Recently senior advocate Kapil Sibal, a legal luminary with five decades of standing in the Supreme Court, talked about the hopeless situation at the top court. After him, there has been a beeline of lawyers expressing disappointment over the Supreme Court’s performance. As a non-legal person, I am pained. When I look at the fall in the image of court in the common man’s eye, I find top advocates at the same court are to be blamed equally. Let’s explore the judging the judge syndrome by lawyers, a bit deeper.
The first reaction to this ‘no hope left’ comment makes one assume that the persons having the pain must have been dedicated to eradication of corruption from the judiciary. One gets a shock of a lifetime when the facts indicate that in reality, the same person has fought a very audacious battle to save a proven corrupt judge from impeachment. Strange way of expecting a corruption-free judiciary despite defending its corruption.
The impeachment process against Justice V Ramaswami
In 1991, 108 MPs from different parties submitted an impeachment motion against Justice V Ramaswami, citing 14 charges of corruption. These charges were based on audit report of the Chandigarh administration. The then Speaker of Lok Sabha Rabi Ray constituted an inquiry committee, comprising serving Justices P B Sawant of Supreme Court, serving Justice P D Desai of Bombay High Court and Justice O Chinnappa Reddy who was a retired judge of the Supreme Court. The committee submitted its report concluding that Justice V Ramaswami was “guilty of wilful and gross misuse of office, purposeful and persistent negligence in the discharge of duties, intentional and habitual extravagance at the cost of the exchequer, moral turpitude by using public funds for private purposes in diverse ways and reckless disregard of statutory rules and brings disrepute to the high office and dishonour to the institution of the judiciary and undermines the faith and confidence which the public reposes in the administration of justice”. The impeachment motion contained 11 charges.
Bar, court, and the public make a tripod called justice. All three have to work in harmony. The bar acts as a conveyor belt transferring justice from judges to the public. There is enough space to resolve differences amicably, the only thing needed is to take up the matter in the right forum but not in public
In the meantime, the Bar council also reacted sharply to the corruption charges on Justice V Ramaswami. The April 1990 issue of the magazine ‘The Lawyers’, edited by Indira Jaising, was forwarded to the Chief Justice of India, which contained the full text of the audit report of the Chandigarh administration. A group of senior advocates, the attorney general, Soli Sorabjee, Parasaran, Venugopal and Dr Chitale also met the Chief Justice of India and urged him to act.
Chief Justice Sabyasachi Mukherjee explained: “Legally and constitutionally the Chief Justice of India, as such, has no right or authority to inquire into the conduct of a sitting Judge of the Supreme Court.”
The bar was not satisfied and Nani Palkhivala’s rejoinder was, “There is danger in allowing the bar to pass judgment on a judge. But what is the option before the bar? There is no machinery to bring errant judges to book.”
The audit report, the committee formed by the Lok Sabha speaker and the bar, all were in agreement that action should be taken against the corrupt judge. Yet, the Congress party thought otherwise and decided to defend the undefendable. They got none other than senior advocate Shri Kapil Sibal to defend Justice V Ramaswami. On May 10, 1993 a five-hour long speech before the Lok Sabha by Shri Kapil Sibal led to the defeat of the impeachment motion where all Congress MPs abstained. That day rare precedence was set. A person proven guilty by the committee of judges escaped punishment due to protection by the Congress party and the arguments of Shri Kapil Sibal. This was the beginning of ‘no hope left.
On May 10, 1993 a five-hour long speech before the Lok Sabha by Shri Kapil Sibal led to the defeat of the impeachment motion where all Congress MPs abstained. That day rare precedence was set. A person proven guilty by the committee of judges escaped punishment due to protection by the Congress party and the arguments of Shri Sibal
From here on the image of the Indian judiciary has seen a continuous fall. Shanati Bhushan former law minister submitted a sealed envelope in Supreme Court in 2010 in which he said he listed the corrupt judges’ names. The envelope was never opened.
It is irony that the Government after Government irrespective of political parties has kept on protecting corrupt judges. Shri Kapil Sibal maintained his stand till 2010 when he called the impeachment process “unconstitutional”. He further added, “I think it’s doing the greatest disservice to the nation if politicians decide on the fate of judges.” A very important question is to be answered here whether we are here to follow the constitution or to overrule the constitution. In the last 75 years failing to impeach a single corrupt judge has further deteriorated the image of the Supreme Court.
