Indian Judiciary: Odd as the new normal
by Sandhya Jain on 13 Jan 2009 6 Comments

Odd appears to be the new normal with the Indian Judiciary. It is at odds with every other institution, at odds with established convention, and proud to be so. The gains to the nation, if any, from the Judiciary’s sudden desire to defy all norms and emerge as primus inter pares of the Indian polity, are questionable.

To cite just two recent examples, briefly: The Supreme Court collegium has been at odds with the Government and even public opinion regarding the appointment or elevation of certain judges, and has refused to revise its decisions despite obvious and legitimate concerns about some of its choices.

More recently, the apex court has been in the limelight on the issue of declaration of assets of the Honourable Judges, and their public accountability. After scores of queries were filed under the Right to Information Act, and under mounting pressure from the Central Information Commission, Chief Justice of India, K.G. Balakrishnan, in August 2008 wrote to all High Court Chief Justices to ensure that a Full Court Resolution of the Supreme Court in 1997 that judges must declare their assets is honoured. This letter was accompanied by a copy of the “Restatement of Values of Judicial Life,” a 16-point charter of do’s and don’ts for judges.

The apex judicial resolution averred: “Every judge should make a declaration of all his/her assets in the form of real estate or investments, held by him/her or spouses or dependants, within a reasonable time of assuming office.” The judges are required to make additional declarations each time they acquire additional property or make further investments of a substantial nature.

In November 2008, the Supreme Court told the CIC that declaration of assets by judges before the Chief Justice of India (CJI) was “voluntary” and not for the public eye. The CIC disagreed with the apex court contention that declarations were made to the Chief Justice in his personal capacity and that the “Full Court Resolution” was not an official document. Chief Information Commissioner Wajahat Habibullah has now asked if declarations made to the CJI are intended to be passed on to successors in office. As the issue is central to judicial probity and accountability, the sooner it is resolved to public satisfaction, the better.

Ironically, the 16-point “Restatement of Values of Judicial Life” inter alia exhorts judges not to waver from the path of impartiality, the core value on which people repose faith in judiciary, and to practice a degree of aloofness consistent with the dignity of a judge. It emphasises that judges should not enter into a public debate or express views on political matters. Judges should let judgments speak for themselves, and should not give interviews to media on judgments.

Well, well, well.

One does not know the circumstances in which all the Honourable Justices of the Supreme Court decided this indicative and by no means exhaustive code of judicial behaviour way back in 1997. Eleven years down the line, the current Chief Justice of India is resisting the kind of judicial transparency and accountability envisaged in the apex resolution and code, and openly violating some of the expressly suggested guidelines. For reasons best known to themselves, but undoubtedly pre-decided and interconnected, Chief Justice Balakrishnan and Justice Markandey Katju have singled out The Hindu of Chennai to serve as the vehicle of their extra-judicial opinions.

In an eyebrow-raising moment in the Indian media, Chief Justice Balakrishnan, who completes two years in office today [13 January 2009], gave an hour-long wide-ranging interview to The Hindu. The merits of his views are not the concern of this column; what is relevant is the flagrant violation of the letter and spirit of the 1997 injunction not to enter public debate.

Below are excerpts from the interview, published 10 January 2009, wherein the Chief Justice pronounces on heavy duty issues and cases currently engaging public attention:

? I don’t think that the general image is seriously dented. People still have very high confidence in the judiciary. The incidents will not have any impact on the people. And these two incidents [the Ghaziabad Provident Fund scam and the Rs. 15-lakh scandal involving a Judge of the Punjab and Haryana High Court], especially the PF scam, has nothing to do with the decision-making process of the court. It is fully on the administrative side… The involvement of district judges is under investigation. I don’t think any High Court judge is directly involved.

? [In the Punjab scandal] the judge has been asked to reply. As per the in-house procedure, depending on the seriousness of the case, we can either ask the judge to resign or work will not be allotted to her.

? [On the Judges (Inquiry) Bill, there is] nothing wrong if the Chief Justice of India is covered under the ambit of the National Judicial Council. This is up to the parliamentarians.

? [Regarding writing to the Prime Minister about non-impeachment of Calcutta High Court Judge Soumitra Sen], Why should we write? They are all very, very responsible persons. They know what to do... If the case is not fit for impeachment then they can take a decision. They may feel that it [impeachment] may not go through Parliament.

? [On action against corrupt elements in the subordinate judiciary] Several judicial officers were compulsorily retired in Rajasthan, Uttar Pradesh and Madhya Pradesh in the last one or two years. That will have an impact... Tell me which department has so far removed any officer on the basis of corruption… we take immediate action.

? [On resisting Supreme Court benches, particularly in Chennai] I think most of the judges subscribe to the resolution passed in 1999 by the Full Court of the Supreme Court that locating regional Benches, whether in Chennai or Kolkata or Mumbai, will affect the unity and integrity of the judiciary. The Supreme Court is a national court and it should be in the [national] capital, which is in the central part of India.

? [About judicial appointments] We are bound by the Supreme Court judgments for the time being. We are strictly following the procedures laid down by the Supreme Court. Unless that decision is changed and the modus of appointment is changed we can’t do anything. Open discussion about judges is not possible here.

