JUDICIARY
EMBARASSED
 |
| Justice Rajinder Sachar, Senior Member Socialist Party (India) |
The
Supreme Court Collegium while taking understandable self pride for its open
functioning when it put its Resolution dated, 8th October, 2017 on
the website to the effect amongst other, “THAT the decisions henceforth taken
by the Collegium indicating the reasons shall be put on the website of the
Supreme Court, when the recommendations is/are sent to the government of India,
with regard to the cases relating to.......elevation to the post of Chief
Justice of High Court....”(emphasis supplied) would have still more
enhanced its worth had it at the same time given the reasons for not appointing
Justice Jayant Patel the senior most judge of Karnataka High Court as its
permanent Chief Justice. To me this action of the collegium has with respect embarrassed
the judiciary and reminds me of Urdu couplet, “The house got burnt with its own
house lantern” is a loose colloquial translation of the Urdu couplet namely
“Ghar Ko Aag Lag Gai , Ghar ke Chirag Se”, which shockingly hit me when I read of
resignation of Justice Jayant Patel of Karnataka High Court.
Justice Jayant Patel,
while he was the acting Chief Justice in the Gujarat High Court, directed CBI
investigation in to Ishrat Jahan fake encounter case, which involved the name
of Amit Shah, who was then the Home Minister of Gujarat and who is now the
President of BJP. All of a sudden Justice Jayant Patel was transferred to
High Court of Karnataka in February 2016.
The present Chief
Justice of Karnataka High Court was due to retire on 09.10.2017.
In usual course Justice Patel should have been made a permanent Chief Justice
of Karnataka High Court. But suddenly the Supreme Court collegium orders his
transfer to Mumbai High Court (where he would be 3rd in seniority)
Hardly had this news made to the public, collegiums changed orders for his
transfer to Allahabad High Court where he would be no 2.
One can appreciate Justice Patels
anguish and even more his resentment at this unexplained action of the
collegiums, so he sent in his resignation to the President. Both Karnataka High
Court and Gujarat High Court Bar Associations held protest and boycotted the
courts for a day.
In order to justify the cancellation of
transfer of Justice Patel to Mumbai High Court and then transfer to Allahabad
High Court immediately thereafter a feeble explanation was got published in the
newspaper that in Allahabad he would rank higher than he would have been in
Mumbai High Court, (as if the injustice of being denied rightful claim to be
the Chief Justice could in any way be lessened).
Justice Patel lived upto the reputation
of sitting judges when notwithstanding this grave provocation he refused to answer
questions as to the reason for his resignation, citing “institutional
discipline”
We should be all praise for Justice
Patels dignified response. But this question touches the serious issue of
independence of the judiciary and the functioning of the collegiums system.
Therefore uncomfortable questions must be asked by the legal fraternity, and
those with all respect, must be answered by the collegium in detail because it
is well established that the Bench and Bar are the two wheels of same chariot,
and any deformity in either of them can only spell the ruin of administration
and independence of the Judiciary. More so now that the collegium has decided
to swing the pendulum to the other extreme of recording reasons why it has
declined to promote the senior most judge to the office of Chief Justice and sharing
it with the public.
May I in this case make a wild guess –
could it be that the executive which was bent on harming Justice Patel felt
that (in case of Justice Patel agreeing to go to Mumbai) he will at least be in
more familiar surroundings, as there is a strong link between Mumbai and
Ahmadabad. But as the viciousness of Modi government was determined to keep
Justice Patel isolated, which he would be if he were to be sent to Allahabad, a
place probably where he may not have gone throughout his life. I feel sad that
Executive could have been able to use such an influence on the collegium – may
be I am mistaken. If so, a greater reason for the collegium to make those
reasons known to public, especially to the Supreme Court Bar Association and
other Bar Associations, (especially Karnataka High Court Bar Association.) and Bar
Council of India.
This is not in any way provocation for
confrontation with the collegium. It is only in recognition of the fact that
this incident has shaken the whole Bar in India and all aspects of this case
should be publically disclosed and discussed.
I would therefore suggest that Supreme
Court Bar Association and Bar Council of India take the lead and jointly
discuss out this matter with the Supreme Court collegium to prevent patent
arbitrariness, which will make the Executive decision supreme thus harming
irretrievably the independence of judiciary.
I hope the collegium does not take
offence and make it a matter of undue superiority and take the stand that this
matter, notwithstanding that it has disturbed the whole Bar of India, it will
not discuss it with the Bar because it is its sole privilege. May I in all
humility submit that this assumption proceeds on the belief that the
judges are immune to human frailties even while making non-judicial decisions
(such as appointments and transfers). This self-glorification is not accepted
even by members of the judiciary itself vide expostulation of Justice
Frankfurter of the US Supreme Court that “all power is of an encroaching
nature. Judicial power is not immune to this human weakness. It must also be on
guard against encroaching beyond its proper bounds and not the less so since
the only restraint upon it is self-restraint”.
The former Chief Justice AS
Anand, reminded the judges that though “our function is divine, the problem
begins when we start thinking that we have become divine”.
If I sound a bit harsh, I
can only invoke the caveat of Justice Holmes of the U.S. Supreme Court, who
said, “I trust that no one will understand me to be speaking with disrespect of
the law because I criticize it so freely.....But one may criticize even what
one reveres.....And I should show less than devotion, if I did not do what in
me lies to improve it.”
Rajindar Sachar
Dated
: 09/10/2017
New
Delhi
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