Harpreet Singh Giani
Caesar’s wife, it was said must be above suspicion.
History tells us that after Publius Clodius Pulcher was prosecuted for gaining admittance to Pompeia’s house with the intention to seduce her, Caesar divorced Pompeia, saying that “my wife ought not even to be under suspicion”.
Received wisdom tells us that Caesar found it irrelevant that Pulcher was acquitted of the charge. He believed that it was impermissible for Caesar to remain married to anyone remotely connected with a scandal.
Contemporary wisdom has taken the idiom and turned it on its head.
Contemporary wisdom decrees that just because she is married to Caesar, his wife must be deemed to be beyond any suspicion. Her status as Caesar’s consort places her above and beyond suspicion. To suspect her, would be to suspect Caesar, unthinkable and blasphemous.
It used to be the integrity of the individuals that gave an institution its dignity and respect. If the leadership of an institution was trustworthy, the institution would be trusted. If the successors were unfit, the institution was distrusted. The reputation of the institution was rightly transient, being as good or as bad as the persons who controlled it.
Today, we are told that securing a place in a historically-venerated institution entitles a person to be absolved of all his sins, he or she must be elevated to Godhead and regardless of his personal qualities or fallibilities, he must be deemed to be beyond doubt and unamenable to scrutiny. The institution is now the protector of the virtue of the man, rather than the other way around.
The Supreme Court of India is just one of the institutions making up the Indian constitutional system. In conjunction with the legislature and the executive, the judiciary is equally responsible for preserving and perpetuating the rule of law within the country.
Despite their enthusiasm and unbridled optimism, the Constituent Assembly that gave us the voluminous 1950 Indian Constituent could neither predict, nor provide for every eventuality or challenge that an inchoate and unfolding future held. Yet the document they produced was crystal clear in the division of powers – the legislature was to make the law, the executive to enforce it and the judiciary to adjudicate any disputes.
India never understood the boundary that separates the executive from the polity, or the legislature. But that is a lament for another day.
Successive generations of ignoble legislators had conspicuously failed to address the emerging gaps in legislation and this resulted in gaping voids in our legislative schema. While the Constituent Assembly had men and women from the learned professions who understood the nuances of juridical and legal drafting, lamentably today the Parliament and legislatures provide retirement sinecures for actors, sportsmen and others, who possibly could not be expected to legislate for the nation.
Conveniently, though inappropriately, the judiciary has repeatedly stepped in and backfilled the legislative voids. These unwarranted and unwholesome forays by the judiciary into the domain of the legislature were tolerated and even welcomed, from the great reliance the nation placed on the integrity and scruples of those who sat on the Supreme Court bench in the early day. The initial transgressions were properly out of dire necessity and expressed by those judges as temporary measures, in anticipation of responsive legislative action.
This has degenerated now into a system where using the optimistically-sounding phrase “Judicial Activism”, the Supreme Court has trampled recklessly even in those areas which are taboo even for the Parliament.
India today regards the Supreme Court as the above-suspicion Caesar’s wife – the nouveau version. Just because a person has risen to the top and secured a place on the bench of the highest court, he or she is invested with an impenetrable armour of protection which allows not for transparency, probity or criticism.
When a litigant tries to secure a friendly judge to hear his case, he is accused quite properly of forum shopping or bench fixing, and is sanctioned for his sins.
We do not yet have an equally appropriate verbiage for judges who handpick other judges to inquire into their alleged sins. Yet, we live in a world where although a litigant may not demand to be heard by a particular judge; yet a sufficiently senior judge can arbitrarily select his inquisitors.
Not too long ago, when the vexatious question of dishonest judges surfaced, the Supreme Court leapt to the defence of its members, and those of the High Courts. In a deplorable and dangerous departure from the Equality and Natural Justice principles, the Supreme Court decreed in the Veeraswami case [1991 SCC (3) 655] that a police officer, who was otherwise obligated to inquire into any report of a criminal offence, would be barred from investigating a judge of the Supreme Court or of the High Courts.
Unless the investigator sought and secured the consent of the Chief Justice of India. Or if the accusations were against the Chief Justice of India, any other judge(s) of the Supreme Court.
