Saturday, September 19, 2009

Dinakaran Affair

The Dinakaran Affair
- Rajeev Dhavan

If Justice Dinakaran is not fit to be a Supreme Court Judge, why is he fit to be a High Court judge? Did the collegium slip up when they made him Chief Justice of Karnataka? Or, indeed, when he was appointed a judge? What now? What next?

India has a grand higher judiciary, with enormous powers which it has expanded by appropriation. The good judges get on with what they have to do. The ‘bad’ judges rest content that they are immune. No one can touch them. They cannot be removed except by impeachment which is long drawn and imperfect. Some judges resign, such as Shamit Mukerjee. Some fight their way through the legal process such as Justice V. Ramswami (who was saved by Parliament) or his father-in-law, K. Veeraswami (who was saved by the Supreme Court). The good judges are becoming mediocre. The bad judges under-perform and are suspect. At many levels, judicial decision making is inept. Judicial office carries pomp and ceremonies on a daily basis. Compared to the Bar, judges are poorly paid, confronted with temptation and with post retirement blues. Some hanker for government jobs after retirement. Some make lakhs after retirement as arbitrators. The era of the great judge seems over. This pessimistic account is a painful honest assessment.

The ‘Dinakaran’ imbroglio brings many of the problems of the new method of appointment into focus. The charges against him are: (a) land grabbing on his estate to enlarge his holdings to 550 odd acres where he is sign-posted as an “Emperor,” (b) corruption in judicial decisions by (i) granting bail to hardcore criminals under suspicions circumstances and (ii) in various cases especially in the Binny Cotton case (where alleged concessions made by government counsel are denied). He is also challenged for petty things such as not allowing Justice Shylendra Kumar to declare his ‘assets’ on the Karnataka High Court website. Justice Paul Daniel Dinakran’s declaration: “I’m wealthy, I don’t need to be corrupt” is not sufficient. I once asked a rich uncle: “What does one give to the man who has everything”. The rich birthday boy replied: “A little more of everything”. Theoretically being rich is not a defence for bad financial behavior. Justice Dinakaran has a case to answer on disproportionate assets in violation of the law and suspect decision making. Advocate G.S. Visweshwara of Bangalore is right in asserting that allegations are not proof. But, how do we proceed? The Advocate Association of Bangalore says he be denied work. There is a more serious move to boycott the Dinakaran bench. The Bar Council of India has expressed doubts about his appointment to the Supreme Court. Some Madras High Court lawyers have long list of possible charges. The Tamil Nadu farmer’s association wants his alleged appropriation of government waste land in Kaverarajapuram in Thiruvalluvar examined not just as a land grab, but in total violation of the land ceiling Act. Some lawyers support the judge; some are hostile.

Justice Dinakaran has declared that he will not accompany the ‘judges exchange’ delegation to Australia. There is a lot of doubt whether he deserved to be a delegate over others in the first place. Someone seems to have a soft spot for him. But the process of his appointment needs scrutiny. Under the Supreme Court’s dispensation the collegium (at present Balakrishnan CJI, B.N. Agarwal, S. Kapadia, Tarun Chatterjee and A. Kabir JJ) decides. In addition, the collegium should know the views of other Supreme Court judges who had knowledge of the judge – in this Katju and Ganguly JJ. who had been Chief Justices of Madras and Cyriac Joseph and Ravindran JJ who had been at Karnataka. Rumour has it that this full consultation did not take place with these judges. The CJI had called in Justice Dinakaran on 15 September 2009 to get a full explanation backed by documents. On 18 September, his case went to the collegium who were unable to come to a view.

How did this insular and insulated collegium come into place? In Supreme Court decisions of 1982, 1993 and 1998, the Supreme Court hijacked the power to make High Court and Supreme Court appointments. Was this hijack constitutional? The answer is ‘No’ – except that the Supreme Court made it the law of the land. Five ex-Chief Justices of India have told me that it was a dream solution, which is now not working. But judges do not want to give up this exclusive mastery over judicial appointments.

