Monday, February 27, 2012

Murmuring Judges

Murmuring Judges
Foreword: 'Murmuring Judges' is a legal expression meaning "speaking ill of the judiciary". I have taken this expression from the name of a David Hare play. People have rather forbidding ideas about the character and qualities of judicial officers. But 45 years of my experience with these exalted human beings has reduced my awe and high regards for many of them. there are, of course, great wo/men in judicial service for whom I still have great respect. the others make me angry and the piece below is the result of the pent-up fury.

Well, I grant it to the judges of the Supreme Court of India. They are infallible indeed. But this infallibility thing reminds me of a CJ who behaved as if the statement “we are infallible because we happen to be final” was his own and allowed it to be quoted often as his when I HAD READ IT MUCH EARLIER AND THE AUTHOR WAS THE CHIEF JUSTICE OF THE US SUPREME COURT, JUSTICE ROBERT JACKSON, who wrote that “We are not final because we are infallible; but we are infallible because we are final.” published in the US in an annual volume of Great Speeches, and available in the American Library in Chennai. It is so silly!

The two expressions - final and infallible - have grave connotations in the context of the following cases I take up as examples. In 1984, in a lightning move, the Supreme Court of India took over all cases against Union Carbide and ruled that a payment of $470 million will be the full and final settlement of Civil claims, also deciding to drop all criminal charges against the US transnational. It was in violation of the core principle of criminal justice - that a person charged with a criminal deed cannot pay his way out – that the apex Court acted. Later, when a review petition challenged this ruling, the Court retracted and reinstated the criminal charges!

It was in the early 1990s, I think, the Chief Justice of the Supreme Court of India  Mr.M.N.Venkatachellaiah recalled an order passed by him and Mr.Justice S.Mohan earlier, rejecting a Special Leave Petition against Bihar High Court’s order denying admission for petitioners to a nursing course in a Medical College. The HC had rejected the plea for admission saying the Madhyama Degree they had obtained from Hindi Sahitya Sammelan was not requisite qualification. However, after hearing the SLP again,  the Judges passed an interim order to the authorities concerned to consider the petitioners’ eligibility. I wondered then whether this step “enhanced the credibility of the Supreme Court”!

My greatest worry with respect to our justice-delivery system begins with one single judgement of the Supreme Court of India. The Mandal Judgement. I am tearing my hair over its consequences to this day. Reservations, conceived as a form of affirmative action designed to improve the well being of perceived backward communities like the Scheduled Tribes (ST) and Schedules Castes (SC) a certain percentage seats in educational institutions and also government jobs, and even in legislatures. It was originally meant for 10 years and like all privileges, over a period of enjoyment of the benefits of these reservations, it created an entitlement psychology. Reservations were extended and now several decades after Independence, year after year, more and more communities are being added into the list of the backward. Affirmative action has become a kind of positive discrimination to others, limiting their right to education and jobs. It was in this context that the Mandal Commission Report, was accepted by VP Singh government at the Centre basically to break the “hindu vote-bank” of the BJP, dividing the Hindu electorates into warring camps of OBCs and the rest. (The author of the Mandal Report recommending reservation for the OBC, Bindeswari Prasad Mandal the scion of 5000 acre land lord was the only student who had his personal servants in the Patna University College Hostel, eminent historian RC Sharma, a contemporary, remembered. Mandal was a Yadav from Madhepura (Rome hai Pope ka, Madhepura hai, Gope ka -cowerds or yadavs- ! The idea of rich Yadavs representing the Indian underclass starts from here)

