LAW RESOURCE INDIA

The NHRC chief must resign

Posted in CORRUPTION, COURTS, SUPREME COURT by NNLRJ INDIA on January 3, 2011

Supreme Court of India

BY RAJEEV DHAWAN IN MAIL TODAY

THE YEAR 2010 ended with a damning allegation about the former Chief Justice ( CJI) K. G. Balakrishnan’s son- inlaw amassing a small fortune during a period approximating the former CJ’s tenure.

Was this accidental good luck? Perverse? CJI was colloquially known as KGB. The venerable Justice Krishna Iyer, has asked for ( i) an inquiry and ( ii) the removal of KGB from the National Human Rights Commission ( NHRC). Under section 5 of the Protection of Human Rights Acts, ( POHRA) through which the NHRC is constituted, the only way of removing of the chairman ( under section 5) is for the President to make a reference to the Supreme Court which has to decide if he is guilty of “ proved misbehaviour or incapacity”.

Removal

Of course, a simple removal without reference to the Supreme Court is possible if he becomes insolvent, takes a paid job while in office, has infirmity of mind and body, mental imbalance or conviction of an offense constituting moral turpitude.

Unfortunately, Justice Krishna Iyer may not be technically right. KGB must be found wanting for what he did in the NHRC, not for allegations of what he did as a high court or Supreme Court judge.

But Justice Krishna Iyer’s exhortation should not go in vain. It requires that KGB suspends himself or resigns from public office till these family embarrassments are resolved. What is not permissible to a judge is not permissible to the chairman of NHRC, too.

KGB has lived a charmed life. As a Munsif or district judge, he was not on track for appointment to the high court. But he had friends in high places ( including a President of India). He resigned from lower judgeship, started an indifferent practice and was unmeritoriously made high court judge. The appointment was calculated so that he would rise in seniority and, one day, become CJI. In other words, his very elevation to the pivotal launching pad of a high court judge was shrouded with stories. Lawyers and judges made of a different mould of integrity might have resisted such a meteoric rise to power. But not KGB. Some doubt has been expressed if KGB wrote his more famous judgments. Only his law clerks can answer this question honestly. KGB may not. There have been times where I have wondered about whether some of his orders were above query. This feeling may have been shared by other lawyers, too.

True, KGB was the first Dalit CJI and his father was a matriculate and mother a seventh standard student. He suffered disadvantage if not discrimination. But when it comes to judicial rectitude, the standards of mind, body and spirit are to be applied strictly. KGB is not the best of NHRC chairmen.

The standards were set by Justices Venkatachaliah and Verma. KGB’s eligibility in this regard is not his human rights record or experience, but because as an ex- CJI he is entitled to the job at least as a sinecure post. There were no other CJI’s around. He got the job.

KGB leaves behind an awkward legacy. He did not exercise a CJI’s moral authority over judicial lapses even though the Dinakaran and Sen impeachment were triggered in his tenure.

His successor, CJI Kapadia also emerged from humble beginnings but is known for his integrity. When Prashant Bhushan attacked his conduct in the Vedanta case, the word corruption to describe his behaviour was wrongly used.

CJI Kapadia is far from being corrupt or corruptible. But he has a gigantic problem on his hand. His own Supreme Court judges are getting edgy. Justice Katju’s outburst about ‘ uncle judge’ found one source identifying nine judges in the Allahabad High Court placed in this unenviable unenviable position. Just a few weeks earlier, CJI Kapadia transferred eleven high court judges in the public interest. This has been called the biggest “ transfershake- up” since 1993. The term ‘ public interest is a euphemism. One judge of the Bombay High Court, Justice R. S Mohite, preferred to resign rather than being transferred to Patna.

But, transfer of high court judges is not a redeeming solution. The lawyers of Sikkim protested tainted judges being transferred to their high court. To say that local links alone make a judge corrupt is not correct. Corruption travels with and catches up with the judge — according to some — even to the Supreme Court in select cases.

Standards

Proof rather than suspicion is needed for this. But corruption not only penalises the court system, but makes a citizen distrust judicial independence as a virtue.

This sometimes leads to money compensation — as in the case of the Punjab judge, Justice Nirmal Yadav which got into the wrong hands. But, it also leads to a scene of unfathomable suspicions.

Even in the Supreme Court, certain lawyers are targeted to appear before certain judges. This is not the fault of the judge. I can recall a Madras judge praising me in one matter. When I left the court, I was besieged with briefs in that court in the next week. I did not appear in that court thereafter. In one instance, many years ago, an Allahabad judge was told to ask a particular lawyer not to appear before him. A lawyer was often briefed before an Orissa judge with significant success. We cannot blame the judge, who may know nothing about all this. Even today, it is said that some lawyers get favourable orders from certain judges.

Good lawyers may inspire confidence in a judge. That is unexceptional. But, it will becomes justice when the lawyer and judge shopping becomes a trend. Higher standards are expected from Caeser’s wife and judges, even if totally innocent.

Recommendations

What must be done this year are two things. The first is to pass the Constitution ( 114th Amendment) Bill 2010 so that a high court judge’s retiring age is also 65 years in line with Supreme Court judges.

This equalising is long due. The competition to get to the Supreme Court must stop because it is responsible for far too much nepotism. Some judges, especially chief justices of high courts, may prefer to decline a Supreme Court appointment.

But it is time that merit and not seniority and favouritism be the basis of higher judiciary appointments.

The second is to introduce and pass the Judges Standard and Accountability Bill, 2010 to replace the old impeachment procedure of 1968. This bill seeks to create a complaints mechanism which will go to an oversight committee, which will vet and pronounce on the complaint. This proposal, which cleared cabinet in October 2010, is enough. A fine- tuned constitutional amendment is necessary.

Sometimes the bad things in a system have to be profiled. There are too many embarrassing episodes. In July 2010, the CJI’s chargesheet into the Ghaziabad judicial expenses scam includes three former high court judges. We remain as helpless as we are astounded.

But there is spine, creativity, verve and talent in India’s judicial system — not to mention the fancy footwork of the Delhi High Court’s Lok Adalat clearing one lakh minor pending cases in one day in 2010. Post- independence India has produced a remarkable court- created jurisprudence. There is still a huge confidence in judges as the custodians of the rule of law. But even the best of boats will find it difficult to navigate muddy waters.

2011 is a significant year for reassessment and change.

The writer is a Supreme Court lawyer

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One Response

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  1. vijay said, on January 3, 2011 at 12:04

    Dear rajiv,

    I understand that the judges are made out of the advocates.
    That be so don’t you think that We have limited /no choice but to chose from largely the rotten/substandard lot. Your entire article misses this point entirely. WHAT WE NEED IS ADVOCATE’S STANDARD & ACCOUNTABILITY BILL as the first necessary step.


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