Oblong Arm of the Law

By Sudhansu Mohanty

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As a concerned senior citizen who is a former civil servant and retired last year at the apex level of bureaucracy, I write this to the Hon’ble Chief Justice of India, J. S. Khehar, with great anguish and with a stab of pain in my heart. All my life I have fought against corruption and dishonesty, including the not-so-visible and not-so-palpable part of intellectual dishonesty in public life. Frankly, it wasn’t one bit easy for me, but I persevered nonetheless and regardless of my professional career. Hence I thought I must share my thoughts that disturb me no end and which you, as the CJI, are in a position to address.

The DNA newspaper on July 17, 2017 broke the news on its front page that “A three-member committee of judges, constituted by the Supreme Court to conduct an in-house inquiry against two sitting judges of the Odisha High Court, has halted its proceedings after the name of a senior Supreme Court Justice cropped up during the course of the probe.” And that “The panel, headed by Punjab and Haryana High Court Chief Justice S. J. Vazifdar, has now written to the Chief Justice of India for guidance and directions.” Soon thereafter, the legal news magazine Bar and Bench picked up the story and inter alia reported that “Flummoxed at this development, the three member panel of high court judges, headed by Punjab and Haryana High Court Chief Justice S. J. Vazifdar has written to CJI Khehar seeking his guidance. The panel has stated that despite allegations of the Supreme Court judge’s proximity to these two judges, it is unable to proceed because its mandate excluded probing charges against a sitting Supreme Court judge.” On 18.07.17 the Times of India also carried the same news item under the caption “Graft probe against HC judges has panel in a fix”. Then 3 days ago, an article in The Wire reported that the SC Judge whose name cropped up is the upcoming Chief Justice of India — Hon’ble Dipak Misra.

You will agree that, of the four putative pillars of democracy in India, the one institution that cries out for immediate reform, perhaps more than the other three  —  executive, legislature and media  — is doubtless the judiciary. Because today the judiciary has become ubiquitous  — omnipotent in its sweep, omniscient in its wisdom and prescience, omnipresent in every walk of life that affects a common citizen. Open any newspaper or surf any TV channel or browse the net and you will get to read or hear the erudite words of learned judges of the Supreme Court or one of the High Courts. The faith in judiciary and especially the apex court is, as is supposed to be, unflinching, full, and absolute. We ordinary citizens look up to the Supreme Court with great faith and respect, something not ordinarily accorded to other organs of governance.


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Upcoming Hon’ble Chief Justice of India Dipak Misra

Appropriately, therefore, this blind, undying faith puts an onerous responsibility on the Supreme Court as an institution and especially on you, who helms the same, as the CJI. But recent developments, even the developments in the past few decades, do not fortify the citizen’s faith. I can do no better than bring to your attention a few of the averments (given below in italics) made in an affidavit by Mr. Shanti Bhushan, the respected senior lawyer  — who in 2010, while impleading himself in the case publicly, stated that out of the last sixteen Chief Justices of India, eight of them were definitely corrupt  — when he wrote those immortal lines on the need to enforce judicial rectitude, and pleaded that he “be added as a respondent to this contempt petition so that he is also suitably punished for this contempt. The applicant would consider it a great honour to spend time in jail for making an effort to get for the people of India an honest and clean judiciary.” I have no idea what came of the case. Since nothing is available in the public domain, I assume perhaps no corrective action has been taken by the apex court yet.

…that the judiciary has adopted the policy of sweeping all allegations of judicial corruption under the carpet in the belief that such allegations might tarnish the image of the judiciary. It does not realise that this policy has played a big role in increasing judicial corruption.

That the Constitution prescribed removal by impeachment as the only way of removing judges who commit misconduct since it was believed, at the time of the framing of the Constitution, that misconduct by judges of the higher judiciary would be very rare. However those expectations have been belied as is apparent from the surfacing of a series of judicial scandals in the recent past. The case of Justice V. Ramaswami and subsequent attempts to impeach other judges have shown that this is an impractical and difficult process to deal with corrupt judges. The practical effect of this has been to instill a feeling of impunity among judges who feel that they cannot be touched even if they misconduct themselves.

That corruption by judges is a cognizable offence. The Code of Criminal Procedure requires that whenever an FIR is filed with respect to a cognizable offence, it is the statutory duty of the police to investigate the offence. The police has to collect evidence against the accused and charge-sheet him in a competent court. He would then be tried and punished by being sent to jail. The Supreme Court has, however, by violating this statutory provision in the CrPC, given a direction in its Constitution bench judgement in the Veeraswamy case of 1991 that no FIR would be registered against any judge without the permission of the Chief Justice of India. In not a single case has any such permission ever been granted for the registration of an FIR against any judge after that judgement.

That the result of this direction has been that a total immunity has been given to corrupt judges against their prosecution. No wonder that judicial corruption has increased by leaps and bounds.