The Reservations to the OBCs irrespective of their financial status was contested in the Supreme Court of India. Late Nani Palkhiwala, among others, opposed the Mandal Reservation, but he lost. Nani Palkhiwala commented later that “the future historians of the Indian republic will regard 1992 as one of the saddest years in the history of our jurisprudence. This is the year in which the Supreme Court, by a majority continued, virtually in perpetuity, the scourge of casteism”. The perverse majority of the Bench while rejecting Palkhiwal’s pleading for economic reservation, went on to insist was caste was a more deserving criteria for backwardness that economic status. But ironically, the SC excluded the “CREAMY LAYER” from the ambit of the reservations! Didn’t that mean their Lordships accepted economic status as the important criterion for deserving the reservations? Did their Lordships think of the country being denied of the services of capable professionals? How could they expect officials and professionals selected on criteria other than qualifications and capability to perform at par with their peers?
I remember two serving judges of the Supreme Court of India, Thakker and Natarajan, went into the appointment of a foreign detective agency by the then Union Finance Minister, Viswanath Pratap Singh. V.P.Singh fell out with the PM, Rajiv Gandhi who believed the FM was aiming his scalp. He had to step down and Rajiv compared his once trusted lieutenant to the Jaichands and Mir Jaffers of history, traitors. The PM obviously believed that the employment of the US detective agency, Fairfax to investigate illegal foreign money holdings of Indians was in fact a clever ruse investigate the suspected illegal funds belonging to the ruling Nehrus. The Honourable Judges opined that the employment of such an agency was highly irregular, because it was not discussed and debated in the Cabinet (!). The judges knew that the moving finger would move to the PM as the investigation proceeded, and made a startling statement - and I remember roaring in laughter as I read those gems. There is this situation in ‘Yes Prime Minister’ the hilarious serial BBC had broadcast years back. Jim Hacker, the PM, learns that the former Prime Minister was about to publish his memoirs in which some uncharitable references have been made about the present incumbent to the august office. Hacker wanted the publication stopped somehow. The other members of the Cabinet and senior bureaucrats tell him Britain was a democracy and the only option left to him was to file a case for libel if it was warranted. At this juncture Hacker triumphantly declares he has found a way to stop the publication. “It cannot in the national interest to publish something that undermines the confidence I the leader of a nation” This is precisely what the two eminent judges, M.P.Thakker and S.Natarajan wrote to justify abandoning the investigation by Fairfax Group Inc. Isn’t it interesting that the Honourable judges averred that the investigation into the alleged illegal financial holdings of Indian in tax havens abroad would somehow endanger the reputation of the politico-administrative leadership of India and thereby undermine the stability of the Nation, almost quoting a hilarious piece of dialogue in a TV serial? But the text isn't funny. Please read the most convoluted prose in English language that comes from the sort of committed judiciary a PM of India spoke of “Leaders of the world could not conduct their affairs vis-a-vis leaders under a cloud with the required degree of trust and confidence which are essential in arriving at a mutually advantageous long-term relationship. The cries of such a handicapped country with such a handicapped leadership would become weak or inaudible, or would not carry the same weight., or inspire the same faith....It is therefore a specious argument that destabilizing the leader of the party or leadership in charge of administration at the given point of time will not result in destabilizing the country. Such a situation could certainly result in great detriment to national interest and national security.” That was from the report of Justices Thakker and Natarajan!

In the Jain Havala case in which LK Advani was implicated, the Supreme Court passed an order that the investigation would be monitored by the Court, but made the CBI Director personally responsible for the probe.  In the Bihar Rs.950 crore fodder scam case, in which the main suspect was Bihar Janta Dal chief and Chief Minister Lalu Prasad Yadav whose party was leading a coalition government at the Centre, the Patna High Court found the Director CBI “interfering and meddling” in the probe as his junior Joint Director (East Zone) informed the Court. The HC passed a restraint order on the CBI chief. But the Supreme Court found time to intervene and clipped the wings of the HC asking the political appointee, State Attorney General to supervise the investigation! Lalu was never threatened by the prosecution seriously and lives like a king Emperor in Bihar though people denied him political power thereafter.

Warped political calculations by Congress and other ‘secular’ politicians could turn saboteurs, spies and terrorists into just citizens belonging to minorities and “weaker sections of the society”; but how do you rate the ruling by a Chief Justice of the Supreme Court of India, Justice Ahmadi that a TADA detinue may be given a chance to prove that the weapons found in his possession were not meant for terrorist activities? His Lordship was not mentioning kitchen knives, but AK 56 and AK 47. Why would a law-abiding citizen keep such assault weapons when the law prohibits ownership of even small pistols unless you have a licence to keep one!

