LAW RESOURCE INDIA

I cried when SC judges bowed during Emergency, says Sorabjee

Posted in CONSTITUTION, COURTS, DEMOCRACY, FUNDAMENTAL RIGHTS, JUDICIARY, JUSTICE, LIBERTY AND JUSTICE by NNLRJ INDIA on February 15, 2010

Maneesh Chhibber in THE INDIAN EXPRESS

Over 34 years after the country’s highest court found itself in the middle of a controversy after it ‘succumbed’ to political pressure while deciding the now famous Habeas Corpus case, senior Supreme Court lawyer Soli Sorabjee said most lawyers never expected the judges to wilt like they did then.

JUSTICE H R KHANNA

JUSTICE H R KHANNA

“I never cry or show my emotions after losing a case. But, that day, sitting with Nani Palkhivala in Mumbai discussing the case, I cried. While then Chief Justice of India A N Ray and Justice M H Beg were generally expected to be pro-government, we were sure that Justices YV Chandrachud and P N Bhagawati would uphold the Constitution. Nobody was sure which way Justice H R Khanna would go. But, Chandrachud and Bhagawati sold their souls. Only Khanna stood up to the Government,” a highly emotional Sorabjee said delivering the annual Justice H R Khanna memorial lecture on the topic of ‘Judicial Independence: Myth or Reality’ on Sunday.

Saying that Khanna’s dissent in the case was the true test of judicial independence, Sorabjee said courage as shown by Khanna while dealing with the case is what is required of a judge. “He didn’t care about the consequences. He decided the case according to his conscience,” he said.

However, the former Attorney General also cautioned that judicial independence has to go hand in hand with judicial accountability. “Both are two sides of the same coin. Judicial independence must not be confused with proclivity to strike down legislation or executive action in a cavalier fashion. That is now judicial independence but judicial showmanship,” he added. He also said judicial independence could not mean independence from accountability.

Talking about instances of corruption in higher judiciary, Sorabjee said there should be “zero tolerance” for corruption in judiciary. “We need a law to check it (corruption). But, while probing cases of corruption against judges, there can be no involvement of the executive or lawyers. It would have to be by judges, both past and present. The only requirement should be such judges should enjoy confidence of the public,” he said.

Sorabjee also observed that there are many ways in which the executive gets back at independent judges.

“It is highly undesirable that in many cases the government sounds out the judges about their post-retirement jobs, most of which carry the same, if not better, perks much before they retire. The public perception is against such things and can’t be ignored,” he added.

Earlier, H K Dua, editor-in-chief of The Tribune, recalled how Khanna stood up to government during Emergency. “I was then working with The Indian Express which received special (mis) treatment from the government. But, judges like Justice Khanna showed that not everything was lost,” he recalled.

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