‘Jus­tice Must Also Ap­pear to be Done’

India Today - - BIG STORY/JUDICIARY - DUSHYANT DAVE Se­nior Ad­vo­cate, Supreme Court of India

To the scep­tics, re­tired judges and se­nior lawyers who have ques­tioned the bold step by four distin­guished and re­spected judges I ask: what have you done for the in­sti­tu­tion? Have you stood up and pub­licly taken a stand against cor­rup­tion and nepo­tism in the ju­di­ciary?

To­day, hun­dreds of bright young lawyers are prac­tis­ing in courts across the coun­try. But they don’t have much work. The kith and kin of many judges garner a lot of the work. The gov­ern­ment is the big­gest lit­i­gant and it rou­tinely ap­points rel­a­tives of judges on var­i­ous pan­els. Even appointmen­ts of se­nior law of­fi­cers are dished out on a purely po­lit­i­cal ba­sis. Re­cently, a re­port al­leged that a sit­ting Supreme Court judge used his clout to get his brother ap­pointed as a law of­fi­cer in his na­tive state even as a sen­si­tive mat­ter from that state was pend­ing be­fore a Bench [the al­le­ga­tion re­mains un­ver­i­fied]. Such in­stances send a ter­ri­ble mes­sage to the sub­or­di­nate ju­di­ciary. Those judges, work­ing un­der try­ing con­di­tions, are de­mor­alised look­ing at the al­leged hap­pen­ings in su­pe­rior courts. Un­less the top is clean, the sub­or­di­nate ju­di­ciary will not be en­cour­aged to be clean.

The con­sti­tu­tion of the Aad­haar bench by the present Chief Jus­tice of India is flawed be­cause it ex­cludes Jus­tices J. Che­lameswar and S.A. Bobde, who have been hear­ing this mat­ter since 2013, and some other judges who have been mem­bers of the pri­vacy bench of nine judges. No judge is less com­pe­tent than the other. All judges are equal and must be re­spected. Si­mul­ta­ne­ously, jus­tice must ap­pear to be done. This salu­tary prin­ci­ple is af­fected in the man­ner in which benches are be­ing con­sti­tuted. I have raised these is­sues time and again. The at­tempts to close the in­quiry into the sui­cide note of for­mer Arunachal Pradesh chief min­is­ter Ka­likho Pul were sim­i­larly trou­bling. Why do chief jus­tices con­sti­tute benches in an ar­bi­trary man­ner? Judges can be friends with politi­cians, but as per their Res­tate­ment of Values, (1997), they can­not hear cases re­lat­ing to them or their par­ties or their party col­leagues.

I don’t think this mo­ment gives the gov­ern­ment the op­por­tu­nity to weaken the ju­di­ciary. On the con­trary, the last sev­eral decades have shown that the gov­ern­ment has in one form or the other se­ri­ously pen­e­trated the ju­di­ciary and in­flu­enced its func­tion­ing, in­clud­ing de­ci­sion-mak­ing. No­body talks about it, ex­cept in hushed tones in the cor­ri­dors of the apex court. But ev­ery­one knows about it.

Ul­ti­mately, it’s about our democ­racy, and who can pro­tect it? Only the courts and the judges. They are the fi­nal ar­biter.

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