In June 1993 Swiss Law Ministry officials disclosed to the media that Geneva Central Court had ordered release of details of 5 Swiss bank accounts into which AB Bofors had made huge payments, and the account holders had 30 days to go in appeal. They were  the Hinduja brothers GP,SP, and Prakash, Win Chaddha, Octavio Qttrocchi, Jubilee Finance and Sweska Inc. Quattrocchi fled India in July 1993. The Hindujas, worthy of friendship of the ruling elite, in their appeal told the Swiss Court that their parent country was known for “human rights violations” in Kashmir and Punjab and they feared they would never get a “fair trial” in India. Though the Swiss court dismissed the appeal.the Indian courts were more than fair to them: they were let off. The CBI, the Delhi High Court, the Government of India, all jointly and severally did everything possible to wipe out the Bofors scam which was so well documented that only a banana republic would bury the case.

We hear about judicial activism. What is it? I have understood it as judges seeking toget justice done. It is different from Juristic activism which as I understand entails in the judicial legislation of ideas, which are termed as “case laws”. There can be a third variety which depends on the judges’ whims, fancies and strange logic and judges going out of their way to invent clever quasi-judicial expressions to acquit alleged wrong-doers. I was aghast when a magistrate in Thiruvananthapuram dismissed a petition against defamation filed by a Sanyasin with a simple logic that having renounced everything, a Sanyasin has no right to fame and hence no defamation is possible, and hence no culpability can be established. The ruling of Justice Vishnu Sahai of the Bombay High court in a case of rash driving leading to the death of a person by actor Tanuja is very interesting. A lower court fined her Rs.500 and 6 months’ jail in the case. The HC let her off with a fine Rs.1500 waiving the imprisonment. The judge’s observation was: “after all, by making the appellant serve a sentence of 6 moths what would the family of the deceased gain…In my view, a very equitable, and I dare say, a sensible approach in such cases should be to impose a substantial fine in view of the unexpired period of the jail sentence of the appellant….” And the “substantial” amount was Rs.1500? Oh, yes, three times 500. I remember reading somewhere that if you want to kill someone, please do not use weapons. You will get up to 14 years in jail or even be hanged. Go kill that person hitting him by your car. It is a simple bailable offence, and you may get away with a fine.  
I can never forget Bombay HC reducing to 10 years a life-sentence awarded to a 40-year old Bandra slum-dweller convicted of raping his own 8-year old daughter in 1992 mentioning poverty and lack of education as “mitigating circumstances”. Such thoughts whether they come from ordinary mortals or honourable judges, amount to moral and logical absurdity, if you ask me.

Parliamentary privilege should concern about the conduct of the person(s) as a member of the Parliament in matters arising out of  the business transacted in the legislature.The JMM bribery case was that in July 1993, when the minority government of Mr.P.V.Narasinha Rao was saved by bribing some Members belonging to the opposition parties were bribed. Then the counsel for P.V.Narasimha Rao, R.K.Anand argued that the JMM MPs who were paid to vote for the Rao Government (July 1993), could not be prosecuted under the Prevention of Corruption Act as a Member of Parliament does not take oath for holding any office, but to take a seat in the Parliament! The case was an open-and-shut one when evidence surface easily. All avenues of escape were closed to the bribe givers and takers with the IT Department informing the Court that the moneys deposited by the JMM MPs in their personal accounts around July 1993 were not Party funds as their counsel argued, but their income from undisclosed sources. JMM MPs produced receipt books printed in 1995 to the Court! I remember very well that P.N.Lekhi had to remind the Delhi High Court that the immunity provided for Members of Parliament was only a privilege to help the House perform its function. The Income Tax department complained to the Delhi High Court at one stage that the CBI was not co-operating with it, but to no avail. The HC let the culprits go scot free. On appeal, the SC gave a strange ruling bringing in Article 105(2) that provided immunity to MPs for bribes received in the course of exercising their legislative duties. Article 105(2) of our Constitution says: “No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.” The SC ruled that the JMM bribe-takers had committed no offense as the bribe had a connection with the speech or vote of the MPs in Parliament and hence comes under article 105 (2) which gives immunity to the Mps for anything done that has a nexus to his speech or vote in Parliament! Yes, the bribe-takers had breached the Parliament's privilege and are guilty of it's contempt and PV agreed, because only Parliament can take action against them! The provision is obviously aimed only at ensuring MPs’ 'freedom of speech' and 'right to vote' and making them immune to prosecution for anything said or any vote given in the House. The apext Court ignores “the irresistible probabilities of the case as well. The ruling appears to subvert the constitutional process by providing shelter to those engaging in bribery or corruption for their actions in Parliament. Didn’t another Bench of the Supreme Court look at it differently when it found those who took money for raising some questions in parliament had grievously erred? Taking bribe to vote in Parliament gets immunity and taking bribes for raising queries in Parliament does not come under the purview of immunity? Well, sure, they are infallible only because they are final.

