Who Will Judge the Judges? argues Fali S Nariman in his new book The
Posted by: "Krishnaraj Rao" sahasipadyatri@gmail.com sahasipadyatri
Sat Feb 8, 2014 10:29 pm
The profession of law (that includes lawyers and judges) is one in which
there is still very little transparency. When enacted laws are abstruse and
unclear, we lawyers do little or nothing to educate the public about them.
Our clients are, quite deliberately, left ignorant of the 'mumbojumbo' that
we utter in courts; the vast majority of people can neither understand the
purpose or tenor of prolix legal proceedings nor can they comprehend the
drift of judgments (often, of enormous length) handed down from the bench.
Under our Constitution, the higher judiciary enjoys pride of
place-well-deserved no doubt-but its inevitable consequence is to put
justices of the high courts and of the Supreme Court on the highest
pedestal: on cloud nine.
How are judges appointed? How are they selected and recommended? What are
their shortcomings and how are they remedied within the judicial
fraternity? And why are judgments sometimes not delivered at all or (more
often) interminably delayed? Before the advent of the RTI (and even
thereafter), such impertinent queries were met with responses such as: 'It
is none of your business to ask us questions' and 'we (the judges) know
what is best for the system'. Similar attitudes have been exhibited by the
higher judiciary in other parts of the world.
********
Strange are the ways of providence; sometimes, stranger are the ways of
courts! There are no rules and no precise circumstances as to when it can
be said that the administration of justice is brought into 'contempt'.
Judgments of courts are strewn with pious platitudes that give little
guidance to newsmen (and newswomen), editors or commentators. This part of
the law of contempt-although necessary in extreme cases-constitutes a
standing threat to a cherished Fundamental Right: the freedom of
expression. It leaves too much to the predilections of the individual judge
(or judges). Even the decisions rendered in contempt cases sometimes give
the uncanny feeling that the status of the person who 'scandalizes' the
court may well have influenced the ultimate result. In P. N. Duda vs P.
Shiv Shankar (AIR 1988, SC 1208 at 1213), a cabinet minister of the
Government of India was exonerated though he had compared the judges of the
Supreme Court to 'anti-social elements, foreign exchange violators, bride
burners and a whole horde of reactionaries who have found their haven in
the Supreme Court'. The court said that the speech of the minister had to
be read 'in its proper perspective' and, when so read, it did not bring the
administration of justice into disrepute!! But in a later case (also
reported)- Mohd. Zahir Khan vs Vijai Singh and Others (AIR 1992, SC 642)-an
impetuous (but insignificant) litigant, merely said in a loud voice in
court: 'Either I am anti-national or the judges are anti-national.' He was
immediately cited for contempt, pronounced guilty and sentenced to undergo
simple imprisonment for one month!
In India the higher judiciary has inherent (and almost unbridled) powers of
contempt-even beyond laws enacted by Parliament. And for that reason, the
media and the whole lot of information-seeking agencies- not sure of how
the contempt law will be interpreted- are tight-lipped. No one dares come
out with what they believe to be the FACTS (in any matter pertaining to
judges or the administration of justice) even though the law (amending the
Contempt of Courts Act 1971) now permits 'justification by truth' as a
valid defence.
But let a complaint be made even by a responsible individual against a
reputedly corrupt judge in the higher judiciary, and no newspaper will
publish it! Give the newspaper as much proof or evidence as you will- it
will still not publish anything! Regrettably-with a few notable
exceptions-the fraternity of justices in the higher judiciary in India tend
to stick together when anyone speaks of any wrongdoing about one of
them-alas, even when some of its members themselves entertain a shrewd
suspicion of some wrongdoing! There pervades, in the higher echelons of the
judiciary, what I would characterize as a spirit of trade unionism. Trade
unionism amongst lawyers is different. It is also a closed shop but there
are many leaks! One instance of wrongdoing about a colleague at the Bar and
a dozen other 'lawyer-friends' will spread the word about more such
wrongdoings! No, the trade unionism of lawyers is just no match to the
trade unionism of judges. The latter close their ranks when one of their
own is involved.
In 2003, there were unsubstantiated reports about three sitting judges in
one of the high courts in South India being found in some shady joint
outside Bangalore city. Their reported shenanigans (or 'secret activities')
were publicized, but met with instant denials. An independent inquiry into
the alleged incident was not immediately ordered by the then chief justice
of Karnataka. Instead, contempt proceedings were promptly initiated by the
high court against the concerned newspapers that had reported the alleged
incident. It was only later- much later-that the chief justice of India set
up a highpowered committee consisting of the chief justices of three high
courts in the country (Bombay, Madhya Pradesh and Kerala) to look into the
incident and report back to him.
[image: Inline image 1]
When this Inquiry Committee of Chief Justices took up its task, contempt
notices had been already issued by the Karnataka High Court to
representatives of the media (editors, printers and publishers), so that
the latter were not quite sure whether, if they revealed to the committee,
what they knew, or what they had heard, it may not be also used as evidence
against them as contemnors. By that time the so-called 'scandal' had been
blown out of all proportion-not by fact, but almost entirely by rumour.
Everyone-almost everyone- seemed to know (or suspect) what had happened,
but no one would tell! The leading national newspapers having been cited
(by the High Court of Karnataka) in proceedings for contempt of court, they
approached the Supreme Court of India for ultimate redress. I was appointed
amicus by the court (to assist it to arrive at a decision), and a wise
chief justice of India (V. N. Khare)- wise beyond his years-after hearing
what I had to say passed an order staying all contempt proceedings
initiated by the High Court of Karnataka. They remain stayed till this day!
