OPINION: THE PIVOTAL ROLE OF CHIEF JUSTICE OF INDIA

OPINION: THE PIVOTAL ROLE OF CHIEF JUSTICE OF INDIA

Humble submissions (in red) to Mr Jaitely’s public opinion on the present case about harassment charges against the CJI

-by Pritika Kumar and Ishita Bisht

The pivotal position of the Chief Justice of India

The incident of a junior ex-lady employee of the Supreme Court making harassment charges against the Chief Justice of India has acquired a disproportionate magnitude. Such complaints, when they are made in the ordinary course of any administrative functioning, are referred to the appropriate Committee.

The ‘ordinary course of administrative functioning’ sir has been a matter of much concern for all of us. In our view “the appropriate committees” everywhere appear to be influenced and not independent.

We take your point Sir, but it will be unjust to ignore the position in which the complainant is. The lady complainant was a regular staff of the Supreme Court. If her complaint was against a lawyer or a staff member of the Supreme Court, she could have been questioned for not filing a complaint before the Gender Sensitization and Internal Complaints Committee (GSICC) – the anti-sexual harassment committee of the Supreme Court. However, since the GSICC does not have the power to investigate allegations against judges of the Supreme Court, this would have been a futile exercise for her. Also, consider the fact that the GSICC is required to take the recommendation of the Chief Justice of India before it can even take an action or step against the accused. It cannot be expected that the Chief Justice of India gives a self-incriminating order. Having said that, it can also not be permitted that a person acts as the judge of his own cause – ‘Nemo judex in causa sua’, a foundational doctrine of our legal system.

Sir, you would appreciate that due to the peculiarity of this case, a complaint filed in the ‘ordinary course of administrative functioning’ would have closed the possibility of justice for the complainant. Also, sir – ‘procedure is only the handmaiden of justice’. What is most important is that justice be served to the innocent party.

However, when the complainant distributes copies of her representation to other Judges of the Supreme Court and the media in order to sensationalise her allegations, it ceases to be routine.

Given the facts and circumstances of this case we are not sure as to how else she would have found an audience. In our view, she did nothing wrong.  By accusing the complainant of “sensationalizing the issue” you have sat in judgment of this matter by yourself. Also, the idea of independent media does not confer with “sensationalizing issues” and that’s why it is “independent media”. Sir, sometimes a common person has to take the aid of the fourth pillar of democracy – the press – just to be heard. You will appreciate that this does not guarantee justice for a person.

When four digital media organisations with an unparalleled track record of ‘institutional disruption’ send similar questionnaires to the Chief Justice of India, there is obviously something more than what meets the eye.

What do you mean by ‘institutional disruption’ here? We are surprised that you have used these words with such distaste because from what we have heard you have been an ‘institutional disruptor’ yourself which is why we have great regard for you. We need ‘institutional disruptors’, especially when the institutions have failed or are failing or showing signs of failure.  India’s freedom struggle was also an ‘institutional disruption’ in its own right. Bhagat Singh, Mahatma Gandhi, Subhash Chandra Bose are all institutional disruptors. We need them because it is through such disruptions that institutions grow, improve and stabilize.

India has always taken pride in its independent judiciary.

Don’t all developed countries strive to have an independent judiciary? Do we really have an independent judiciary? As independent, keen observers of the court we are starting to doubt the independence of the judiciary. With all due respect, it is strange that the last chief justice and the current one, both come from politically influential families belonging to the congress. Shouldn’t there be a few degrees of separation between politically connected families and the judiciary for the system to become truly independent.  

Judges decide cases which deal with life of the common man as also the most powerful commercial and political interests. Agreed, but sadly in our view we have seen some of the most fantastic judges getting posted out of writ courts because they were doing justice. Please correct us if we are wrong here. Also, if our perception about this issue is wrong then please counsel us and we will be happy to learn that we are wrong.

A judge is not in a popularity race. Agreed, should not be.

He owes his commitment only to law, Justice and fairness. Should be the case but we are not sure if this is universal practice. There are several precedents that support our reservation, not only in India but globally.

A Judge is neither to follow the ballot box nor is he to be swayed by the times. His judgement pleases us at times and leaves us unhappy on many occasions.