There was this Honourable judge in the Supreme Court of India who had many cases of financial impropriety slapped on him. An inquiry committee of brother judges found Justice Ramaswamy guilty of 11 out of 14 charges, and said in conclusion: “Justice Ramaswamy’s conduct, that is, his several acts of omission and commission reflected in our findings on charges 1, 2,3, 7, 9, 11, 12 and 14, taken together, and in our findings on charges 1, 2, and 3 severally, discloses wilful and gross misuse of office, purposeful and persistent negligence in discharge of duties, and habitual extravagance at the cost of public Exchequer, moral turpitude by using public funds for private purposes, in diverse ways and in reckless disregard of statutory rules  and brings disrepute to the high judicial office and dishonour to the institution of judiciary and undermine the faith and confidence in the administration of justice”...”The acts therefore constitute ‘misbehaviour’ within the meaning of Article 124(4) of the Constitution of India”. This was the justification of impeachment proposal.

An impeachment motion required not less than two third majority of the total number of members present in both houses of the Parliament and an absolute majority of its total membership thus failed to pass.  It was placed in the parliament for debate and voting on 10 May 1993. Of 401 members present in the Parliament that day, there were 196 votes for impeachment and no votes against and 205 abstentions by ruling Congress and its allies. The motion failed. The judge played the Dalit card and the Congress Party, ever anxious to appease on such grounds, fell for it. When the impeachment motion fell through, Ramaswamy told the Chief Justice that he would resign and the matter was amicably shelved, not settled, becaue the judge lived in his palatial government accommodation in Delhi, drew his salary and enjoyed the perquisites and a week before his retirement went and sat on a Bench to retire normally. It was during the impeachment move that Kapil Sibal was asked to explain the legal position to the MPs and he made the characteristic remark, characteristic of the Party that has now made him a Union Minister for HRD that personal integrity and financial probity can be separate. Gentlemen of the jury of the blogistan, the question was whether a judge (of the Supreme Court of India) can be objective and impartial in discharging his task despite vulnerability to lures of dubious gain? Kapil Sibal and his party believe it was possible; it is possible and in the future tense as well. It was before KG Balakrishnan, the country’s first “Dalit Chief Justice”. I was reminded of a Dalit Union Cabinet Minister who remained in the Cabinet through several ministries at the Centre. When he passed away, Ram Jetmalani wrote an article in which he mentioned that through affidavits files in various courts in Delhi by his progeny fighting for his properties, it was clear that he had properties woth about one hundred crore rupees. One has wait for a couple of months more to know how much property the former CJ’s daughters and their husbands have amassed. 

