial independence.
Chief Justice A.P.Shah has articulated the true concept of judicial independence reiterating the modern view. He has echoed the words of Lord Woolf, C.J. in an article wherein he said, “The independence of the judiciary is therefore not the property of the judiciary, but a commodity to be held by the judiciary in trust for the public”. It is time the Chief Justice of India, takes the lead in this direction provided admirably by the High Court to bring quietus to the unsavory controversy threatening judicial independence. Indira Gandhi’s case, AIR 1975 SC 2299 enunciated certain propositions: accountability is an integral part of a democratic polity; it implies the people’s right to know the manner of working of the government; accountability improves the quality of governance; secrecy, on the other hand, promotes nepotism and arbitrariness; and, therefore, article 19(1)(a), which implies open government, is premised on the ‘right to know’. This view has been reiterated in later decisions: S P Gupta, AIR 1982 SC 149; Secretary, Ministry of IB, AIR 1995 SC 1236. It is reasonable to assume that the Supreme Court will practice what it has preached and made the law of the land. It is useful to recall Lord Acton’s summary of the imperative of the people’s ‘right to know’. He said: “Every thing secret degenerates, even the administration of justice; nothing is safe that does not show it can bear discussion and publicity”. Let me hope that the Supreme Court led by the Chief Justice of India will now accept the verdict in good grace and not appeal to itself to re-examine its obvious merit of the Delhi High Court judgment! Conflict of interest in the further appeal to itself is obvious, since the doctrine of necessity is not attracted. Otherwise, we are bound to go down in the public estimation which would rightly conclude that we do not practice what we preach.
Role of the Bar
The Bar has a significant role in such a situation. I wish the Attorney General, G.E.Vahanvati who appears for the Supreme Court draws inspiration from some of his illustrious predecessors to advise the CJI against a further appeal by the Supreme Court now to itself. Govind Swaminadhan as Advocate General of Tamil Nadu boldly contradicted Chief Justice A.N.Ray at the hearing of the review of Kashavananda Bharti decision when the CJI attempted to justify the review saying it was at the behest of the former. Lal Narayan Sinha as the Solicitor General refused to argue the Union Government’s untenable plea in the Habeas Corpus matter during the Emergency (1975–’77). M.C.Setalvad, C.K.Daftary, S.V.Gupte and H.M.Seervai to name a few, were similar leaders of the Bar who did not hesitate to guide correctly the Chief Justices when ever need arose to preserve the dignity, credibility and the independence of the judiciary. M.C.Setalvad and Sir Alladi Krishnaswami Aiyer had no hesitation in giving an opinion to the President of India, Dr. Rajendra Prasad, which was not to his liking. Leaders of the Bar must not abdicate their role to preserve judicial independence with judicial accountability.
Another issue relevant in this context is of the appointment of judges in the Supreme Court and the High Courts. Chief Justice of India, K.G.Balakrishnan asserts that the collegium headed by him is strictly following the decision in the Second Judges case by which they are bound. The general perception voiced eloquently by the executive is that the executive has no part in making these appointments for which the judicial collegium alone is responsible and answerable. In this manner the judiciary is held responsible for the aberrations in these appointments in the recent years. It is true that the veto power granted to the executive by the First Judge’s case, AIR 1982 SC 149 is taken away by the Second Judge’s case, AIR 1994 SC 268; but it is not correct that the executive has been denuded of all power in adjudging the suitability of the candidates for appointment. However, greater responsibility does lie in the judicial collegium because of its role under the existing system. A brief reference to the Second Judge’s case is necessary.The significance of every single appointment to the Supreme Court or a High Court was emphasized in the majority opinion in K.Veeraswami case. It said:
“A single dishonest judge not only dishonours himself and disgraces his office but jeopardizes the integrity of the entire judicial system…a judge must keep himself absolutely above suspicion; to preserve the impartiality and independence of the judiciary and to have the public confidence thereof”.
In my separate opinion I had also emphasized the need for strict scrutiny at the entry point that will avoid the need for later removal of a bad appointment. I had said: “The collective wisdom of the constitutional functionaries involved in the process of appointing a superior judge is expected to ensure that persons of unimpeachable integrity alone are appointed to these high offices and no doubtful person gains entry…even if sometime a good appointment does not go through. This is not difficult to achieve”.
A brief reference to the Second Judge’s case, AIR 1994 SC 268 is apposite. The majority opinion held:
“The process of appointment of judges of the Supreme Court and the High Courts is an integrated ‘participatory consultative process’ for selecting the best and most suitable persons available for appointment…There may be a certain area, relating to suitability of the candidate, such as his antecedents and personal character, which, at times, consultees, other than the Chief Justice of India, may be in a better position to know. In that area, the opinion of the other consultees is entitled to due weight, and permits non-appointment of the candidate recommended by the Chief Justice of India…If the non-appointment in a rare case, on this ground, turns out to be a mistake, that mistake in the ultimate public interest is less harmful than a wrong appointment…non-appointment for reasons of doubtful antecedents relating to personal character and conduct, would also be permissible”.
The clear language of the decision leaves no room for any doubt that the executive has a participatory role in these appointments; the opinion of the executive is weightier in the area of antecedents and personal character and conduct of the candidate; the power of non-appointment on this ground is expressly with the executive, notwithstanding the recommendation of the CJI; and that doubtful antecedents etc. are alone sufficient for non-appointment by the executive. The decision also holds that the opinion of the judicial collegium, if not unanimous does not bind the executive to make the appointment.