? [About differences with the executive on the elevation of three judges] They wanted a further review and asked whether some of the senior judges were also considered. We said they were considered and that is it. I have not felt it that it was a serious objection.

? [Regarding the controversy with the Central Information Commission on judge’s assets] The Central Information Commission says any information [that is] with the Chief Justice of India would be with the Registry also. No Chief Justice, whether [it is the] Chief Justice of India or the Chief Justices of the High Courts, shares information on judges with the Registry. The information about declaration of assets by judges is personally kept with the Chief Justice of India and the [High Court] Chief Justices. The public will have a right to know these details if there is a legislative mandate. But at present there is no such legislation.

The Hindu
is a curious newspaper; its Editor in Chief, N. Ram, an unusual journalist. Supposedly a card-carrying member of the Communist Party of India (Marxist), he attended a closed-door meeting of the Catholic Bishops Conference of India along with a correspondent of a television channel some years ago. While his personal religious affiliation, if any, is unknown, his first and second wives are both Christian.

On 8 and 9 January 2009, prior to the publication of the Chief Justice interview, The Hindu carried another scoop – a two-part article by Justice Markandey Katju, on India’s ubiquitous caste system! A sterling intellect, the 1946-born judge had an illustrious career at the bar, was Madras High Court Chief Justice, and now a judge of the apex court.

But he is no expert on the caste system, and like the Chief Justice of India, he has violated the 1997 “Restatement of Values of Judicial Life.”

In an unprovoked and outright attack upon all Hindu society, Justice Katju avers: “The caste system is one of the greatest social evils plaguing India today. It is acting as a powerful social and political divisive force at a time when it is essential for us to stay united in order to face the challenges before our nation. It is a curse that must be speedily eradicated if we wish to progress.”

The overtly political nature of the article is easily gauged from the following excerpts:

? Our politics is largely governed by caste votebanks. When the time comes to select candidates for elections, a study is made of the numerical caste distribution in a constituency, because voters in most areas vote on caste lines;

? What to say of illiterate people, even the so-called intellectuals tend to operate on caste lines. Thus, in the elections to many bar associations, lawyers tend to vote for candidates of their caste;

? Many castes want to be declared Other Backward Classes (OBCs) or Scheduled Castes in order to get the benefits of reservation. Even some OBCs strive to be declared the Most Backward Castes (MBCs) or Scheduled Castes;

? Fake caste certificates have become rampant, as is often witnessed in our law courts, to secure jobs, or admission to educational institutions;

? Marriages are still largely performed within one’s caste;

? Even Muslims, Christians and Sikhs often have caste divisions, although their religions preach equality.

Then, pontificating on the origin, development and future of the caste system, the learned judge declares that the ‘origin of the caste system was in all probability racial. It is said that caste originated when a white race, the Aryans, coming from the northwestern direction, conquered the dark coloured races inhabiting India at that time, probably 5000 or so years ago.”

He is blissfully ignorant of the fact that even proponents of the Aryan Invasion Theory (AIT) are having problems defending this thesis in the face of irrefutable archaeological evidence to the contrary! He rebuts the assertion that groups migrated Europe-wards from India on the bizarre plea that no one would leave this fertile agricultural country!

Justice Katju relates caste with skin colour, and entrenches it in a superficial preference for fair skins! Why then are the most powerful Hindu divinities – Mahadeva, Krishna, Shani, Kali, Lakskmi – dark-skinned? He proceeds to confuse varnas with jatis, and it becomes rather painful to follow his sociological diktats. He does admit, however, that India was a rich nation with a global presence attested to by the discovery of Roman coins in south India , but calls this a feudal era for unknown reasons.

More disturbingly, Justice Katju promotes the Western Industrial Mythology that a population engaged in agriculture denotes poverty (when the evidence of history shows that agricultural India was one of the richest countries in the world!). He shows no awareness of the traditional link between agricultural surplus and trade/industry, much less of the fact that the delinking of the two is a fundamental cause of the current global crisis.

However, as Justice Katju believes in shunting population to industry and services, it would be pertinent to know if he supports the alienation of agricultural land for industrial purposes – as sought by certain State Governments, with controversial and painful results.

Justice Katju concludes his high-school sociology essay with a homily on the merits of inter-caste marriages, which he held to be in the national interest in his judgment in Lata Singh vs. State of U.P. [2006(5) SCC 475, JT 2006(6) SC 173].

All in all, the article does him no credit, and was best not written.

It would be injudicious to conclude this article without taking note of similar departures from convention by some Indian Presidents. In August 1998, President K.R. Narayanan had an hour-long ‘conversation’ with Mr. N. Ram, which was broadcast on national television and radio. Mr. K.R. Narayanan re-wrote the grammar of constitutional office in India when, as Vice President, he called the December 1992 dismantling of the Babri structure the “greatest tragedy India has faced since the assassination of Mahatma Gandhi;” and in 2002, as President, spoke out on the post-Godhra violence in Gujarat.

Now, on 11 January 2009, the illustrious N. Ram has successfully engaged President Pratibha Patil in ‘conversation.’ The nation may like to ponder if these departures from convention are at all a good idea, and why a particular media house is singled out for such consideration.

The author is Editor,

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