The collegium has not investigated the potential appointments, properly. Apart from reading some judgments of such potential appointees, the collegium has nothing to go on except rumours and their own biases or prejudices. If there was ever an ill informed and skewed method of judicial appointments, it is this. High Court Chief Justices and judges (including sitting judges of the Supreme Court) make it a point to call on the CJI and other Supreme Court judges to win favour. One successful appointee going for an appointment with the CJI before his appointment asked: “What should I call him: ‘My Lord’ or ‘Brother’!” The collegium claims to go on seniority and exceptional merit. This is not followed. The executive, which has both knowledge and bias has minimal significance due to the Court’s hijack which selects a lowest common denominator basis.

Judges are scared that the present system of exposure by a few lawyers through the Committee of Judicial Accountability (COJA) is an unfair bloodhound method. My chamber senior Kapil Sibal clearly thought this was the case, when he argued the V. Ramswami case into stalemate. I believe that this ‘private’ lawyer ombudsman method is not totally fair. For me, Fali Nariman and Anil Divan leading the case against Justice Dinakaran gave greater credibility to a process that otherwise crucifies judges in the media. Yet lawyer inputs into the process are important, meaningful and cannot be denied.

The answer is to (i) give up the collegium, (ii) have a transparent system of selection, (iii) allow comments by the bar and various jurists, (iv) give the executive a better role, (v) make a decision with the full input of all Supreme Court judges (some of whom learn of new appointments through the newspapers), (vi) give the judge a hearing before the whole court where an adverse decision is possible. These proposals can be implemented now.

For the future, we have the following alternatives: (i) Senate confirmation – following the US method (which is inappropriate to India), (ii) an ombudsman over the collegium suggested by Fali Nariman which is also inapposite, but exposes the need for an investigative tool and (iii) a National Judicial Commission with inputs from lawyer, and others. This last solution has been aired since 1973 after the supercession controversy. This is the appropriate solution.

Constitutional governance succeeds because of a system of renewal. Parliament is renewed by the people through elections. The civil service is renewed by selection through the Public Service Commission. Judges are selected by a closed, inept and irresponsible process. Yet they decide matters that invalidate laws and ever constitutional amendments. The National Judicial Commission is the answer. But will judges give up the cozy, but dangerous, power which they have mis-appropriated.

Saturday, September 5, 2009

Secrecy and the Supreme Court


What will the Supreme Court do now? Will it appeal to itself in its own case? And decide in its own favour?

Adding vulnerability to embarrassment, the Supreme Court laid its confidential soul bare in a writ petition to the Delhi High Court challenging the order of disclosure by the Central Information Commission (CIC) under the Right to Information Act (RTI). The issue: disclosure of assets and dragging the Chief Justice of India into the vortex of the RTI. The highest court of the land was at the doors of a subordinate court. This must have been done at the instance of the CJI even though filed by the information officer. Curiously, the information officer who was so ordered by the CJI to approach the Delhi High Court, claimed that under the RTI, the Supreme Court was quite distinct from the CJI who ordered the litigation. We must assume that the CJI, who must have given the orders to file the Delhi High Court petition, was the real behind-scenes litigant before the High Court.

On 2 September 2009, Justice Ravinder Bhatt displayed great erudition and clarity in telling the CJI and the Supreme Court that (i) the CJI was a public authority under the RTI; (ii) Information on assets falls under the RTI; (iii) the information given to the CJI is not confidential or in a ‘fiduciary’ capacity; (iv) the content of assets declaration is not personal information unrelated to the judges’ work and status; and (v) the CJI could easily provide greater clarity on assets declaration in consultation with his brother judges if he wished.

This is a brave decision, brilliantly analysing the law in terms of constitutional democracy by saying that the RTI is “one of the most important pieces of legislation, in the post-independence era, to effectuate democracy…like a powerful beacon which illuminates unlit corners of state activity and of public authorities which impact citizens’ lives, to which they previously had no access”. To this Justice Bhatt reminded his own brethren (including the Supreme Court): “The underlying promise of every modern constitution is that power, whenever given, is held and exercised in trust”. This is equally true of the CJI and the Supreme Court. This is a sobering thought judges should so well to remember. Just last week a Supreme Court judge listening to a case suggested that as a Supreme Court judge he was Supreme, could do the legally impermissible because there was no appeal to any higher authority! Power cannot be allowed to go to anyone’s head – least of all judges.

