Impeaching a Judge

IMPEACHING A JUDGE
RAJEEV DHAVAN

Impeachment proceedings against Justice Dinakaran are on. The controversy which started over the suitability of his appointment as a Supreme Court judge has expanded into considering whether he should be allowed to remain a judge – leave alone the Chief Justice of Karnataka. Accordingly, the Vice-President M.H. Ansari (as Chairman Rajya Sabha) has appointed Justice Sirpurkar (Supreme Court), Justice Dave (High Court), and P.P. Rao (distinguished jurist) as members of the Committee under the Judges Enquiry Act 1968 – as a prelude to impeachment.

But no sooner was his penultimate proceeding started, those very groups responsible for the campaign against Justice Dinakaran now want a recall of two members (Sirpurkar and P.P. Rao) and inquiry to be reconsituted. This request flows from Forum for Judicial Accountability (Chennai or Vaigai group) and Campaign for Judicial Accountability (Delhi or Bhushan group). Both have been at the forefront of this campaign supported by others. The two groups are convinced he is guilty. Others who support, like myself, feel that there is prima facie case for an inquiry which alone can determine his guilt.

Why should Justice Sirpurkar and PP Rao be asked by the Vice-President to recuse themselves? It is also suggested that since the Chief Justice of India (CJI) was consulted with these appointments, these appointments are suspect because the CJI had defended the collegium’s affirmation of the decision to elevate Justice Dinakaran to the Supreme Court. The Chennai group feels that it has a special right to challenge these appointments because they were the first to explode the Dinakaran issue to the public. The Delhi group is a self-styled vociferous custodian of judicial morals. Democracy is grateful to both of them.

At the very outset, let us be clear that the Inquiry Committee is not a jury. Nor are we in the process of jury selection where you keep opposing appointments until you get the jury of your choice. If the Vagai-Bhushan groups want to appoint judges of their choice or satisfaction, the rule of law and fairness is ill served. Nor should it appear that this is so.

Let us start with P.P. Rao. Did either of the groups speak to P.P. Rao? No, they did not. Well, I did. P.P. Rao drafted the memo of 28th November 2009 asking Dinakaran to face the inquiry. Reliance was placed on a newspaper item that it was “learnt” that P.P. Rao had been consulted by Dinakaran. The next step was to jump to conclusion that Rao was disqualified. First, P.P. Rao has not given any “opinion” to Dinakaran. Dinakaran is not his client for a fee. He is not a friend. There is no pecuniary “bias”. Dinakaran did call on Rao, who told him to face an inquiry and step down from work during that period. Rao’s stance has always been clear. The Chennai group also asserts Rao and Dinakaran along with others are on the General Council of the National Law School. According to them, the test is that all those who “has had any association with the person whose acts are to be gone into” are disqualified. This would exclude all judges of the Supreme Court and High Court Chief Justices, since they all meet at Chief Justices Conference, and other meetings. This concept of “association” is then restricted by the Chennai-group to “close association” with Dinakaran. This test, too, fails. Rao is not closely associated with Dinakaran. Rao is one of the most distinguished counsels and jurists in India – known for courage, integrity, calm and brilliance. His impeccable record shows he is above suspicion. The only way to malign him is to force unwarranted suspicions on him. Rao is a gift to the legal and public community. Let things remain that way.

An embarrassed Rao wrote to the Vice-President to seek permission to recuse in the light of the controversy. The Vice-President has declined. Mudslinging without foundation is neither fair or in the public interest.

Justice Sirpurkar is a judge of the Supreme Court against whom there is no allegation of judicial impropriety. His recusal is sought for two reasons. First, both were judges of the Chennai High Court between 1997 and 2003 and sat on benches and committees together. This could hardly constitute a disqualification. If correct, no Supreme Court judge could ever sit on the inquiry committee against a Supreme Court judge because they invariably sit on cases together. The second reason advanced by the Bhushan-group is that it “has come to know… (that) he has told several responsible lawyers after the controversy “that he knows Dinakaran well and that he is a honourable and wealthy man” and has therefore “prejudged the issue”. Corridor gossip lacks credibility. Even so, Dinakaran is prima facie innocent until proven guilty. His inquiry should be fair. Justice Sirpurkar will, and must have, assessed the situation before accepting this assignment. Attributing bias on unwarranted suspicions is unacceptable.

The sad part of such accusative campaigns is that it puts public minds in a fix. If Dinakaran is acquitted, there will be a “I-told-you-so”. If found guilty, the judges and Rao will be applauded. The effect of such a campaign is a message to Sirpurkar and Rao that they are forewarned that they must convict to prove their independence and impartiality. Such pressure on an independent inquiry is simply wrong.

The next issue is whether the Chief Justice of India (CJI) is to be consulted since it is alleged that the Judges Inquiry Act 1968 does not require consultation and the CJI had defended the decision to elevate Dinakaran to the Supreme Court. That the CJI defended his own and the decision to the collegium is hardly suprising. Placed in doubt he again referred the matter to the collegium, which reversed the earlier decision. The CJI asked the government to inquire into the allegations against Dinakaran. As CJI, and head of the judiciary, he had to be consulted on which judge could be spared from court work. On the material placed, there is no reason why the CJI should not discharge his constitutional functions.

This leaves the issue of the Survey of India Report to determine the extent of the Dinakaran lands and alleged encroachment. The Chennai group says that the Survey of India’s deliberations should stop, so that the parallel proceedings should not take place in Parliament and the Survey of India. I think this demand is correct, but should not possess a shrillness of articulation. On 11th January 2010, the CJI told a newspaper that he asked the government to conduct an inquiry and does not know what the Survey’s report says. What, then, is the solution? Clearly, the Vice-President of the Rajya Sabha (to whom the Chennai-group wrote the letter) has no jurisdiction. Nor, indeed, the Chief Justice of India, who did not order it. Before the matter is litigated, the Government of India has the power to stop the Survey of India. It will also be within the remit of the inquiry and Parliament to seek the report or further evidence, if so advised.

Vigilance is important to democracy, excessive suspicion is not. Public scrutiny is vital, but it has to be grounded with well founded rigour.