"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Wednesday, December 22, 2010

Can there be a partially honest judiciary?

This is a reproduction of a statement issued by Mr. Bijo Francis on Indian Judiciary in the website of AHRC.

The simmering debate between three senior judges in India, involving the suspect in a criminal case and a former Union Minister from Tamilnadu state, Mr. A. Raja, and his alleged attempt to influence the court to obtain bail for the suspect with the assistance of the former Chairperson of the Tamilnadu and Pondicherry Bar Council, Mr. R. K. Chandramohan, has once again brought the lingering question of judicial independence and accountability in the country into the forefront of national debates. Of the three judges involved in the debate, one is a sitting judge of the Supreme Court, Justice H. L. Gokhale, the other is the former Chief Justice of India who is now the current Chairperson of the National Human Rights Commission and the third judge is a former judge of the Madras High Court, Justice Regupathi. Chandramohan, the lawyer involved in the case has been temporarily suspended from practice and from the powerful post he occupied at the Bar Council, as it's Chairperson.


Four central questions that should be addressed and clarified in this issue are:


(1) Why did the courts -- the Madras High Court, when one of its judges were approached in his chamber, by none other than the Chairperson of the State Bar Council intervening criminally in the judicial process, and the Supreme Court of India, when its Chief Justice was addressed by the Chief Justice of Madras High Court at the request of the judge who was approached by the lawyer -- fail to immediately take actions against the bail petitioner, the lawyer and the minister?


(2) What prevented Justice Regupathi from initiating criminal proceedings against the lawyer, the accused and the minister when they tried to interfere with the court proceedings? The judge was empowered to do so. The courts in India have done it on several occasions in the past. The Indian courts have even misused the contempt of court proceedings often when the judges faced public criticism. Most of these cases involved, in lay language, 'small fries'. But in this case, which involved a powerful lawyer and a minister in the Union Cabinet, the judge appeared to be seeking consensus from his senior colleagues. One cannot be blamed if it is said that in cases involving powerful persons the court hesitates to act.


(3) What prompted the minister or his lawyer to engage in this otherwise audacious attempt of illegally approaching a High Court Judge to decide a case in favour of a particular person? Is it a practice that in this instance got exposed? It is difficult to believe that any lawyer worthy of his salt will dare to do such a task, risking his career. In this case, the lawyer involved is not a novice. He is the Chairperson of the State Bar Council.


(4) Why did not the State Bar Council take action when the judge himself first exposed the case, by his remarks in open court? The Bar Council is a statutory body empowered to take disciplinary actions against lawyers for misconduct. How did such a person become the Chairperson of the Bar Council? Is this the standard of the Bar Council? Now that the case has been exposed, what action has been taken to find the truth behind the matter other than the suspension of the lawyer from the Bar? Why no enquiry is initiated into the case?


Indeed these are some of the many questions that anyone could ask, coming to know the details about the case. Unfortunately, it is a sad irony in India that none in the country would dare to ask such questions, since that could amount to contempt, the way this miserably misused law is practiced in India.


The case not only casts shadow upon a former Union Minister or a retired Chief Justice or other judges in the country. The incident is one more indicator to the fact that it is time to seriously consider looking into the state of affairs within the Indian justice system. The country's judges must know that accountability, transparency and honesty are virtues that they can afford to insist upon the rest of the world only if they practice it among themselves.


The judiciary, irrespective of the geopolitical and legislative environment in which it works, has an inherent problem. It is the very notion of justice. In that, there cannot be a 'partially honest' judiciary. The nature of the institution demands absoluteness. It can be only either completely open, transparent and honest or absolutely dishonest. Justice cannot be 80 percent honest.


Those judges in India, who claim that 20 percent of their colleagues are dishonest, also have the responsibility to disclose the names and details of those judges who are corrupt, so that the litigants and lawyers can avoid such judges. There can never be percentages of honesty and dishonesty awarded to justice. Sadly, in India, it is so. Even worse is the fact that many in the country feel contented about the so-called 80 percent honest judges and thus about the judiciary as an institution. Any comments against it, other than from judges of the Supreme Court, warrants immediate contempt of court action.


This leads to the following additional questions. Can India continue to afford to have a judiciary that house judges having their names tainted with corruption? How long can the Supreme Court afford to have judges who will be transferred to High Courts in Sikkim or Guwahati, whenever their names and credential starts appearing in every place where a judge or his name should not be mentioned? How long can the Indian judiciary expect the people in Assam, Sikkim and Manipur to face the burden of having some of the tainted names in the country's justice system?


What would have been the approach of the higher judiciary, had the judges involved are from the lower courts, like a Magistrate or a Munsiff? Would the Supreme Court or the High Court allow a retired lower court judge to make such remarks like those made by the senior judges in this case? If not, what additional rights do these senior judges have than their colleagues in the lower courts?


Last but not least, how long can India continue to have this mess, what Indians today call as their judiciary?

No comments: