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Mainstream, VOL LVIII No 16 New Delhi, April 4, 2020

We beseech Your Lordship !

Saturday 4 April 2020

by Sardar Amjad Ali, Ex-MP

Needless it to say that one of most indispensable institutions of any civilised society is judiciary. With the advent of civilisation throughout the ages all over the world people have not only become right conscious but also developed indomitable zeal to resist any aggression against their rights they acquired through relentless struggle for a better life than they have left behind.

Even an insignificant individual would not of his own free will yield to the might of the most powerful. History has laid before us the example of ‘Magna Carta’, an illustrative product of people’s heroic battle and achievement against all powerful monarch of the day.

Riding back on the historical revolution of judicial institution, one has to recall the era of ‘Curia Regis’ or the Kings Court. The British system introduced by Henry the Second in the year 1154-1189. Justice administered by the ‘wise men’ of the empire, with the King as its ‘Headman’ was regarded as a ‘legal revolution’. It was so in the sense that primitive system of dispute resolution by a method of ‘Trial by Combat’ was replaced by selection of ‘wise people by the King Emperor. Further progress in the system, as it appears, that was hailed with the acceptance of the precept or King the law maker, the judges the interpreters.” None the less, those judges were the skeletons of a process of pleasure doctrine resting with the monarch, an everlasting dogma even in modern day’s judicial parlance with the change of the system of governance.

In justice delivery system, Independence of judiciary is one of the basic ingredients to cater impartial, unbiased and total justice to an aggrieved person. Needless it is to say that to achieve such fundamental object, the institution needs to be immune from the virus of any unethical influence from any extrajudicial authority viz.; the executive or the legislature. Themus, the Goddess of Justice, as the Goddess of Fairness too should dwell in the body, the mind and the entire self of Her Worldly representatives viz. the judges. Cascading God’s attributes flowing from that ‘Holiness’ to render relief to a victim of one’s unjust prejudice or ire should be the Divine virtue of a Judge and nothing else. This ethics that flew from the Greco-Roman Jurisprudential era till today, had been universally hailed as the Ethics of Judiciary.

It appears that this ethics was, by and large, religiously followed in British Judicial system and in American system too. Illustration is there where even a sovereign power was divested of its right to remove or denude the authority of a Judge without the approval of Legislature by taking to the route of impeachment. The ‘irreplacable rule’ of ‘pleasure doctrine’ was substituted by the principles of judicial scrutiny by adapting the basic principles of arbitrariness, reasonableness and usurpation jurisdiction.

Interpretation of law and administration thereof have remained an inaccessible zone of the realm of judiciary symbolising its blind sights, inanimate lips and tilt less scale of equanimity. Be it a case of espionage before the British House of Lords or the Pentagon Conspiracy of the American President.

Not only in academic sense but also in practical sense too, institutional sanctity is the core element required for unbiased acceptability of the verdict or decision of any service institution. Such prescriptions of sanctity may not always be found in the rulebook of the institution, but lie inherent in the human individuals who run it. Their actors, empathy, serious unbiased and rational approach to address the issues that lay before them for an acceptable solution lead to public assessment for recognition. Therefore, selection of not only suitable but proper personnel for is no less a challenging job to animate an institution in achieving its defined objectives.

In a democratic set up, propelled by varied class or political wish list, it is no doubt a difficult task to adhere strictly to the ethical/assessment of selectivity. But experience warns us to recall that departure from this cardinal principles lead to diabolic fallout. Though not always a routine or general feature. After all humans are not always endowed with all the heavenly attributes of Gods.

But normal human attributes can not be approved as too simple a golden rule in the process of selection of individuals in various service institutions, more so in judiciary. Since judiciary is the ultimate arbiter of disputes relating to rights, liberties and freedom of citizens as against the onslaughts of ires, arbitrariness, bias or illegalities, either of individuals or of the state, affecting one’s civil or any other personal rights, personnel spearheading the judicial institutions. Cannot be of average human clan. Francis Bacon, a noted jurist and philosopher observed very astutely:

“The place of justice is a hallowed place and therefore, not only the bench but also the footspace and precincts and purpose thereof ought to be preserved without scandal and corruption. In the process, therefore, selection of souls to be soulmates of the distressed requires an exercise with abundant caution. It is worth to recall what Justice T.S Thakur, one of the former Chief Justices of India observed:

