Chief Justices dogged by controversies

Chief Justices dogged by controversies

Olav AlbuquerqueUpdated: Thursday, May 30, 2019, 04:08 AM IST
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Two controversies dogged the judiciary this month which did not make it to the news columns of the major newspapers. The first was that Punjab MP Harinder Singh Khalsa’s  writ petition challenging Justice Dipak Misra’s being sworn in as the 45th chief justice of India (CJI) will become infructuous because there is no doubt that the soft-spoken Justice Misra will be sworn in on August 27  and will head the Indian judicial family till October 2018.

He is a former chief justice of the Patna and Delhi high courts and has been  appointed as he is the seniormost judge in the Supreme Court. The seniority rule was only broken by Indira Gandhi when she superceded Justices Shelat, Hegde and Grover to appoint Justice A.N.Ray as the CJI. Khalsa has had the guts to ask that this seniority rule be relaxed to allow another judge to become the CJI.

Justice Misra headed the bench which rejected the 1993 Mumbai serial blasts convict Yakub Memon’s appeal to stop his execution and for upholding the death sentence awarded to the accused persons in the 16 December 2012 Delhi rape case. Khalsa alleged in his writ petition that Justice Dipak Misra is not the best suited for elevation as the CJI because his name was allegedly mentioned in the suicide note of the late chief minister of Arunachal Pradesh, Kalikho Pul.

Two other names of former CJIs allegedly mentioned in Pul’s suicide note were that of Justices H.L.Dattu and Altamas Kabir. But a suicide note is not first-hand evidence in any court because what Pul has alleged cannot be verified and could have been written under mental trauma.  Pul’s wife will file another writ petition demanding a probe into his allegations of corruption against the rich and influential.

Khalsa’s  writ petition was drafted by Advocates Mathews Nedumpara and A.C. Philip from the National Campaign for Judicial Accountability and Transparency. Not many may know this, but when a sitting judge is attacked, he is not free to defend himself outside his court room because he is subject to the law of defamation which applies to all citizens. So, Justice Misra like some Congress leaders mentioned in the suicide note have kept silent.

Judges are totally immune from prosecution only when they speak in their court rooms which is why they are erudite and reticent like Justice Misra. When under a cloud, judges from the Bombay, Madras and Allahabad high courts have been transferred to other high courts. A few judges from the Bombay high court chose to resign rather than meekly accept a transfer.

It is also not true that judges are transferred only because of dubious reasons. To illustrate, a suave and intelligent Justice Hemant Gokhale from the Bombay high court was transferred to the Gujarat high court several years ago. He returned to the Bombay high court and finally was appointed as the chief justice of the Madras high court when a DMK minister phoned a Madras high court judge, R. Reghupathy,  in an attempt to influence his decision to grant bail to a doctor-son duo in a fake mark-sheet case.

The then CJI K.G. Balakrishnan denied having ever received any complaint from the Madras high court about this episode. But Justice Gokhale rebutted this in a press conference. This spoke paeans about Justice Gokhale’s  integrity.

Conversely, the then CJI K.G. Balakrishnan was dogged by controversies because his relatives allegedly amassed fortunes when he was the CJI. The income-tax department inquired into these allegations but the results were never divulged to the media. Like Justice Balakrishnan, there have been controversies which have dogged former CJIs like Justice Punchhi and Justice Altamas Kabir.

But to return to the present, the second controversy which did not make it to the headlines was when the president of the Supreme Court Bar Association, R.S. Suri,  asked in his speech in the apex court premises “why most of those who become high court judges are sons of acting or previous judges ? Why is it that 80 per cent of panels are filled with sons and daughters of judges ?  These things have to be explained logically so that we give a chance to other persons to come up the ladder because they too are capable. We have an excellent relationship with the judiciary but we have to be given our due.”

But rather than rebut the gravamen of these allegations, Justice Khehar quoted a newspaper report which said his son had been appointed on a government panel.” When he questioned his son, the latter told him he was never associated with any government panel. The news report confused another lawyer with the surname Khehar with that of his son. Justice Khehar quoted another example of a Delhi high court lawyer who refused judgeship because his father had been  a judge.

However, by citing these two examples, the gravamen of the allegations made by a senior lawyer like R.S. Suri remained unrebutted. There is nothing wrong in sons of judges become judges except for the fact that certain names are well-known in the legal fraternity so that when these are vetted within the closed doors of a collegium, they are automatically approved unless there are serious charges of misconduct. As Justice Chelameshwar Rao of the Supreme Court has stated, there is no record of what was discussed behind these closed doors.

The author holds a PhD in Media Law. He is a journalist-cum- lawyer of the Bombay High Court

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