‘Justice Must Also Appear to be Done’

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.