That an honest judiciary enjoying public confidence is an imperative for the functioning of a democracy, and it is the duty of every right thinking person to strive to achieve this end.

That unless the level of corruption in the judiciary is exposed and brought in the public domain, the institutions of governance cannot be activated to take effective measures to eliminate this evil.

That it is the common perception that whenever such efforts are made by anyone, the judiciary tries to target him by the use of the power of contempt. It is the reputation of the judge which is his shield against any malicious and false allegations against him. He doesn’t need the power of contempt to protect his reputation and credibility.


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Former Law Minister Shanti Bhushan

Today, citizens of this country know that the malaise runs deep. An advocate indulging in crass shenanigans gets elevated through the collegium system — a system which doubtless was established with all good intent, but quickly degenerated to one of give-and-take so much so that the author of the collegium system, the revered Justice J. S. Verma, had regrets about its efficacy. Imagine: there are no records of collegium meetings available! Recall how, not too long ago, Justice Chelameswar, one of the collegium members, had dissented and raised his voice against the prevalent practice and demurred to attend meetings of the collegium; and instead wanted views to be recorded on files. Never in my fallible memory of government past, working in the much maligned Indian bureaucracy, did I ever see any decision of value — let alone important decisions — not recorded or views not expressed and controverted, even dissented openly. The sad thing, is everyone knows what goes on in the judiciary. Almost everyone talks about it in high-pitched exasperating decibels in private confabulations, but stops short of saying so even in whispered tones in public  — lest they cross the lakshman rekha and breach the contempt law. Because there is no appeal beyond the apex court  — no matter how right or wrong such orders are. Ask the honest, no-nonsense, upright and knowledgeable former Supreme Court judge, Justice Markandey Katju!

This calls for extreme caution and self-restraint. You know better than I do Lord Atkin’s immortal lines, “Justice is not a cloistered virtue. It must suffer the scrutiny and outspoken comments of ordinary men.” Especially in today’s time when the clamor for transparency in public life is surging ahead.

Look at the sorry state of the judiciary’s functioning. The judges refuse to bring the Supreme Court Registry under the RTI purview; Justice A.P. Shah, a rare independent and conscientious judge of unimpeachable integrity is not elevated to the apex court because he was perceived as too independent, too impartial, and too honest for anyone’s comfort. Whither are we bound? The judiciary is mandated to uphold the rule of law, to speak the moral vocabulary with its internal moral compass perennially ticking to dispense justice; what happens when the upholder of the law starts eating the crop!

If my memory serves me right, some six-eight months ago, the Economic Times (link) had carried news about a Supreme Court judge acquiring land in a fraudulent manner or by misrepresentation of facts and continued to hold the same even much after his elevation. I didn’t know till moments ago the name of the judge, but I have wised up now — it is Justice Dipak Misra. But all these past months I didn’t hear anything in the media. Nor if the matter was at all inquired into by the Supreme Court to get to the bottom of the complaint. This is what citizens of this country would expect from public officials, more so from a judge of the apex court. We aren’t a banana republic after all!


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Present Hon’ble Chief Justice of India J. S. Khehar

Your Lordship, as the CJI the ball is in your court now. Given that, as things stand today, no FIR can be registered against any judge without the permission of the Chief Justice of India, I would urge and plead with you to appoint a Committee comprising of a few senior judges of the Supreme Court with the direction to carry out an immediate in-house inquiry to find out the truth. It has to be immediate  — justice delayed is justice denied — and your decision in the matter put out in the public domain to restore citizens’ faith in the judiciary. I will humbly like to nudge you to remember the first and the last codes of RESTATEMENT OF VALUES OF JUDICIAL LIFE, as adopted by Full Bench of the Supreme Court on May 7, 1997.

Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of the judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception, has to be avoided.

Every Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.

If the alleged judge is innocent the public must know; if found guilty, he should be dealt with the severest punishment that can be sanctioned against a public official and a Supreme Court judge at that, so that the exemplary punitive action meted out rings down the corridors of the Indian nation and democracy that takes pride in its rule of law. Sunlight is the best disinfectant. After all, judges, given the important role they play in a nation’s life, are expected to follow the punctilio of a higher code and, as the saying goes, judges must, like Caesar’s wife, be absolutely and always above board. And all along, we as citizens and you occupying one of the highest offices in this nation need to stay ineffably humble regardless of the position we hold and the perch we speak and act from, and chant the prescient words of Thomas Fuller, the 17th century English churchman: “Be you ever so high, the law is above you!

Your Lordship, as I said before, it is now your turn to act and make the right move. We wait with bated breath the transparent outcome of your action.


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The writer, Sudhansu Mohanty, is an acclaimed author and previously served as a Financial Adviser to the Ministry of Defence and Ministry of Environment, Forests & Climate Change.
This post was first published as an open letter on his blog, Babupaedia.

Tweet at Sudhansu: @MohantyMohanti



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