Sir, we are always pleased when the judgment is right. Sometimes the correct decision is obvious through a literal reading of the law. Only when the judge acts otherwise are we unhappy (for example when matters are dismissed without a well-reasoned order, and sometimes not heard for days even when counsels are prepared).  Lawyers almost always know when their clients are on the wrong side. You would agree that for those who read and work hard they can almost always tell the difference between right and wrong.  Also, if judges were always right there would be no system of review, revision and appeal. But that is the reality of the system which we have learned to live with.

The Chief Justice of India is the first amongst the equals in the Supreme Court. He is the head of the judicial institutions. He is both the ‘Master of the Roster’ and the ‘Head of the Collegium’ which makes binding recommendations for the appointment of judges. Agreed.

His integrity, ethics, scholarship and fairness reflect the image of India’s judiciary. He lives by example. For both the Chief Justice and the judicial institutions, credibility and respect are essential. By not following the basic tenets of ‘natural justice’ and ‘due process of law’ in the conduct of proceedings in this matter, sadly, he has abused these essentials.

Once the ‘Iqbal’ of judiciary is destroyed, the institution itself will crumble. One man, his acts or misdeeds cannot destroy the idea of justice upon which the institution is built. Hence, the judicial institution will never crumble because of the failings of one man. Having been an officer of the court yourself and a great one that too – we expect you to condemn the wrong doer. We must protect the purity of the office.

The assault on the institution

It was in the decade of 1970s that we witnessed supersession of judges, intimidation of courts and transfer of High Court Judges. This was coupled with appointment of politically and ideologically inclined judges in courts. Post the 1982 judgement in the first judges case, the appointment of politically affiliated judges continued in several High Courts. This process substantially stopped after the 1993 judgement in the second judges case. The process substantially stopped? Does it mean that there are many in the higher judiciary today who are a result of this process? Or those who have benefited because of this process and now stand in silence and, perhaps in obligation to political favours. Could it be that the current chief is a result of this process?  We surely hope not, but young members of the Bar would really like to know.

The last few years have witnessed the consolidation of ‘institution destabilizers’ in a major way. Many of these destabilizers represent Left or ultra-Left views. They have no electoral base or popular support. However, they still have a disproportionate presence in the media and the academia. When ousted for mainstream media, they have taken refuge in the digital and social media. They continue to believe in the old Marxian philosophy of ‘wrecking the system from within.’ They use free speech to destroy the judicial institution. Although we agree with you to an extent, but this submission in relation to the matter at hand, is not very convincing. Also, we don’t think that ‘independent media’ is trying to destroy the judicial institution. We are all in it for the love of it. We all love the idea of justice.

This section has found a convenient ally in a small but vocal section of the Bar. Thank god for the vocal section of the bar. How else should a bar be?

This section exploits the judicial refrain of excessively using the power of contempt. Let the judges decide when they want to use the power of contempt. We see many judges using it when there is need.

However, they themselves have no hesitation in contemptuous behaviour themselves. They go public against individual judges, including the Chief Justice, when they fail to get a favourable order. When the highest judicial offices don’t listen to you what other option does a common person have? In fact, even the current chief chose to go public last year against the conduct of the then sitting Chief Justice. We see nothing wrong with this approach. Everyone has to be kept in check and that is why an independent media is important. Nothing is greater than the voice of the people.

They carry on social media campaigns against judges who write judgements adverse to them. They have little regard for truth but masquerade as protectors of public interest. While we agree with you to an extent, but this submission in relation to the matter of sexual harassment allegations against the Chief, is not very convincing.

Their behaviour in courts is offensive both to the Bench and their opponents. They threaten walkouts if judges are in disagreement. There may have been some instances of such behavior, but like the judges fail sometimes, so do the lawyers.

Even though most of them subscribe to fringe ideologies and ideas, it is regrettable that a section of the Members of the Bar affiliated to the Congress Party tend to join them. Many of us are supporters of the BJP and recognize the great work its doing across sectors – Banking, Telecom etc. but with all due respect sir, this is not a matter that should be politicized and trivialized. This is a matter regarding serious allegations of harassment faced by an ex-employee and her family wherein principles of natural justice and due process of law have not been followed by the highest member of the Indian Judiciary.    