Meanwhile, the Inquiry Committee of Chief Justices proceeded with a very
detailed investigation and its findings were reported to the chief justice
of India.
Unfortunately, these findings have never been published or publicized. In
my view, this was a mistake, because if the finding of the committee was
that there was no basis for any of the allegations initially made, the
person/persons found responsible for making them should have been dealt
with severely; this was the only way to clear the fair name of the higher
judiciary in Karnataka. 'Sunlight is the best disinfectant', as a former
chief justice of India, Justice M.N. Venkatachaliah, always liked to say!
But in the absence of a full public disclosure of the report, busybodies
assumed the worse, on the facile (and often erroneous) assumption that
'there can be no smoke without fire'! It was definitely in the larger
interests of propriety and justice that the report of the committee should
have been promptly made public.
The role of the media in India in highlighting judicial corruption in the
higher judiciary (or some other wrongdoing of one of its members) has drawn
a blank. We have to try different measures to root out 'judicial
corruption' (or rather, root out manifest perceptions of it); first of all
we must try to shame the (few) wrongdoers.
How do we do this? It is the lawyers who have to do it, not with a view to
exposing 'skeletons in the cupboard', but for the good of the institution
(the judiciary) and for the cleansing effect that transparency always has.
But then, this is, at least for now, foreclosed, because we have to live
with that (regrettable) decision of our own apex court in C. Ravichandran
Iyer vs A. M. Bhattacharjee (1995), popularly known as Bhattacharjee's
case. A. M. Bhattacharjee was chief justice of the Bombay High Court (from
April 1994 to April 1995), and allegations about his 'wrongdoings' (along
with those of one other high court judge in Bombay at the time) became (as
the expression goes) 'the talk of the town'.
The Bombay Bar Association (under its then president, senior advocate I. M.
Chagla) took up the matter, and a resolution was passed by the association
requesting Chief Justice Bhattacharjee to demit his office as a judge in
the interest of the institution. Bhattacharjee resisted. In court
proceedings initiated thereafter, a bench of two judges of the Supreme
Court (Justices K. Ramaswamy and B. L. Hansaria) said (in Bhattacharjee's
case) that even associations of lawyers could not on their own take up
matters and pass such resolutions with regard to allegations of corruption
against sitting judges.
The bench also said that the associations must first take up the matter
with the chief justice of the high court and, if there is no redress, then
with the chief justice of India and await a response for a 'reasonable
period'. But what constitutes a 'reasonable period'? And what if the chief
justice of India failed to respond? The bench of two judges gave no answer.
In my view, the judgment in Bhattacharjee is a dampener to transparency in
cases of 'perceived judicial corruption' but it remains declared law and
operates-with 'chilling effect' (as the popular American expression goes).
In Bhattacharjee's case, the judgment of the Supreme Court noted (with
approval) the opinion of Harry T. Edwards, chief judge of the US Court of
Appeals of the District of Columbia. He was at one time chairman of what is
known as the Judicial Council in the United States, a statutory body set up
by the US Congress for disciplining federal judges (who are appointed for
life). Many years ago, when a team of Indian judges and lawyers (under the
aegis of the Indo-US Legal Forum) had been invited to Washington D.C., I
had visited Harry Edwards in his court.
It was he who told me how the Judicial Council in the USA (of which he was
one of the twelve members) dealt with all manner of charges against all
manner of judges (including his own colleagues, i.e., federal judges). When
litigants or lawyers there made complaints against sitting judges, the
complaints were investigated and the result of the investigation was
pronounced upon in open court. He handed me a judgment of his own with
respect to a colleague (whom I later saw sitting on the bench with him)
where a litigant had made certain allegations against that judge about his
conduct in a case that had been previously heard. The allegations were
investigated and dealt with by a speaking order in a judgment that was
printed and widely circulated. There were no hard feelings amongst the
judges. The in-house procedure in the United States is both open and
transparent.
[image: Inline image 2]
It was in Bhattacharjee's case that the bench of two judges quoted from an
article written by Chief Judge Harry T. Edwards:
Ideal of judicial independence is not compromised when judges are monitored
and regulated by their own peers. This limited system of judicial
self-regulation presents no constitutional dilemma as long as the removal
power remains with Congress. I argue that the judiciary alone should
monitor this bad behavior through a system of self-regulation. True. But we
in India have so far lacked a system of transparent 'judicial
self-regulation'. The concluding paragraph in the judgment in
Bhattacharjee's case has told us why:
It would thus be seen that [the] yawning gap between proved misbehaviour
and bad conduct inconsistent with the high office on the part of a
non-cooperating Judge / Chief Justice of a High Court could be disciplined
by self-regulation through in-house procedure. This in-house procedure
would fill in the constitutional gap and would yield salutary effect.
Unfortunately, recourse to this procedure was not taken in the case at
hand, may be, because of absence of legal sanction to such a procedure.
Article reproduced from:
http://indiatoday.intoday.in/story/fali-s-nariman-reviews-the-state-of-the-nation/1/269094.html
[Non-text portions of this message have been removed]
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Posted By Blogger to what they said about Indian Judiciary at 2/09/2014 09:39:00 PM
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