The result was that even if there was credible prima facie evidence suggesting a judge’s involvement in a criminal activity, the investigator was barred from proceeding with the investigation. And happily, if the investigation was an impossibility, there could be no question of a prosecution taking place.
The only way to investigate an allegation of misconduct or criminality was the purely extra-legal and arbitrary gatekeeping mechanism invented and imposed by the Supreme Court. There was no legislative sanction for this abrogation of the criminal laws or the criminal procedural codes. But because the Supreme Court had (surprise surprise) usurped the power to protect its own. Of course, no one spelt out who the judges needed to be protected against. For even if the most malicious untruthful politician, minister or officer or citizen made allegations against a constitutional court judge, the uniform laws would be sufficient to protect the judge and find him innocent.
But it was more expedient for the Supreme Court to legislate for its own benefit. And though the intention back then may have been innocent, it has resulted in a free cheque for any judge who might wish to get creative.
I cite three specific cases to highlight the incestuous misfeasance of the top court, the abject failure of the executive and polity, and the cowardly blackout by the media.
The first case is the suicide of Kalikho Pul, the former Chief Minister of Arunachal Pradesh.
Kalikho Pul committed suicide. He tied a rope around his neck and killed himself. But moments before his hyoid bone and thyroid cartilage fractured, he had written and signed multiple copies of a voluminous suicide note. In his suicide note, Pul gave reasons that had driven him to this extreme step: he described in great detail the high corruption that had resulted in his unseating. He provided extensive details of lawyers, politicians and judges who had extorted, or wanted to extort bribes from him. He talked of his disgust with the cabal of lawyers and judges in the Supreme Court which operated with impunity.
A suicide note, successive generations of judges have ruled, is not merely a stray thought or capricious action of a person. When someone who has been driven to killing himself, in his last moment writes something, it commands credibility and requires the highest level of scrutiny. The law recognizes that whilst base motives might induce someone to swear a false affidavit, a person who is sufficiently upset or disturbed to contemplate suicide would generally write down an accurate version of his side of the story.
Death bed declarations and suicide notes are presumed to be truthful and historically they have provided firm foundations for a robust investigation.
If Kalikho Pul had not named two sitting judges of the Supreme Court of India, the police authorities would have been obligated to investigate the matter. If upon investigation they found the allegations to be substantive and credible, they would have had to prosecute all those who were indicted by Pul’s dying words.
But now since Veeraswami provides an extra-statutory, extra-legal and extraordinary protection to the constitutional judges, the police are compelled to sit on their hands and wait for the Chief Justice’s consent even to begin investigation.
As it turned out, the Chief Justice was himself named in Pul’s suicide note. Also, the next senior-most judge, as also the then President of India.
Any sensible interpretation of Veeraswami would inevitably have required the next senior-most judge to perform the gatekeeping function automatically. This was not allowed to happen and the investigation request was never actioned. When Pul’s kin petitioned the Supreme Court (something that they ought not to have been compelled to do in any decent legal system), the matter was listed before a carefully hand-picked junior bench. This bench minced no words in indicating its inclinations and its reluctance to accept the petition demanding a fair investigation into Pul’s allegations. The unusually and refreshingly bold counsel for the Pul family chose to withdraw the petition rather than become a bit player in this farcical charade.
Pul’s ghost still awaits justice.
The second case was about the much-touted in-house inquiry system again arbitrarily legislated by the Supreme Court to protect its own. The Supreme Court has decreed that contrary to the statutory laws of India, any allegations of corruptions against constitutional court judges will not be investigated by the proper law enforcement agencies, rather by an in-house panel consisting of other judges.
I do not even wish to go down that rabbit-hole and talk about pre-judging investigations. I need not speculate here about the helplessness of an investigator who is presented a report by a panel of judges (who are neither trained, nor lawfully competent to act as inquisitors in the Civil Law tradition) clearing or damning their own colleagues. The report would effectively close the chapter and denude the investigators their lawful right and obligation to investigate. And even if some investigator were foolhardy enough to press on, where would you find a trial judge willing to overrule what his overlords had decreed?
And so, case number two.