Frequent attempts are made to get some Parliamentarians to sign Motion of Impeachment against judges and even the Chief Justice on unsustainable grounds. The remedy of impeachment exists because the possibility of abuse of office exists. What has always puzzled me is the Congress lending support to such fringe campaigns. If the office holder is wrong, we expect the ruling party to support such actions (only to strengthen the ideals of justice). As supporters of BJP, we also expect BJP to do the same where satisfactory grounds exist.

The power of contempt

The power of contempt is intended to protect the dignity of the Court. However, the power of contempt is rarely and sparingly used. Ordinarily, courts tend to ignore contemptuous criticism. Courts are willing to accept a criticism of judgements because that aids the process of legal evolution. The liberal attitude of the Courts has emboldened the ‘institution disruptors.’ At the end of the day, they get away because of the magnanimity and the compassion of judges. It is the spirit of ‘institutional disruptors’ that has resulted in us becoming an independent nation which supports the idea of an independent judiciary. We respect the balanced use of power by the judges in our country and hope that this continues to be the case.

Independent judiciary and free media are both essential for a vibrant democracy. Agreed.  Both have to live with each other. In order to co-exist, both must respect the respective rights of each of these institutions. One cannot take upon itself the task of destroying the other. Ever since 1950, every judgement of the Supreme Court relating to Article 19(1)(a) has favoured the strengthening of free speech. The reverse is not true. Mainstream print media conventionally had greater editorial control. The ability to dissect facts and take a balanced view was much higher. But of late, the rat race for grabbing eyeballs or viewership has begun. For the ‘institutional disruptors’ there are no red lines. This can be debated another time.

The history of the last several year shows that cases after cases have witnessed facts being manufactured and twisted. This falsehood found support in a section in the media. Upon deeper analysis most of them were found to be factually incorrect. Facts were manufactured. The same ‘gang’ was behind this campaign. Are you suggesting that the complainant has falsely manufactured the case? What are the basis of your suggestion?  You are sitting in judgment of the matter even before it has been decided. What if the complainant is proved correct?

The present case

A Judge is continuously judged every day by the Bar and the stakeholders in the course of his personal and judicial conduct. Every time he makes a comment or writes a judgement, every word is scrutinised. In terms of personal decency, values, ethics and integrity, the present Chief Justice of India is extremely well regarded. Even when critics disagree with his judicial view, his value system has never been questioned. Lending shoulder to completely unverified allegations coming from a disgruntled person with a not-so-glorious track record is aiding the process of destabilisation of the institution of the Chief Justice of India. With all due respect sir while we respect your love for the Chief Justice of India, we do not approve of the imputations that you have made against the complainant without any evidence. Let the duly constituted panel of the judges hold inquiry and come out with their findings.

India has witnessed a series of attacks by the ‘institution disruptors’ against judges who are unwilling to agree with them. It may not be an exaggeration to say that today both in Court and by creating an environment outside, a mass-intimidation of Judges is on. We don’t agree with this submission. In fact, we have observed that not such great judges are presiding over important constitutional issues and some wonderful judges are being rotated out of the writ courts. We can give you several examples.

Some lawyers have used intimadatory behaviour as a tactic to expand their practise.  Intimidation and discrediting are important weapons in the hands of these people. Could you please tell us who these lawyers are and don’t most senior lawyers (no matter which gang they are a part of) use this as a tactic they often refer to as “court craft”.

Reputation is an integral part of a person’s fundamental right to live with dignity. So please grant the complainant this right too. An intimidated judge can fear consequences of a possible view that he is taking. Hmmm… haven’t all governments been guilty of intimidating judges to some extent or the other. We have heard all sorts of stories from other young and senior members of the bar alike.  It is, therefore, essential that all well-meaning persons stand with the judicial institution when destabilizers get ready for an assault. We are standing with the judicial institution and if and when the complainant is proved wrong we will leave no stone unturned in standing against the wrong doers. The truth must emerge.

Since the case relating to this is pending in judicial side before the Bench of a Court, we should leave it to the wisdom of the Court as to how they intend to deal with it. But let it be remembered that this is not the first case of the ‘institutional destabilizers’ nor will it be the last.  If those who peddle falsehood to destroy the institution are not dealt with in an exemplary manner, this trend will only accelerate. We agree. Those who peddle falsehood should be dealt with in an exemplary manner, irrespective of the office they hold.

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