“Honesty is not the monopoly of the judge’s only” – along with what Gokhale, one of the illustrious but forgotten nationalists of India. While debating on independence of judiciary in the Constituent Assembly said –

“Corruption and nepotism are not the views of the politicians alone.”
Be it on record again the voices of the ‘People’s Judge of India Justice V R Krishna Aiyar saying:

“Independence of Judiciary starts from the appointment of Judges”

And Justice Aiyar was selected by the political leaders consensually with the wisdom of judiciary from amongst a political clan. Not because he was a co-respondent to Marxist philosophy, an able finance minister of one of the member states of our Republic but because of his clarity of vision about corpus juris, integrity and unblemished moral and ethical character, uprightness, commitment to causes which he has to serve without fear, favour or flirtation. His wisdom and clear vision about our constitutional scheme, goals and unflinching faith in people’s power and respect for their rights dictated his conscience to record:

“The ultimate masters and donors of power to people.”

On social justice, this was the view.

“The court can not connive at a process which eventually makes fundamental rights as rare as roses in December and ice in June.” (Somprakash Rikhi Vs Union of India)” On personal liberty his observation (on question of jail or bail) was –
“Poverty is societal malady and sympathy, not sternness is the judicial response.”
The other Judge turned politician Justice Baharul Islam, elevated from Bar to Bench and then on resignation to represent Congress in the Rajya Sabha, then again on resignation from Supreme Court accepting the offer of National Congress to contest as its candidate in a Lok Sabha constituency may be mentioned. Personal liberty, though a gift of our Holy Book of the Nation, can seldom be appreciated if promiscuously practised. Yes then Justice Islam’s role as a Judge in the most scandalous case of Urban Cooperative Bank of Bihar where the Congress Chief Minister Jagannath Mishra was the principal accused can be referred as regards his sense of speedy justice as opposed to the dissenting view of Justice V.D Tulgarpurkar. Justice Islam did not favour a review of the judgement of the High Court and instead ordered for withdrawal of his prosecution as for him a review of the judgement on the face of available materials on record would have been a ritual while Justice Tulzarpurkar held a contrary view observing –

“Success at the hustings is no license to sweep all dirts under the carpet and enjoy its fruits nonchalantly”

Paying high tribute to Justice Islam, the then Chief Justice of Assam, Justice Bopana remarked –

“A parliamentarian should be a good orator and a judge, a good listener. He was both.” Justice Islam’s observation and ruling for pre-Triple Talak process of arbitration in a case later on became a pathfinder in the famous Triple Talak case by a bench of the Supreme Court presided over by Ranjan Gogoi.

It is said that before elevation as judge, Justice Tulzarpurkar was associated with trade union activities under a political party dealing with workers of the Merchant Navy of Bombay. He was then a legal practitioner.

Personal dossier of either Justice Islam or Justice Tulzarpurkar, though had political sheds, had never figured as a subject of public criticism as that of Justice Ranjan Gogoi. But before we tread over to that subject, let us, with respect remember a few of our former Judges with political clout who had enriched the judicial heredity of India with their invaluable contributions of legal wisdom and personal integrity, honesty and independent outlook, fearless personae.

Justice Fazl Ali, elevated from Bar as a Judge of High Court in the year 1943 and later on a Judge of Supreme Court in 1951 also served as Governor of Orissa in 1952 and of Assam in 1956 had, with distinction, elegance and dignity served the nation. As Governor of Assam, he brought the disgruntled Nagas in the mainstream of national life. Bold in his conviction, he, in A.K. Gopalan’s Case ruled that preventive detention without giving the detenue an opportunity of hearing was unconstitutional, a precept followed with esteem even today. Justice Ali is remembered till today as a judge whose robes had never been stained with dirt.

With deep respect we may also pay our homage to the 11th Chief Justice and 6th Vice President of India. Later Acting President of Independent India, Justice M Hidayatullah. It was he who ruled that Parliament has no power to cut down fundamental rights by constitutional amendments. Rising above any personal ego, Justice Hidayatullah could say:

“True that the Judges are the upholders of Constitution and the laws, are least likely to err but the possibility of their acting contrary to the Constitution can not be excluded.

