Sunday, April 11, 2010

Justice of the Black Robes

At a time when media is salivating at the prospect of Sania-Shoaib wedding, it will be good occasion to cut through the layer and inspect the underbelly of India’s judicial system. The cosmetic surgery begins to peel off once we do a careful inspection of third pillar of democracy. Let’s begin with an acknowledgment: judges are human beings; not angels and therefore prone to human tendency of error of judgement. Bias lurches in every intelligent mind and judges are no exception.
So what was India’s first Dalit Chief Justice of India (CJI) K. G. Balakrishnan thinking when he attended a programme of Gujarat National Law University along with Narendra Modi, who was grilled a day before by Supreme Court appointed SIT concerning his role in 2002 riots? CJI sat on the right side of Modi, while Gujarat High Court Chief Justice S J Mukhopadhyay was seated on the left of the chief minister! It was a sight to behold! Can we imagine mass butcher of Gujarat seated in the middle of country’s two topmost judicial-guardians? Dr. B. R. Ambedkar would have been really happy to see a Dalit become CJI but he would not have surely approved of sharing dais with a man accused of genocide! How would we Indians react if Dawood Ibrahim shares dais with CJI? There would be public uproar; the media will cry hoarse; and chances are that there will be mass violence on the streets. One may not agree with drawing parallels between Narendra Modi and Dawood Ibrahim but one thing is certain: both have been guilty of presiding over mass murder. It’s a different matter that Modi happens to be democratically elected representative while Dawood is an underworld don. One is accused of masterminding 1993 serial blasts while other is responsible for the 2002 Gujarat riots. On February 28, 2002, Modi made a six-minute speech in which he talked about ‘peace’! In the speech he talks about Godhra tragedy and says “an example will be set that in future no one will dream to commit such heinous act.” It was indeed a grave provocation which was followed word by word. 

No man of conscience would ever share a dais with Narendrabhai Modi. But in these politically correct times, everything can bought and sold including a judicial conscience!

For those who have problems drawing parallels with Dawood Ibrahim can do one thing: try replacing Dawood with Sanjay Dutt or even a Sajjan Kumar!

CJI may have shared dais with Modi on technical grounds as it is not illegal to do so. But there is something called judicial ethics and morality. Think of another Chief Justice of India who retired in 2004 after pronouncing a landmark judgement in Best Bakery case and gave Modi the title of “modern-day Nero.” Later in an interview given to veteran journalist Kuldip Nayar, Justice Khare said, “Had I been an ordinary citizen, I would have filed an FIR against Gujarat Chief Minister Narendra Modi”. “When ghastly killings take place in the land of Mahatma Gandhi”, he added, “it raises very pertinent questions as to whether some people have become so bankrupt in their ideology that they have deviated from everything which was so dear to him.”

Justice V. N. Khare set an example but judges like him are rare in judicial world. Y.K. Sabharwal, former CJI, has been accused of delivering a judgement (Delhi ceiling case) which allegedly benefited his sons. His orders were against the principles of natural justice which say that no judge can hear a case in which he has a personal interest.

Justice Nirmal Yadav of Punjab and Haryana High Court was transferred to Uttarakhand High court after her name figured in ‘cash-at-judge’s-door scam’  after the recovery of Rs 15 lakh at the door of another Punjab and Haryana High Court judge Nirmaljit Kaur, which was said to have been delivered there due to confusion over names. The CBI was denied permission by the government in April 2009 on the advice of then Attorney General Milon K Banerjee to proceed in the case, following which the collegium recommended the transfer of Justice Yadav.

Not all judges share the same fate. Justice A. P. Shah, who brought CJI under Right to Information Act, was not elevated to Supreme Court because a collegium member was reportedly not happy with one of Justice Shah’s judgements. Constitutional expert Rajeev Dhavan termed this as “travesty of justice” and said, “collegium runs on rumours, not facts.” There is no transparency in appointment of Supreme Court judges. Centre must bring transparency in appointment of judges. 

Recently, there was a tussle between CJI and Karnataka High Court judge Justice D.V. Shylendra Kumar over the declaration of assets by judges. Justice Kumar became the first High Court judge in the country to have questioned the chief justice’s stand on the issue of declaration of judges’ assets. On his blog, he has reported to have questioned the moral authority of CJI, calling him a “serpent without fangs”. CJI has slammed the views of Justice Kumar. “He wants publicity and such a thing is not good for a judge. Judges should not be publicity-crazy.”

CJI is right in his stand that judges should not be “publicity-crazy”. But CJI would also agree that judicial ethics demand judges should not freely mingle with public including politicians. It is in this context, Gujarat National Law University programme where CJI sat next to Modi must be interpreted.

Surprisingly, Bombay High Court dismissed a petition on April 6 concerning fresh probe of Malegaon 2006 blasts. The judgement of case not only depends upon the facts but also on the nature of judges. Consider this: On November 16, 2009, Justice J. N. Patel came down heavily on CBI for not filing any report after three years of investigation in Malegaon 2006 blasts. The CBI clearly stated in Bombay High Court that it does not have evidence against accused arrested in 2006 blasts. (Hindustan Times, November 17, 2009, Mumbai edition).
CBI filed supplementary chargesheet in February implicating all the accused arrested. No judge questioned the contradictory stand of CBI. In November, CBI declared in Bombay HC those accuseds are innocent. In February, CBI declared that all the accused are guilty by filing a supplementary chargesheet!

Who will iron this judicial irony of black robes?

Sunday Inquilab, April 11, 2010