However, this conviction against the impeachment evaporated in thin air as soon as Congress lost the majority in the Lok Sabha. In 2018, an impeachment motion was brought against the then Chief Justice Deepak Mishra by none other than the Congress party and read by Shri Kapil Sibal the champion of no impeachment against judges.
Advocates and Judges
Another fact has also influenced the present state of affairs. Most of the top leading senior advocates are above 65 years of age, they are brilliant lawyers, have strong convictions, and are highly active in the area of social causes like environment, social justice, extremist violence, etc. Over and above many times they are more experienced than the sitting judges and some judges have worked under them in past. They find it difficult to stand up to the senior lawyers. This has led to the trend of questioning the decision whenever judgment is not favourable.
Not only this, now attempts are made to approach a favourable bench and more. No effort is made to hide the same. The cases of Teesta Setalvad were being heard by judge Aftab Alam. An estranged former aide of her Rais Khan Pathan moved the Supreme Court seeking recusal of Justice Aftab Alam from the bench only then did the truth come out. It was further reported by him that his (Aftab Alam) daughter is closely associated with NGO working for the Gujrat riots (It was widely reported in national media). A former Gujarat high court judge and former Gujarat Lokayukta Justice S M Soni had requested the Chief Justice of India not to allow Gujrat cases to be heard by justice Aftab Alam alleging that he has a communal mindset (The Times of India, July 27, 2012). New phrases like bench hunting and forum shopping are being heard and the Supreme Court has taken a strong view and has said that: Unscrupulous litigants cannot be allowed to even think of indulging in “forum-shopping” to get favourable decisions and it is a “depreciable conduct” in the field of law. (PTI)
The respect shown to senior lawyers by the judges has taken an ugly turn including disrespect for the judges in open courts, media, etc. Nowadays there are more oral comments and fewer written orders, the judges take extra care not to offend these senior lawyers. In the Ram Janmabhumi case, papers were torn by a lawyer, further, when the court was intending to decide the Ayodhya case in a time-bound manner, Kapil Sibal asked, “what is the hurry”? Passing sarcastic remarks has become the order of the day. The courtroom arguments are now heading to bizarre arguments. In one incident senior lawyer was telling the Chief Justice of India that he could not hear a particular case as his name is in the FIR registered by the police. No inspector can file an FIR against any judge without proper permission. In this case, due process was not followed, still, the senior lawyer asked the Chief Justice of India to recuse the case. Arguing a case is fine but playing to the gallery will not improve the hopes of common Indian. There are better ways to manage the relationship between Senior Lawyers and Judges. As per a PTI report on July 26, 2016, Justice Dipak Misra, was hearing an appeal of Rahul Gandhi in a defamation case. He couldn’t recognise U R Lalit – a senior advocate, ex-high court judge, and father of his colleague, Justice UU Lalit. Senior Lawyer UR Lalit was trying to respond to a query raised by the bench about the power of magistrates to ask the police to probe into private criminal defamation complaints. Lalit argued that the proposition of law laid down by this court in the judgment is new and hence needed to be debated upon. Justice Dipak Misra then asked: Have you practiced criminal law?
This was insulting and unwarranted as the court selects senior advocates only after due diligence and after getting satisfied with the experience and credibility of the lawyer. However, senior lawyer UR Lalit did not react but Shri Kapil Sibal representing Rahul Gandhi tried to explain in the meantime saying, “Lordship, he has practiced criminal law much more than us”. Judge RF Nariman whispered in the ear of CJI and the CJI retreated saying, “Now, I will ask Sibal to sit down. Sorry. Sorry, you have never argued before me. So, I didn’t recognise you.” the matter did not end here, the graceful senior lawyer UR Lalit saved the pride of the judge by saying,” Still, it is my fault. The man who occasionally comes to the Supreme Court should be ready for this.” (PTI). This was a far more graceful way of handling the situation rather than going to the media and expressing anguish.
Whispers in the judicial corridor claim that as a judge UR Lalit paid for his uprightness and fair judgments during the autocratic rule of emergency and never got the recognition he deserved.