All those Hon’ble judges of whom I have made honourable mention, were appointees of the Govt. of their times when the Selection process was not as rigid as today. Under a system known as Collegium system, a new incumbent is selected by the olds in their antechamber in Camera. Even a sovereign government elected through peoples mandate enjoys a limited, in effective veto power to undo a selection, even though the appointing authority is the President of the Republic. An obstinate collegium, recommending the incumbent even after rejection or request to revisit the recommendation of the selectee wins over the might of the sovereign government thereby compelling the hapless President to sign on the dotted line. ‘Independence of Judiciary and its supremacy in peril’ is the bogey that vibrates in the wide corridor of our temple of justice if the system is sought to be substituted by any other transparent system.

“Judicial Independence was not intended to be a shield from public scrutiny” – a maxim remains in letters than in action!

Justice Ranjan Gogoi (Retd.), recently nominated by the Hon’ble President of the Republic to add to his privileged quota of to be nominated in the House of Elders of the Indian Parliament as one of the rare species possessing special talent in human attributes was nonetheless a selectee in judiciary through the same collegium system.

During his long 20 years tenure as a Judge since 28.2.2001 or as Chief Justice of Supreme Court since 3.10.2018 to 17.11.2019. Justice Gogoi (Retd.) had made hardly any impressive impact until as one of the members of a Judges Consortium of 4 Supreme Court judges, in an unprecedented media conference in the official residence of Justice Chelmeswar he also sung the swan song of levelling charge of unethical determination of benches for adjudication of important cases relating to important public interest and thereby besmearing the sanctity, probity and independence of judiciary by Justice Dipak Misra, the then Chief Justice. He, along with other judges was of the view that Justice Misra was favouring the Govt. by using his office for oblique purpose.

His other 3 colleagues on retirement left their offices on retirement with dignity and honour; Justice Chelmeswar having gone back to his traditional farming in his native village. But did he?

On his retirement, Justice T.S Thakur, a former Chief Justice of India was offered a Rajya Sabha nomination but he did not oblige the President. Could Justice Gogoi do it?

In his interaction with media after taking oath in Rajya Sabha, Justice Gogoi was adverting to his own standard of functioning as a Judge. Did Justice Gogoi hear the voice of Justice J B Thomson, Judge of Australian Supreme Court saying:

“Some standards can be prescribed by law, but the spirit of and the quality of the service required by a profession depends far more on its observance of ethical standards. These are far more rigorous than legal standards.”

Justice Gogoi, either as a Judge or as an honourable member of Parliament is certainly answerable to the nation about his perception to one of the most important cardinal canons of Judicial ethics:

“A judge must respect and honour his judicial office. It is an institution of Public trust and he must endeavour to leave such office with higher respect and public confidence then he inherited.”

After the judgements delivered under his Presidency of the benches, occasionally unanimous, sometimes with dissent, in cases like Tin Talak, Ram Janmabhoomi, Rafael, NRC in Assam with him followed with an image of a brave, upright, clean and unbiased Judge after he left his office and obliged the nomination recommended by a Govt. who, according to him was arm-twisting the judiciary. When Justice Dipak Misra was warning the seat he occupies for about 19 months ?

Justice Gogoi, Rajya Sabha who’s who diarise some of your former colleagues from the clan from where you descended in that august body. They are Sir Alladi Krishnaswamy Aiyar, Dr B R Ambedkar, M.C Setalvad, Justices M Hidayatullah, Fazl Ali, Ali Carim Chagla, K M Panikkar, Foli Nariman, Ram Jethmalani, K Parasaran, K T S Tulsi, to name a few. Did anyone come with a stigma of molestation of a woman employee, dismissed from service by her employer like you while in office and reinstated with remittance of their respective offices ?

The nation wants to know who are those unnamed 5 of the half a dozen persons, according to you were out to destroy the independence of Judiciary ? You have named only Kapil Sibal, an opposition MP! Justice Gogoi when would appropriate time according to you come to make nationwise above those conspirators”?

The internees in the profession would like to know from you, Justice Gogoi your reaction to what Late Arun Jaitley once observed:

“Pre-retirement judgement influenced by post retirement job.”

Justice Gogoi, you are aware of what Alexander Hamilton, one of the founding fathers of American Constitution said:

“Judiciary is the weakest branch of the state as it has no sword, nor purse.” And Parliament has both sword and purse.

A judge, after all is no God, but a human being, as Justice Gogoi told the media.

Rightly did Edmund Burke in House of Lords say: “Life is based on exchange and barter”

— - The writer is a former Congress member of Lok Sabha and Rajya Sabha and senior Advocate of Calcutta High Court

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