Justice Bhatt’s judgment reminds us that under the present law judges have no obligation to disclose their assets to anyone. This is in contrast to America, where the Ethics in Government Act 1978 and the Judicial Disclosure Responsibility Act 2007, provide a balanced public interest approach to obligate the judges to put information on themselves in the public domain. In India, Law Minister Moily withdrew the Judges (Declarations of Assets and Liabilities) Bill 2009 under pressure of public opinion and we are still in the lurch about its future. Clearly in India, the system of disclosure about the judiciary has been devised by judges, is imperfect, self serving and half hearted. It is better to have a proper system set up by Parliament than wait for judges to stumble on the right solution.

The “judges assets” decision has not arisen because judges are under an obligation to reveal assets, but because judges have volunteered this information in a ‘Judges Declaration’ of 7 May 1997. It is the High Court rebellion led by Justice Shylendra Kumar that has consolidated into public promise. After 12 years, the issue of “judges assets” still flounders for style. The simple answer: “Step in Parliament and resolve the mess”. But, it is important that Parliament should be balanced. At present, the judiciary is not one of the institutions exempted from RTI (Section 24). Total exemption may be warranted in some cases (the schedule is already too wide), but not for the judiciary which prides itself on accountability through openness. Today, even information on the workflow, complaints against judges and budget of the Supreme Court is not available. When Fali Nariman tabled a bill for disclosure of such information, Law Minister Bhardwaj denied support!

But, Justice Bhatt’s judgment leaves one or two issues open. In the operative order, the Supreme Court’s information officer is directed to “… release the information sought by the respondent applicant, - about the declaration of assets, (and not the contents of the declaration, as that was not sought for) made by judges of the Supreme Court, within four weeks”.

What happens about the contents of the declaration? It was not asked for, so it was not given? But if it is asked for, will it be given? Justice Bhatt has made it clear that the information does not come under the broad exemption of information in a “fiduciary relationship” (Section 8 (1)(e)). Technically, he is right because “fiduciary relationship” vest in guardians, trustees, company directors and so. The CJI comes under the RTI. But, while cabinet papers are specifically exempted under RTI (Section 8(1)(i)), the judiciary’s deliberations are not. The privacy exemption relates to personal information not related to official work (Section 8(1)(j)).

But Justice Bhatt has, perhaps unwittingly, set a cat amongst the pigeons. If the CJI is under RTI, what happens to the information about appointing High Court and Supreme Court judges? Following the Supreme Court’s 1993 and 1998 decisions, the CJI and the collegium make many crucial decisions which have changed the face of the judiciary. Will this information be available during or after this decision process? Or will the CJI and collegium judges claim a new found constitutional immunity of information which they devise for themselves?

The Supreme Court’s 1998 decision says that the opinions of judges should be sent to the Law Ministry and Cabinet and even disclosed to a recommended judge whose appointment has been shot down by the Cabinet. The Cabinet’s deliberations are exempt from RTI, but the Supreme Court’s paper work is not.

As things stand, the people of India are baffled at judicial appointments even, and especially, to the Supreme Court. Justice AP Shah, Chief Justice of Delhi – arguably one of the best judges in India has not been elevated to the Supreme Court. Why? Is it because of an intuitive needle of suspicion festering in one or two members of the collegium. In recent years, while making appointments to the higher judiciary, the Supreme Court’s criteria of seniority or exceptional merit have been flouted on the basis of personal preference.

Basically, the Supreme Court and judiciary are highly secretive, but hugely empowered high profile institutions. Justice Bhatt steps in the right direction. The real controversies will follow about appointments complaints made against judges to the High Court or Supreme Court and even assets declaration.

Will the Supreme Court, a litigant before Justice Bhatt, appeal to the Delhi High Court Division Bench; and, then to the Supreme Court in its own cause. It should not. But, that drama is yet to unfurl. Wisdom not obstinacy or grudges should rule the future.