Working for Questionable Organisations
Recently, some news reports said that the Popular Front of India (PFI) had paid lawyers such as Kapil Sibal and others. Shri Sibal declared that he received Rs 77 lakhs for providing legal services. He was paid Rs 77 lakh for fighting the case in 2017 titled “Safin Jahan (petitioner) versus Asokan KM and others (Respondents)”, which related to Hadiya’s marriage to Shafin Jahan. Which was challenged up to the Supreme Court with the NIA and the father of Hadiya being parties. “In that litigation, Kapil Sibal represented Hadiya, the wife.” As a common man, one always used to wonder, how anti-India forces get the best advocates to fight for their cause, but now the report on PFI funding has thrown some light. If they get paid Rs 93 lakhs for a small case of alleged love jihad marriage then what are the stakes in big cases? The brilliance of the advocate changed the narrative from luring the girl to ‘what the girl wants and Hadiya had been made a party to the proceedings as per the request of Shri Kapil Sibal, (Supreme Court observer).
Discriminatory yet Self-Defeating.
The most disturbing part of this ‘no hope left’ myth, is that it is discriminatory in the beginning and self-defeating in the end. As an ordinary common man, one compares two incidences of riots, the one in 1984 against Sikhs and 2002 Gujrat riots. The first one occurred at pan–India level the second is State level. One was organised by leaders of the ruling party while the other was instigated by Godhra where the train was attacked by a mob of around 2,000 people. After some stone-pelting, four coaches of the train were set alight, trapping many people inside. Fifty nine people including 27 women and 10 children were burnt to death, and 48 others were injured. According to J Mahapatra, additional Director General of the Gujarat police, “miscreants had kept the petrol-soaked rags ready for use much before the train had arrived at Godhra.
At Godhra the train was attacked by a mob of around 2,000 people. After some stone-pelting, four coaches of the train were set alight, trapping many people inside. 59 people including 27 women and 10 children were burnt to death, and 48 others were injured. According to J Mahapatra, additional director general of the Gujarat police, “miscreants had kept the petrol-soaked rags ready for use much before the train had arrived at Godhra
In the first case, the mother has been assassinated and there were enough reasons to become revengeful, in the second case there is no such motive. in the first case, the leader justified violence by saying, “when a big tree falls ground shakes” but no such utterances in the Gujrat riots. Still surprisingly, the supreme court intervened at a very early stage. Cases were transferred out of state. SIT was formed, submitted the report, and over 600 accused were prosecuted, despite this prosecution SIT was not able to trace any proof of conspiracy, the court is fully satisfied with the SIT report, and charges have been dropped yet the ‘no hope left’ campaign is not satisfied. When they fail in argument in court, they assault the judges in public.
Divine Expectation from Incumbent Chief Justice
Some people are offended that as senior advocate U U Lalit represented Shri Amit Shah, and maybe this is why some are questioning his appointment as CJI. Is it fair, when defending terrorists, Maowadis, and other criminals justified by quoting the cab rank rule, which says no brief should be declined if the fee is right? The attack on the judiciary is unfortunate as the judges cannot reciprocate the favours, as said by CJI Dipak Misra,” You can afford to lose your temper but we cannot”. (PTI; November 10, 2017)
A common man gains power when the judicial system is well-oiled smooth and easy to approach, the public can easily fight corruption if it can say with confidence, “main court Jaunga” I will go to court, or else there is no place to hide. Public trust and faith in the judiciary have taken a beating. Twitter and Instagram are not the right fora to vent out differences
Bar, court, and the public make a tripod called justice. All three have to work in harmony. The bar acts as a conveyor belt transferring justice from judges to the public. There is enough space to resolve differences amicably, the only thing needed is to take up the matter in the right forum but not in public. A common man gains power when the judicial system is well-oiled smooth and easy to approach, the public can easily fight corruption if it can say with confidence, “main court Jaunga” I will go to court, or else there is no place to hide. Public trust and faith in the judiciary have taken a beating. Twitter and Instagram are not the right fora to vent out differences.
Chief Justice U U Lalit has only 74 days to his credit yet hopes are high, Raja Parikshit achieved salvation in 7 days, CJI has 10 times more time, to strengthen the bridge between the judiciary and the bar.