The appointment of Justice J.S.Khehar as the 44th Chief Justice of India (CJI) for only eight months evoked controversy with Supreme Court lawyer Prashant Bhushan asking the judge to recuse himself from hearing a petition against Narendra Modi for allegedly receiving bribes from two business houses when he was Gujarat chief minister.
Justice Khehar is the first Sikh to be appointed a CJI which leaves only the Christian community to wait for a CJI. India has had CJIs from the Parsi, Muslim, Dalit and Sikh communities in line with the convention that all communities are represented in the higher judiciary.
Earlier a bench consisting of Justice Khehar and Arun Mishra did not find the documents produced in Bhushan’s petition strong enough to set up a Special Investigation Team to probe the charges against Modi. This provoked Bhushan to request a visibly upset Justice Khehar to recuse himself from the next hearing because Modi was to clear his file as the next CJI.
This is not the first time that the father-son duo of Shanti and Prashant Bhushan has leveled serious charges against the judiciary. Earlier, on September 16, 2010, former Union law minister Shanti Bhushan swore an affidavit stating that eight out of 16 former CJIs were “definitely corrupt, six were definitely honest and no conclusion could be reached about two other CJIs.” The sources of this information were “two former CJIs who told Shanti Bhushan that their immediate successors and predecessors were corrupt,” alleged Shanti Bhushan. This made front page news.
Presumably, former CJI K.G. Balakrishnan (2007-2010) was one of those named as “definitely corrupt” because after he retired, even former supreme court judges asked him to respond to the allegations that his relatives back in Kerala had allegedly amassed fortunes during his term as CJI. But the wily ex-CJI kept his mouth shut.
But Justice Khehar is a different cup of tea because although his integrity is beyond doubt, he has been accused of being quick tempered and intolerant of minor mistakes in the court. A petition which is certain to be dismissed by the Supreme Court on December 23 has been filed by advocate Mathews Nedumpara which alleges that Justice Khehar is aggressive, quick to use the contempt weapon, while being more responsive to bigwig lawyers of the Supreme Court than the small fry. This detracts from making him an ideal judge, Nedumpara has alleged.
Also, the fact that he headed the bench which struck down the National Judicial Appointments Commission Act, 2014 resulted in clearing the way for himself as the next CJI, Nedumpara has alleged. Bhushan too pushed for Justice Chelameshwar as the next CJI in preference to Justice Khehar because his was the lone dissenting judgment to support the NJAC.
But it is not left to lawyers to decide who will be the next CJI as the file is cleared by the Prime Minister who today is himself under a cloud because of the perhaps unproved allegations leveled by Rahul Gandhi that he received bribes from the Sahara and Birla business houses. All this proves that neither the judiciary nor the executive can select judges by themselves.
In his favour, Justice Khehar topped the LL.M examination of Panjab University in 1977 and also defended a former corrupt Supreme Court judge, Justice V. Ramaswami before a three-judge inquiry committee. Ramaswami was the first supreme court judge in independent India to face impeachment.
The impeachment failed and the Supreme court dismissed a petition upholding the failure of the impeachment motion. In 1999 Ramaswami contested the Lok Sabha elections on an Anna Dravida Munnetra Kazhagam ticket in Chennai but lost. Decades later, another allegedly corrupt judge of the Bombay high court, Justice Vijay Bahuguna resigned on corruption charges and later became the Uttarakhand chief minister where he was again forced to resign.
Judges are selected amidst mystery and not elected in open by the majority like the MPs and MLAs although a few of them are also corrupt. Judges cannot be removed from office for atrocious judgments like the two verdicts acquitting Salman Khan of the charges of drunken driving and shooting a rare deer species.
Sometimes, as fate wills it, some of these judges do get elevated to the Supreme Court because it is final but definitely not infallible. And when the judges of the apex court accept this in all humility, they step out of their ivory towers and come closer to the people. For in a democracy, it is the people who are supreme.
And certainly not the judiciary.
The author holds a PhD in Media Law. He is a journalist-cum-lawyer of the Bombay High Court.