I should not fail to mention another big shark among the members of the higher judiciary in the country who rose to become Chief Justice of Karnataka HC and was considered for promotion to the Supreme Court when his misdeeds caught up with him. Paul Daniel Dinakaran was someone who was removed from Karnataka HC, whose promotion to the SC was stalled on account of his highly questionable behaviour, was found fit to be the Chief Justice of Sikkim, an Indian State. No wonder, The Sikkim Bar Association president had asked "How come the person be fit to be discharge judicial duties in one state if he has not been found worthy of doing the same in another?”
Remember, he as CJ, Karnataka, had interfered with the administration of justice in a manner very few have done before, by taking over cases to be heard by brother-judges after making unauthorised correction in their attendant register! It was alleged that he transferred judges and appointed employees illegally, and massed huge tracts of land ignoring Tamilnadu Land Reforms Act of 1961, even including land belonging to the State to his property. He also acquired land to be allotted to Dalits and Backwards using his clout against Revenue officials. The Judge managed to get 5 housing plots from the Tamilnadu Housing Board in the name of his wife and two daughters... and so on went the saga of illegitimate acquisition of wealth by his Lordship. In all 16 counts of charges against the judge was looked into by a Committee comprising Justice Aftbf Alam of the Supreme Court, Justice J.S.Khehar of Karnataka HC, and eminent lawyer PPRao (Rao was removed from this panel after Dinakaran objected) which submitted their report before the Rajya Sabha for impeachment.
At this stage Justice Dinakaran resigned from his post as CJ Sikkim HC in July 2011 with the obvious intent to to pre-empt the removal proceedings initiated under the Judges Inquiry Act pursuant to a motion admitted in the Rajya Sabha. Quite predictably, Paul Dinakaran too claimed that he was being targeted as he belonged to the lower caste and “the system did not grant him any support.” In August, 2011, Dinakaran stealthily wrote to the Law Ministry withdrawing his resignation. By then the Rajya Sabha Chairman and Vice President of India, Hamid Ansari had quietly buried the impeachment proceedings. On Jan 15, 2012, a reply to an RTI query brought out the fact that Justice Dinakaran willl keep getting his post-retirement benefits, though he had resigned ahead of impeachment proceedings against him, as there are no Constitutional or statutory provisions restricting hisr entitlements in such a scenario. The game is familiar: do the worst while holding poer, play caste-card when caught, surrender to the system and resign, come back quietly with the help of political masters, and get everything the system provides the rest. I cannot but remember in this context Dr.Johnson's definition of pension in his dictionary "pay given to State hireling after retirement for treason to his country". 

Another Judge of the SC, who retired recently, had earned the ire of many law-abiding citizens when he attended a meeting of his community in Kerala and declared without any nudging or provocation from his clergy that his primary loyalty was to them though he was a member of the country’s apex Court. His behavior was suspect earlier in this regard when as the Chief Justice of Karnataka High Court he went to the Narco Analysis Lab and inspected the narco-analysis CDs related to the notorious Abhaya Case which had embarrassed his Church immensely. Nothing happened to him despite protests and motions passed against him and applications sent to the CJ by the legal community.

The Supreme Court verdict in the case of police excesses against Swami Ramdev rally in Delhi Ramlila Grounds is yet another example. It appears the apex court did some balancing trick to make both sides happy. Going point by point into the judgement, the Supreme Court establishes that 1) the Guru and his supporters were within their democratic rights to stage a protest rally, 2) the gathering at the rally were sleeping peacefully, 3) the police erred in clamping Section 144 of the Cr.P.C on the night of June 4, 4) the police action was not decided on the spot, but perhaps the cops were nudged   Union Home Ministry, 5) the chain of events reveals that it was a case of police excess, 6) the police action was human rights violation, 7) it was abuse of power, 8) the police action was an assault on democratic values. Now, how did their Lordships take an about turn and blame Ramdev for continuing the stir which they agreed was in the spirit of democracy, how did they blame the peacefully people who were rudely assaulted in their sleep for waking up in alarm and consternation to and taking defence postures or being aggressive in self-defence in the wee hours? The law allows police to use force only on two counts: 1) to disperse an unlawful assembly, 2) to arrest somebody who is resisting arrest. If the police action did not have the sanction of the law of the land, how could have Ramdev’s men an “unlawful assembly” and were not Ramdev’s followers then free to act in self-defence? If the police erred in clamping the prohibitory order, what was wrong in “continuing with the stir”, my Lords? A Supreme Court ruling cannot be even-handed in the manner journalists report, putting the blame on both sides to give a much touted “balanced view”.