An in-house panel comprising of three sitting High Court Chief Justices was tasked with investigating allegations into malfeasance by some judges. Troublingly, the panel soon found itself confronted with material that pointed to the possible involvement of members of the Supreme Court as well. Not willing to stick their necks out that far, the panel wrote to the Chief Justice of India asking for advice. Should they expand their mandate and should the judiciary’s in-house panel boldly follow the allegations wherever they led, or should they shield their overlords’ potential caprice by blocking their ears and blinding their eyes?
The three Chief Justice are, I believe, still waiting for a reply from the Chief Justice of India.
So, the Supreme Court will not permit the law enforcement agencies to investigate, preferring their self-serving in-house mechanism. And when the in-house mechanism throws up disturbing information, the in-house will be relegated to the outhouse.
The third is the most egregious of all cases.
A petition was brought before Justice Chelameswar, the second senior-most Judge of the Supreme Court. He was told that there were allegations in a particular matter, which involved potential misfeasance (and probably malfeasance) by the Chief Justice of India.
Justice Chelameswar, the media gleefully tells us, thought that the matter was too sensitive to be swept under the carpet, and too important to be decided by the bench he was heading that day.
Even whilst this unprecedented drama was unfolding, the Chief Justice of India was busy in hearing a Constitution Bench case at that moment. In ordinary course when the Chief is preoccupied, his administrative duties are gladly invoked and duly discharged by the next senior-most judge. In this case, Justice Chelameswar had been acting as the Master of the Roster pro tem for some time as required, since the Constitution Bench could not be interrupted.
Even as Justice Chelameswar ordered the petition to be listed before a constitution bench comprising of the five senior-most judges of the Supreme Court (including the CJI), the Chief Justice sent him a written note through his minions, asking him not to proceed with the matter.
Let us get this straight – the Chief Justice of India ordered the next senior-most judge of the Supreme Court of India, not to list the case which touched on allegations of impropriety against himself, before the top five senior-most judges of the Supreme Court of India. And for this purpose, the Chief Justice broke up the Constitution Bench that afternoon.
We are now treading in unknown terrain, sailing in uncharted waters. The Constituent Assembly could not have foreseen a situation where a Chief Justice of India is afraid of a matter in which he is named, being heard by his senior-most brethren, and misuses his authority to prevent it being listed before the senior-most judges of that court.
The Veeraswami bench could not have foreseen that their questionable (though possibly well-intentioned) attempt to provide a limited extra-legal, extra-statutory and extraordinary protection to constitutional judges could be perverted capriciously by a Chief Justice, to block even the pretence of a fair examination of fairly serious allegations.
The Chief Justice of India effectively proposed, seconded and approved a no-confidence motion against the five senior-most judges of India and barred them by an injudicious judicial order, from hearing the case.
He chose to hide behind a conventional common-law principle, Master of the Roster. The concept of Master of Roster is unknown to the Indian Constitution or to any law made by Parliament. It is a practical administrative power commonly exercised by the Chief Justice (of a High Court or of the Supreme Court) to set up one or more benches and to assign particular kinds of cases to them, for ease of business.
The Master of the Roster principle is to be found neither in law nor in the constitution. Yet the Chief Justice found it convenient to effectively find that this principle could overrule the constitutional authority of the judges of the Supreme Court. As Master of the Roster, he could withdraw (mid-hearing) any case from any judge of the Supreme Court (or the High Court), assign it to a judge or judges of his choice. As Master of the Roster, he deemed that he could deny all those judges who were not convenient, their constitutional powers, authority and duty to act as judges of the Supreme Court. As the Master of the Roster, a Chief Justice he could potentially refuse to assign any work to any (or all) other judges and become a one-man court.
But surely, you’d think, such an abuse of power would be unlawful and would expose the Chief Justice to investigation, sanctions or even impeachment?
And you would be wrong. Because Veeraswami (as it is currently being misused) gives the Chief Justice the power to block even the initiation of an investigation. Through decades of tactical judicial adventurism (amusingly called activism) the Supreme Court has arrogated to itself immense extra-legal powers including the powers to block any attempts by the executive or legislature to look into its affairs.
The NJAC experiment by an unusually optimistic and bold government was effectively vetoed by the very body that was the subject of the legislation.
Cumulatively, the Master of the Roster myth and the Veeraswami judgment, provide blanket immunity to the Chief Justice and all those other judges who enjoy his grace. Someone who has by dint of seniority, even absent of any judicial acumen, risen to the top office can afford to be brazen in his abuse of power, in doing anything that he or she liked and there is nothing that anyone can do about it.
