In Defence of A Judge

It was a sad spectacle defying explanation. There was the just-retired Chief Justice of India, Altamas Kabir, pleading his innocence on a TV talk show. Even more bizarrely, he said, on camera, that his successor, Justice P. Sathasivam, owed him an apology, that he had spoken to him and expected a clarification in writing that he had not been ind­icted in open court. And, as the row over his judgements in the last few days of his term erupted, Justice Kabir took the unprecedented step of issuing a press release to explain his conduct and plead innocence. Had the insinuations been made by ‘outsiders’, they would have invited proceedi­ngs for contempt of court. But when honourable judges themselves erode public trust in the judiciary, the transgress­ion, though tra­gic, becomes apparently more acceptable. A retired CJI appears an easy target, and quite as helpless as the average Indian citizen in search of justice and some san­ity in the administration of justice.

As if this wasn’t bad enough, the outgoing CJI was attacked in the Lok Sabha this fortnight when JD(U) leader Sharad Yadav on the opening day of the monsoon session accused Kabir during the zero hour of delivering a surreptitious order (shaam ke andhere mein). He was apparently referring to the constitution bench of the apex court striking down reservation in the appointment of facu­lty members in highly technical areas like ‘super-speciality’ hospitals and medical colleges. Although the judgement was delivered unanimously by five judges and the bench felt that merit had to take precedence in certain areas, Kabir was sin­gled out for the attack. It followed a series of snide remarks and selective leaks directed at Kabir’s allegedly questionable conduct. They were confined not just to the judgements he delivered; he was also accused of trying to push through the elevation of a judge from Madhya Pradesh to the Supreme Court and blocking the elevation of another from Gujarat. The allegations clouded the ‘fact’ that the MP judge’s case had been pending since October last year or that the Gujarat judge’s elevation had been unanimously turned down by the collegium of seniormost judges of the Supreme Court, which would have included the outgoing as well as the incoming CJI.

While the selective leaks established the deep divisions within the apex court, there are also indications of a deeper malaise plaguing the judiciary. Several orders of the apex court in recent years have appeared to be extraordinary. One such order was delivered by Justice Sathasivam himself last month and less than a week after he took over as CJI. With Justice Ranjan Gogoi on the bench, he gave an unpreced­ented opportunity to an accused to choose a judge of his liking to try him. Quite possibly for the first time, the apex court allowed the accused (RJD chief Laloo Prasad Yadav) and the prosecutor (CBI) to evolve a consensus on a fresh judge to hear the 16-year-old fodder scam case against the former Bihar CM. Even more unusual was the earlier order of the same bench, which accepted the accused’s plea that he had lost confidence in the trial judge and did not expect justice. The reason cited was that a sister of the CBI special judge was married to the cousin of a Bihar minister, who had this year lost a byelection to the RJD.

The apex court ignored the Jharkhand High Court, which had dismissed the plea earlier. The latter had noted that the said trial judge had been hearing the case since 2011, that he had given the accused several opportunities to produce evide­nce and witnesses, that there was evide­nce on record that the accused had resorted to delaying tactics, which had forced the judge to announce that the judgement would be delivered on July 15, by when the accused was asked to complete the examination of the defe­nce witnesses. Indeed, the apex court ordered the CBI to report whether the “allegati­ons” against the trial judge had any merit. While the CBI ref­rained from submitting any report, one wondered whether “marriage of a sister to a cousin of a politician” could amount to an allegation or if it would set a precedent in future.

Meanwhile, the proclivity of the judges to lecture others is no longer amusing. While the apex court continues to pull up the executive for not being transparent enough, for not sett­ing up systems and benchmarks etc, it does not seem to pra­ctise what it preaches. The collegium system of appointing judges, for example, would possibly be far more credible and  transparent if the court starts maintaining minutes and recor­ding why some judges are elevated while others are not. Similarly, while court-monitored investigations are fast bec­oming a fad, the trend remains an anachronism. A weak central government and a dysfunctional and divided Parliament have failed to question how a court can possibly adjudicate cases which have been ‘investigated’ by itself. Can it act, or be allowed to act, both as the prosecutor and as judge and the jury?