Yeh kya ho rahaa hai? What is happening?

Shafeeq R. Mahajir

Taking off from Yash Agarwal’s “Judicial Standards Accountability Bill …Careful Consideration” November 16, 2020, THE LEAFLET, where he points out “Democracy requires a graded system of accountability for its judiciary that is not limited to impeachment” we read in Hussainara Khatoon vs State of Bihar, 1979, Justice Bhagwati, “mainstreamed” PILs enlarging the scope of “locus standi”. With evolution of India’s powerful judiciary, a significant institution dealing with matters of law and constitution, argues Agarwal, methods of its accountability need to evolve as well. Constitutional provisions ensure paramountcy of judicial independence but for ensuring accountability, only the extreme, impeachment, exists, and impeachment in India has never gone to its logical conclusion.

Salman Khurshid’s JSA Bill seeking to lay down judicial standards, create accountability mechanisms with provisions to enforce standards of conduct, establish National Judicial Oversight Committee empowered to advise or warn judges, recommend removal to the President, envisaging Complaints Scrutiny Panel and Investigation Committee, was passed in March 2012, after Standing Committee scrutiny, but the exercise ended there. Does the political establishment not desire to ensure accountability of the judiciary?

Who benefits from lapses ensuring Bills lapse insulating errant judges from accountability? Are politicians desirous of status quo continuance, have accountability-free judges, less difficult to  manipulate, play Grandmaster over Master of the Roster?
Absent accountability breeds arrogance, and functioning of Courts raising issues of concern, recent times saw contempt jurisdiction in focus. Earlier Prashant Bhushan, now Kunal Kamra, exemplify more distressed people willing to express misgivings about functioning of courts, including the Supreme Court. As in fact many Chief Justices themselves have in the past. If these voices were few, we could perhaps ignore the issue. However, write-ups that followed have shown that distress shared by a large and growing number of people including jurists, retired judges, senior advocates, and various other intellectuals. If the expression was with intent not to seek improved efficacy and non-partisan dispensing of justice, without thought of affiliations and political orientations, but to bring disrepute to the Institution or denigrate judges, these openly expressed reactions of eminent people would not have been forthcoming. It is therefore safe to assume something is wrong. When something is wrong, it needs corrective action.

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On one hand, the perception from which this distress flows can be wrong. If so, should not Courts by conduct ensure unjustified impressions no longer prevail? What should Courts do to dispel the perception, especially when the “erroneous” perception is shared by so many of high calibre? On the other hand, the perception can be justified. If so, should not Courts by conduct ensure causes of such justified impressions no longer prevail? What should Courts do to dispel the (justified) perceptions… no, correct the circumstances causative of the perceptions, shared by so many of high calibre as justified perceptions, eroding the prestige, efficacy and respect of the institution?

In both cases, the response must come from the judiciary. Response publicly seen has been contempt proceedings. If there are any internal deliberations to correct anything, the public is not aware of those.

Two small (but major) problems:

One, Prashant Bhushan was held guilty. Damages awarded: Re.1/-. Among damages, there are several types. One is labelled contemptuous damages: “…similar to nominal  damages…as …when the plaintiff’s suit is trivial, used only to settle a point of honour or law…usually of smallest amount…one cent or similar.” Wikipedia.  “…very small sum awarded when, although claimant is technically entitled to succeed, court thinks the action should not have been brought.”  Oxfordreference.Com. “…even though case is won, court may consider it should not have been brought to court and will only award tiny damages, also known as derisory damages.” LegalChoices.Org.UK.

Two, if a case taken up suo motu results in award of only contemptuous damages, does it not suggest that the Court, having initiated the case itself, concluded it should never have taken it up? As my title asks, yeh kya ho rahaa hai?

Corresponding on related aspects, one retired judge wrote* to me (and as is my way, I respond with question-comments):
*The ideal is the rule of law and not of man. Therefore we have the principle of following precedents.* àTrue, but has the Supreme Court been doing that uniformly or do we notice a marked divergence in individual, select cases?

*Every case has two aspects – finding of fact and opinion on law. The case is decided by applying law to finding of fact. Finding of fact is a matter of belief.* à Crumbs! I was under the impression evidence determines what is fact and what is not.

*The finding of fact therefore depends on the make-up of the judge. There is no training school for that. Every judge is self-taught in on the job training. So it is often seen that two different inferences are drawn by two judges.* àBaap re! I was led to believe judges leave religious/partisan belief-baggage at the door when they enter courtrooms. Apparently I was mistaken. *Self-taught on-the-job.*à So predisposition is the predeterminant of the decision? *Two different inferences*…à  You mean, same facts, decision depends on who the case comes up before? Oh. That explains forum-shopping, and why which judge hears matters determines which counsel is engaged. Even greater reason to ensure people with partisan orientation never make it to judicial office.For when such people do make it to judicial office justice stands inverted… or do I mean subverted? That explains so many decisions…

*Every litigant and his lawyer are motivated to win and if they show their factual case is different and law laid down by earlier decisions is not applicable, you cannot fault the judge for accepting that argument.* à Yes, but the determinant, it stood admitted already, is the predisposition, the belief, the propensity to start with the premise “we” are right and “they” are wrong, so… Khair, aage chalthe hain…

*As to your point about the possibility of judges being influenced by the political situation in the country, it is a matter of your perception.* à Saab, mera perception baazu rakhoDuniya kya bol rahi hai suno. If judgements are influenced by privately held belief, mental make-up, why not then by political situations?! The judge did not say “not influenced by anything”, only “not influenced by political situation”. Now, read between the lines.