Spl.CBI Court Judge OP Saini strains every nerve to exclude PC from Criminal conspiracy charge employing a verbal hair-splitting over whether Chidambaram “deliberately” fixed a low entry fee for the Spectrum licences, having found the Telecom Minister criminally culpable when it is palpably clear that the Finance Ministry can shoot down any financial irregularity in any other Ministry. Saini has to be congratulated for fine-tuning his logic to write that “merely attending meetings and taking decisions therein is not a criminal act” when Chidambaram’s participation in the decisions on price determination and share dilution involved in huge loss to the nation and gave illegitimate pecuniary advantages to the licencees against whom the Supreme Court of India has established fraud and misrepresentation in a related case.  Painting A.Raja as villain and Chidambaram as an innocent colluder to the former’s nefarious activities does not look very logical. Chidambaram’s Fair Growth past does not seem to go well with a clean image.

The case of Tamil actor Khushboo is suddenly in the news again when Justice Balbir Singh Chauhan of the Supreme Court, speaking in the Justice Y.V.Chandrachud Lectures, on the “Role of Judiciary in protection of human rights”, said that there was no law to initiate prosecution against her for expressing her approval of living-in relationships when she had to face as many as 28 litigation by lawyers and had to remain in prison for six weeks before acquittal by  a higher court. In the most painful period of democratic India’s constitutional history, during the infamous Emergency (1975-1977) of Indira Gandhi, a Supreme Court Bench five most senior judges heard a Habeas Corpus case, in which counsels for the detenues under the restrictive Maintenance of Internal Security Act argued that the Right to Life and Liberty (article 21 in the Indian constitution) could not be suspended during periods of national emergency. Justice Chandrachud, sadly went along with Justices A.N. Ray, P.N. Bhagwati, and M.H. Beg, to reject this position and went alog with the Attorney General’s view that those behind the bars had no Fundamental Rights. Justice H.R.Khanna, the lone dissenter on the Bench, was superseded and M.H.Beg was made the next CJ. All others were made CJs. Chandrachud had surrendered to the absolutist government to rule that Fundamental Rights were not sacrosanct. He served as CJ for over seven years, the longest tenure of a CJ. It is ironical that a lecture on the “Role of Judiciary in protection of human rights” is organized in his name though in Sha Bano case he was pro-Muslim women’s rights.
The Supreme Court of India has made disastrous mistakes, that too in critical moments of history, reasoning its way to dubious and horrible decisions. In the terrible days of the Emergency, the Supreme Court rules that the Fundamental Rights of Indian citizens could be suspended. The Fundamental Rights now considered inviolate and sacrosanct being one of the basic features of Indian Constitution. The Supreme Court approved the retrograde Mandal reservations for the OBCs which in effect set the clock back and brought back casteism to destroy national unity permanently.
Here is what a former Supreme Court Judge said: “Indian Judiciary is in many senses primitive, colonial and feudal” and judges of the High Courts and the Supreme Court “bungle, stumble,and royally sweep their bizarre way through, avoiding criticism using contempt of Court as a sword, scaring away even informed jurists speaking the truth.” That was Justice (retd)VR Krishna Iyer indeed!

 As a tail piece let me give this the hilarious best from a Chief Justice of India’s Supreme Court, speaking at the Golden Jubilee celebrations of Cuttack High Court, Supreme Court CJ J.S.Verma warned the State government that unless Judges of Orissa HC are allotted quarters within a month, they will all be transferred out of Orissa to other states and no judge will be appointed in Cuttack HC. He also expressed annoyance at the lack of interest shown by the Government in appointing District Judges for the new districts in Orissa. That was in 1997. Did the judges get their accommodation, I wonder.

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