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.