The last time this magnitude of power was arrogated into a single set of hands and this level of caprice was on public display, Cromwell’s court tried and executed the King.
“The land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it.”
Book of Numbers, chapter 35 and particularly verse 33
You may think that the rape of the judicial system must surely dissonate with those who have lived in the court corridors all their life. Lawyers and law ministers who have dedicated their life to the law, and who proudly acknowledge being grandees of the Indian judiciary must have strong misgivings about this sorry state of affairs.
Once again, you would be wrong.
The lawyers who love being feted and called grand institutions or pillars of the judiciary are too clever to annoy those that patronise them. This is one more set of incestuous relations that afflict our judiciary.
Lawyers who may have been Honourable Men in the past, but who are now old and feeble depend on their past glory to obtain new clients, and they continue to sail their ships on yesterday’s wind. They need these judges to acknowledge their presence in court, to pretend to be overawed by their incisive knowledge of law and their nuanced advocacy – and ultimately to decide the case in their favour so they can justify the extortionate fees that they charge.
The judges correspondingly need these grandees to issue for them on-demand, certificates of honesty and integrity that they can use to discredit their detractors, and brazen through any rough weather.
Recall that as his parting gift to International Law, the then outgoing US president Bill Clinton signed the Rome Statute of the International Criminal Court in 2000. He decisively brought the United States of America within the pale of the International Criminal Court.
One of the first acts, equally decisive, of the incoming president, George W Bush was to unsign the Rome Statute.
International Law scholars had never seen, never heard of an unsigning. Yet it took very little time for convenient international law scholars to introspect and to dig out and discover that yes indeed, this hitherto unknown concept, had existed in international law all along. Much to the chagrin of the European and Asian international law specialists, the US academicians wrote reams on the existence and availability of this particular beast.
Similarly, with each egregious violation of the constitution and the aspirations of the Constituent Assembly, the likes of Fali Nariman, Soli Sorabjee and Upendra Baxi find that contrary to what they had believed and written the previous day, they have suddenly discovered that what has happened today, has sufficient legal basis and justification.
These are old men, with failing faculties and who have nothing but their former glory to support them for their remaining journey. If I were being generous, I’d forgive them their ability to somersault with such agility, and twist and turn to support whichever ridiculous narrative they are called upon to support by their patrons.
But I find it inexcusable that in our hero-worshipping society which considers them to be men of integrity and principles, they have compromised their virtue and allowed their pens to be guided by baser motives.
The need for self-aggrandising, the need for self-preservation, the need for filthy lucre makes for strange bedfellows. Nariman and Baxi who were at each other’s throats for the last many decades – these two who have written against each other with quills dipped in acid, these two who would not be seen dead together, now find themselves falling agreeing and singing from the same hymnbook. They are falling over themselves to prove their loyalty to the throne which bestows favours on them.
Twenty-five years after the judgment the Bhopal Gas Tragedy case where he was the counsel for Union Carbide, Fali Nariman apologised for his role in his autobiography. In an interview to The Hindu on the 27th of June 2010, he said if he could go back in time he would not have taken up the case. He said he would not have taken up the case [b]ecause I thought this was one more case which would add a feather to my cap. I mean one is always ambitious at that age. But I found later – but then it’s too late, one can’t walk out of the case one has already taken up – that it was not a case, it was a tragedy. And in a tragedy, who is right, who is wrong etc., all becomes marred in great deal of justifiable emotion.
It took Nariman Twenty-five years to express regrets at his role as the champion of the villain in that tragic avoidable disaster. One quarter of a century, to look back and admit that he was only concerned about adding feathers to his cap. One wonders how many years it will take, indeed how many he has left, to look back wistfully at the tainted feathers he is now earning for his role in justifying the unjustifiable.
Nariman’s must be ruing the day he published his autobiography because it makes it so convenient to confront him, like a shifty witness in the dock, with his own contradictions. The 2017 Nariman decries what he feels are attempts to browbeat the Master of the Roster into picking (or refraining from picking) particular judges to a bench. The 1975 Nariman had no such qualms. In his biography, Nariman rejoices (at page 169) at his success in convincing the former Attorney General CK Daphtary to go to the Chief Justice AN Ray to intercede with the chief justice so that we did not get a ‘hand-picked bench. He then goes on to exult The bench was ultimately announced, and we were all pleasantly surprised that it was not hand-picked; it comprised the five seniormost judges of the court.
