New Delhi: Former Supreme Court judge Kurian Joseph said Thursday that he was beginning to regret his judgment against the National Judicial Appointments Commission (NJAC), which was set aside by a 4:1 majority. Justice Jasti Chelameswar, who also retired last year, was the sole dissenter.
The former judge and finance minister Arun Jaitley were in conversation at the launch of a book ‘Independence & Accountability of the Indian Higher Judiciary’, written by Arghya Sengupta, the head of think-tank Vidhi Centre for Legal Policy.
Jaitley defended the government’s push for the NJAC, which would have replaced the collegium system if the Supreme Court hadn’t set it aside.
The minister said he disagreed with the observations in the NJAC judgment, which said participation of the Executive violates the basic structure of the Constitution. The original Constitution envisaged a role for the Centre in the appointment of judges, he said.
Intimidation of judges
Jaitley, who is also a senior lawyer, said there is a growing trend of intimidating judges via social media. He said that in his time in Parliament, many cases related to the impeachment of judges had come in, and many more had been proposed.
“I am for the judges. Unless, of course, the facts are glaringly obvious,” Jaitley said.
He called it the process of mass intimidation of judges, and said it’s a very popular thing to throw mud at a judge. Frivolous reasons are being used to bully judges with impeachment; the process must be reserved for really serious cases, he said.
Justice Joseph said an in-house mechanism is the need of the hour to preserve the honour of the judges. He said his suggestions on the improvement of the system had been largely ignored, and that’s what was making him regret his judgment in the matter.
Joseph, who was part of the unprecedented press conference held by the four senior-most judges of the Supreme Court in January 2018 against Chief Justice of India Dipak Misra and his alleged maladministration, said the system is 100 per cent defective and needs to be streamlined.
Independence of the system
Joseph compared the independence of the system to the “chastity of a virgin”. He said the primacy of the judges has been eroded and the system compromised.
“The quorum of the bench should reflect the diversity,” Joseph said, adding that lawyers who argue the matter can more or less predict the judgment based on the quorum, and thus judgments can be manipulated by cherry-picking judges to get favourable results.
“The perception of faith of the people and the appearance of justice will depend on the courts. Judges must be perceived to be absolutely independent,” Joseph said.
Jaitley disagreed, saying he did not subscribe to the view that faith in the system had been eroded. “We sometimes create propaganda in our minds. Judges work in a different scenario now, which is less conservative,” Jaitley said.
Reflecting on the trend of sealed covers at the Supreme Court, Joseph said that the “deity of justice is blind, but the justice delivery system must not blind”.
Jaitley said when judges start adjudicating matters beyond judicial purview, it’s difficult for them to get out of it. In such cases, transparency becomes an issue — what should one tell the public and what not.
The judge starts regretting taking the case, and hence the sealed cover comes in, he said.
A small suggestion.
All courts / judicial institutions should have e-mail IDs. Why should all courts not provide e-mail IDs, when even school kids have e-mail IDs? Digital communications are tamper-proof and deniability is non-existent. Litigants can make submissions to these IDs.
As a matter of fact, courts are using WhattsApp to serve notices / issue summons. Digital communications are not only ethics compliant, they are also environmentally friendly. It will bring around a degree of transparency.
To regret is one thing, but to truly come out clean is another. Justice Kurien may probably be an exception but it is common knowledge in public space how some judges who had humble beginnings had become judges in the first place because of their political leanings or soft corners, and how some judges have amassed wealth beyond their known and manageable sources of income in Office. The case in point is the vagueness that still stands on the charges of amassing wealth against Chief Justice Balakrishnan, etc.
One way to handle this could be – the Judge should, like Executive, declare his and family income and assets the day he is appointed to any court – be it at the lowest Sessions Court level or to a High Court or to Supreme Court. That, to me, is the starting point.
On a more serious note, let us join a few dots. 2. The NJAC Bill was passed early in the government’s tenure, with the political class showing rare unanimity, which was elusive on other important issues like Land Acquisition. 2. The impeachment motion against CJI Dipak Misra was rejected by the Vice President. 3. The complaint of the lady employee and issues pertaining to her family members have been swirling around with the authorities for several months before they entered the public domain. Observe how they have been dealt with. Or even how protests in the last few days, some as far afield as Bangalore, are being contained. 4. For the executive to covet the power to appoint judges or have some role in disciplinary proceedings is not an act of altruism. The higher judiciary, especially the apex court, is the only meaningful source of countervailing power in the system. Not just ordinary citizens but even other institutions who find their autonomy being undermined have no other means of redress. Hence Mrs Gandhi’s desire for a “ committed judiciary “. I blindly supported the NJAC judgment without reading a word of it. It was physics, not law. 5. When so much power resides in the higher judiciary, it has to raise the bar very high for itself. If it falters, the almost uncritical faith ordinary citizens place in it will start melting. At the appropriate time, the executive will reclaim paramountcy. One sees in Justice Dr Dhananjay Chandrachud a fine appreciation of what is at stake in this matter. It goes beyond one individual. If not handled with fairness, majesty will begin to leach out of the institution.
On a lighter note, all women should be chaste, not just the virgins.
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