*If you wear one colour, you are bound to see the judgement, that you don’t like, as being washed with the other colour.* à If there is a judicial transfer the day the judge passes an order disliked by the Government, it can be coincidence. If the very next day a substitute judge recalls that order, that too can be coincidence. Allotment of certain of cases to certain judges… coincidence. Hearing one habeas corpus urgently, one more coincidence. Not hearing scores of others from another part of the country, yet another coincidence… Casino Royale, Ian Fleming, Goldfinger : “We have a saying in Chicago Mr Bond. The first time, it’s happen stance. The second time, its coincidence. The third time, it is enemy action.” Yes, Goldfinger is fiction, I know. An adage goes, “Truth is stranger than fiction.”

*A judge is also a human being and his own personality and his belief cannot be wiped off the slate in which he is writing the judgment.* à Ah ! So belief does colour judgements! Paraphrased, decisions are rendered on the basis of belief, not proved facts to which the law is applied. Worse, we learnt above that *finding of fact depends on the make-up of the judge*. Does this explain Babri Masjid? Befit States seeking position as preferred investment destinations?

*But most judges do try to keep themselves as objective as possible.* à Most do? Okay. So there are those who do not. Which are those, and what is to be done about them?
*I believe that governments of whatever hue do not try to influence judges and judges also try to insulate themselves from all kinds of influences.* àAnd all those coincidences…? Influencing judges is not telling judges what to do. Non-vocalised suggestive nudges are equally effective, one imagines. A timely, or untimely, transfer can be quite communicative, don’t you think? And incentivising can be by precedent, such as a potential seat at a Sabha, a Gubernatorial position…

*When you talk of possibility of influence by the national government, how about the domination by his own home government?* àSaab, saab: does it matter which government?! We are on impartiality, unbiased non-partisan approach, dispensing justice applying law to facts proved, regardless of belief, predisposition, mental make-up, government, et al.
The same judge, years ago, asked me how would I feel if a neighbour entered my house and told my children about what I did not believe. (He did not specify, but he was alluding to Muslims and Christians in India whose teachings the residents earlier did not subscribe to.) I have a problem with that: I am not a neighbour. I live here, in the same house. I was born here. My parents and grandparents were born here, lived, died and are buried here. This house is the house we the people of many faiths caused to be created, for all of us. We all fought for it, bled for it and are integral to it. Sacrifices of Muslims are documented. Their being lynched by the British is documented. Creating one country unifying numbers of rajwadas and kingdoms during Moghul rule is documented. The India that emerged is contributed to and created by us all. And, as member of this household, consistent with the Constitution we all gave ourselves swearing to uphold and abide by its values, exercising my right guaranteed by that very Constitution, I teach what I believe. Don’t you?!  I do not object to your teaching what you believe, but you do not want to allow me the freedom you wish for yourself! Which one of us is intolerant?
Muslims have not said we must have a Muslim Rashtr. That would be violation of our allegiance to the Constitution we all subscribed to. The judge has no problem with people desiring a Hindu Rashtr. Only with me expressing what I believe… no issues with legislation against conversion, violative of Constitutional guarantees of freedom of conscience, but issues with my exercising my Constitutionally guaranteed right to practise and propagate my religion. His belief is justified. Mine is not. His belief can colour judgements that change the course of destinies. Mine must not change the way even one individual thinks. I am obscurantist, retrograde, he is enlightened, progressive. I understand.

I saw a video recently featuring a Hindu gentleman predicting that by 2034 India will have a Muslim Prime Minister, exhorting his Hindu audience to have as many children as possible in the next eight years, and to give in each child’s hand…a weapon! Satyameva Jayathe must change, he said, and Shastrameva Jayathe be the slogan: arms will prevail. First time I heard it, so I looked up शस्त्र and I found हाथमेंपकड़करदूसरोंकोमारनेकेकामआनेवालावहसाधनजिससेयुद्धआदिकेसमयशत्रुपरआक्रमणकियाजाताहैतथाआत्मरक्षाभीकीजातीहै : (thing held in the hand useful to kill another during war etc., attacking enemy and also protecting self); वहउपकरणजिससेचिकित्सकफोड़ेआदिकीचीरफाड़करताहै : (instrument which abscess etc. can be cut open with); हथियार : (weapon); Weapon; Munition. I looked further, Working Paper #29 (Neeti Nair, Nov. 2004:dspace.mit.edu/bitstream/handle/1721.1/97627/29_keys.pdf;sequence=1) to read former BJP MP convert to Sikhism, Baikuntha Lal Sharma aka Prem Singh “Sher” feels that at present rate of growth of Muslim population, India will soon become Pakistan… Unhappy with compromises by BJP he resigned preferring duty of martial caste, Kshatriyas, to save Hindu society, and shastra meva jayate [arms will prevail] was slogan he invented.
I understand. He has his own personality… when judges’ belief cannot be wiped off the slate writing judgments, it is unfair of me to expect others, mere bureaucrats, mere uniformed officers, will not weave belief into whatever they say. I am, however, justified in expecting better of judges, trained in the law, sworn to uphold Constitution and laws…
Yeh Kyun Ho Rahaa Hai ?
Jai Hind

Shafeeq R. Mahajir is a well-known lawyer based in Hyderabad

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