With barely concealed glee, Nariman recounts I never asked Chandubhai whether he (or who had questioned Chief Justice SR Das about the composition of the bench in the past, because I suspected (and I still do) that no one ever had, and that this ‘ploy’ only came to CK in a flash. But it worked!
So when Nariman teams up with cohorts to pressurise the Chief Justice, its fair game, since the bench was no longer ‘hand picked’, rather comprising of the five seniormost judges of the court. But when Justice Chelameswar eschews any hand-picking and simply sends the case to the five seniormost judges of the court, Nariman suddenly has a problem and prefers to let the Chief Justice handpick those who must gatekeep a matter in which he has been accused in open court.
I suspect that Nariman would make a fine addition to the next gymnastics team that India fields for the Olympics. To be able to twist and somersault at this age is no mean feat.
Students of contemporary juridical history would also remember Soli Sorabji as the one who went into Chief Justice KN Singh’s court to persuade him not to hear a particularly notorious case since there he had become aware of rumours that Chief Justice Singh had cut a deal in that case. Yet in fulfilment of his self-prophesy, Sorabji’s memory too seems to have failed, and his professed concern for the institution seems hollow.
The media is too scared of the Chief Justice to write or broadcast of course. If the Chief can denude the top judges of the Supreme Court of their constitutional powers, he will have few qualms about sending them to the goal for any number of perceived contempts.
Just like we saw American jurists find ex post facto legal basis for unsigning, we have apologists for the Master of The Roster finding and providing farcical explanations and justifications. And for this, I blame the other judges of the Supreme Court.
By pretending to hide behind notions of sanctity of the institution or conveniently using self-restraint as the coward’s shield, all the judges – Justice Chelameswar and Justice Gogoi primarily – are allowing themselves to become a part of this slapstick.
Their silence has emboldened the apologists to change the narrative. The story is no longer that the Chief Justice of India hand-picked the bench which would exonerate him. The story has now become one of Prashant Bhushan’s deceit in not informing Justice Chelameswar that a similar petition had already been heard elsewhere. By painting the first puisne Judge of India as an innocent ignoramus, they conveniently sidestep the blatant forum-fixing by the Chief Justice. They conveniently ignore the rape of the basic principles of justice that no person shall be a judge (or by extension appoint his nominee as a judge) in his own cause.
The apologists also ignore rather too conveniently the fact that the Chief Justice has interfered in the judicial functioning of another court.
Not one of these apologists have asked what happened that day. How did it happen that the Chief Justice initially ordered the case to be withdrawn from the top-five judges of the court and instead to be listed before a bench of seven hand-picked judges? How did he arrive at the magical figure of 7 judges? What was the reason for this withdrawal? What indeed was the reason for picking those specific seven judges that he nominated?
And it gets curiouser and curiouser. Despite the case having been listed initially before a seven judges bench, two of the judges failed (or refused?) to turn up and the case ended up being heard on the fly by a bench of five. Who were the other two? What was the reason that they declined to become a part of this questionable enterprise? And why haven’t they broken cover and come out to express their private misgivings in public?
I do not believe that the shenanigans going on in the secretive chambers of the Supreme Court judges are private. They are important developments and things that must be disclosed. These are vital affairs on which the light of day must fall.
But until that happens, the Master of the Roster gets to make up the rules as he goes along. He can withdraw a case from a bench comprising of five senior-most judges, send it to a handpicked bench of seven junior judges. And then when two of the chosen ones refuse to play ball, arbitrarily turn it into a bench of as many as were agreeable. And then he gets to give an indecent burial to the matter.
This is bench fixing.
This is judicial impropriety.
Res ipsa loquitur, as my law teacher used to tell me, The Facts Speak For Themselves.
Now which fifty members of Parliament are going to find within themselves the courage and guts to sign the requisition that kicks off the impeachment process?
Harpreet Singh Giani is an Advocate (in India and Dubai DIFC) and a Barrister (England & Wales). He based out of London but practices law in all three jurisdictions.