Some reported instances in the recent past of the executive failing to perform its duty by exercise of this power even when the recommendation of the judicial collegium was not unanimous and the then President of India had returned it for reconsideration, are not only inexplicable but also a misapplication of the decision, which the CJI, Balakrishnan rightly says is binding during its validity. Such instances only prove the prophecy of Dr. Rajendra Prasad that the Constitution will be as good as the people who work it. Have any system you like, its worth and efficacy will depend on the worth of the people who work it! It is, therefore, the working of the system that must be monitored to ensure transparency and accountability.
The Second Judge’s case affirmed by the Third Judge’s case in the Presidential Reference, merely formalizes the procedure developed and followed till executive supremacy in the matter of appointments was given by the First Judge’s case (1982); and that practiced even later by Chief Justices who did not succumb to executive pressure. A few earlier observations to this effect are significant to prove the point. Granville Austin in his book—‘Working A Democratic Constitution: The Indian Experience’ (1999), has dealt with the issue of judicial independence. Some portions therein summarise the experience of the first fifty years. He says: “The CJI during the Nehru period had virtually a veto over appointment decisions, a result of the conventions and practices of the time and the Chief Justice’s strength of character”. He quotes Mahajan, C.J. saying “Nehru has always acted in accordance with the advice of the CJI”, except in rare circumstances, despite efforts by State politicians with ‘considerable pull’ to influence him. The Law Commission chaired by M.C.Setalvad in its 14th report recommended that appointments to the Supreme Court and the High Courts be made solely on the basis of merit sans any other consideration; and on the recommendation of the Chief Justice of the High Court with concurrence of the CJI.
The recent aberrations are in the application of the Second Judge’s case in making the appointments, and not because of it. This is what I had pointed out in my letter of 5 December 2005 to CJI, Y.K.Sabharwal with copy to the two senior most judges, who included the present CJI, K.G.Balakrishnan.
Post-retirement conduct of the superior judges, particularly those of the Supreme Court is also relevant in this context to require mention. In addition to the system providing for the appointment of persons of proven integrity as guardian of the constitutional values, there is the need for constitutional safeguards to insulate them also from possible executive influence through temptations in subtle ways to preserve judicial independence. One such method to penetrate the resolve of even a few of the best is the temptation of lucrative post-retiral benefits given by the executive to a favoured few. The obverse of the constitutional guarantee of security of tenure and conditions of service is the obligation of such constitutional functionaries to the observance of a code of post-retiral conduct eschewing any such temptation. To the extent possible, the needed constitutional prohibitions should also be enacted, to enable the development of healthy conventions. The environment of eroding ethical values calls for this preventive measure. Some instances of post-retirement activity of judges of Supreme Court (including the CJI) are attracting public disapproval, even if voiced privately. Chamber practice of giving written opinions by name to be used by litigants/parties before court/tribunal or any authority; arbitrations for high fees; doing arbitrations even while heading Commissions/Tribunals availing the salary,perquisites and benefits of a sitting Judge/CJI are some activities inviting adverse comments and seen as eroding judicial independence. This too is a threat to judicial independence, which must be averted.
The Constitution needs to provide for systems with checks and balances to eliminate abuse and misuse of public power. The caution administered by Dr. Rajendra Prasad at the concluding session of the Constituent Assembly is worth recalling. He then said: “Whatever the Constitution may or may not provide, the welfare of the country will depend upon the way in which the country is administered. That will depend upon the men who administer it… a Constitution, like a machine, is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them”.
This is the crux of the matter. The expectation from the judiciary is indeed very high in view of the nature of its role in the Constitution. The independence of the judiciary is meant to empower it as the guardian of the rule of law. It is not merely for its honour, but essentially to serve the public interest and to preserve the rule of law. Judicial accountability is a facet of the independence of the judiciary in the republican democracy. There are, therefore, recognized norms of judicial behaviour expected from the judges. In the words of Addison, ‘to be perfectly just is an attribute of the divine nature, to be so to the utmost of our abilities is the glory of man’. This is an apt description of the nature of judicial function.
How to ensure this result, and to achieve the true purpose of judicial independence? It has been answered in the texts and by the recognized judicial conventions restated generally in the above 1997 resolutions. The Allahabad High Court Post-Centenary Silver Jubilee Commemoration Volume reminds us with a quote from the ancient texts:
“Let the king appoint, as members of the courts of justice, honourable men of proved integrity, who are able to bear the burden of administration of justice and who are well versed in the sacred laws, rules of prudence, who are noble and impartial towards friends and foes”.
Recently David Pannick in his book—‘Judges’ concludes:
“The qualities desired of a judge can be simply stated:’that he be a good judge and that he be thought to be so’…Such credentials are not easily acquired. The judge needs to have ‘the strength to put an end to injustice’ and ‘the faculties that are demanded of the historian and the philosopher and the prophet’…Because the judiciary has a central role in the government of society, we should (in the words of Justice Oliver Wendell Holmes) ‘wash…with cynical acid’ this aspect of public life”.The stated principles on the independence of the judiciary are meant to cover these aspects. The appointment process and the mechanism for ensuring judicial independence with judicial accountability at all levels are significant to thwart the impending threats to judicial independence. Sincere commitment and resolve of the entire Bar (including the Bench) towards this end is the need of the hour. This would be our true homage to the memory of S.Govind Swaminadhan, a doyen of the Madras Bar who practiced these norms and has been a role model for the legal profession!
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- Restore people’s faith (indialawyers.wordpress.com)
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- Picking their own men (indialawyers.wordpress.com)
- Corruption in judiciary: Time for action (indialawyers.wordpress.com)
- You: CJ praises lawyers’ role for rule of law (nation.com.pk)
- High-level panel pledges judicial independence (thehimalayantimes.com)
- Don’t politicise judicial officers’ appointment – Oshiomhole (vanguardngr.com)