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PJANARDHANA REDDY (ADVOCATE & DIRECTOR)     23 September 2010

KRISHNA IYER ON SHANTHI BHUSHAN COMMENTS ON SC CJ'S

 

A challenge before the nation

V.R. Krishna Iyer

Have some Chief Justices of the Supreme Court indeed been delinquent, or is Shanti Bhushan resorting to bravado? The truth should come out.

Shanti Bhushan is a distinguished Senior Advocate of the Supreme Court. The former Union Law Minister has been a public-spirited counsel of corrective strategy. Now he has, in a stroke of seemingly egregious expression of national conscience, raised a historic, heuristic challenge. He has questioned the integrity of the top brethren of the highest judiciary of the Republic, hurling charges of corruption against eight of 16 Chief Justices of the past. He has defiantly desiderated them in a militant manner. Take action for contempt of court against me, if you dare, he seems to say. And the media have publicised Mr. Bhushan's action, which sounds much like bravado.

Now it is left to the nation to move on this matter of paramount importance. This is an astonishing event — the rarest of the rare kind. If India is not a coward, if its swaraj is not merely soft and formal but firm and phenomenal, an appropriately high-level investigation, with consequential follow-up action that is punitive and reformatory, is imperative. This is no time to hesitate or involve in an exchange of rhetoric. Nor is this the time for a guarded and diplomatic reaction. This is unprecedented: a succession of Chief Justices have been publicly accused by a Senior Advocate of standing, risking his career.

Take action or face collapse. This is not a matter for ordinary public interest litigation. Until now, in no democracy would such an event have happened. There is not a moment now to relax or show amoral indifference or inaction. Should India keep quiet and go into slumber in the face of Operation Bhushan Bravo now, the world will judge this democracy as a bundle of brave words that, when it comes to action, is a flop show. This is not an hour to relax or retreat from duty. This is an open offensive against the highest court. The court, with vast powers of adjudication of justice and writ jurisdiction, has been put in the dock, so to say. To remain deaf or dumb to this situation will be a shock and a shame. When the judicial system suffers seppuku, we become a society sans justice.

This is a crisis beyond Mr. Shanti Bhushan and Chief Justice S.H. Kapadia themselves. The extraordinarily epic charge demands a trial. How can the courts close its eyes and pretend to be asleep? Wake up and walk with your head high, and create a tribunal as unique as the situation. To fail here will put the nation's reputation under grave suspicion.

The judiciary is constitutionally empowered to be critical, to quash and be a corrective. It could issue creative writs or directives binding the functional process of the Executive and the Legislature. What about the judges if they are not efficient, competent and capable, and with a vision and mission to transform the social dimension of any policy or action that is violative of suprema lex? In the United States, Chief Justice Earl Warren produced a racial revolution that U.S. President Eisenhower could not achieve. In the Commonwealth, visionary judges have shown their ability to transmute society through judicial activism.

Even in India, public interest litigation has revolutionary potential if our ‘robed brethren' are really socialist and secular. They do not always possess in plenary fashion such a dimension in terms of perception or vision. On the contrary, some of them often tend to yield to class bias and political pressure by multinational corporations, or class-oriented prejudices. Indeed, some of them seem to be slowly succumbing to corruption by powerful vested interests. This is a grave danger.

Yet, the controversy raised by Mr. Shanti Bhushan poses a serious peril before this Republic's crimson future. Our tryst with destiny, articulated in the historic address by Prime Minister Jawaharlal Nehru, cannot be implemented since final adjudicatory powers under Article 141 and 144 lie with the highest court. To remain inert and indifferent to the attack is to be amoral and unethical to constitutional mandates. If this Republic is a live constitutional instrumentality, it has received stab wounds on its chest. Our Supreme Court Judges do have a moral stature.

If Parliament has a sense of shame, now is the time to act: it cannot wait till tomorrow. Mr. Shanti Bhushan has dared the court. Of course, he will get an opportunity and has an obligation to the nation to prove the truth of his charges. Not to act on the matter will amount to cowardice, timidity, bankruptcy, and an unworthy submission to his audacious invasion on the credibility of India's highest moral authority, the Supreme Court.

Parliament must act. Let the Prime Minister move a resolution asking the two Houses to meet and pass a motion appointing the highest-ever quasi-judicial body to sit and inquire into any judicatural retreat from their oath of office. This will involve issues of grave importance. It is no longer Bhushan vs. the Supreme Court. It is the people's right to have a paramount Supreme Court of justice. This nation is greater than Mr. Shanti Bhushan and it cannot have a moral backbone if these charges are not publicly enquired into and consequent changes are made — so that the Supreme Court may shine supreme.

Any Commission or Tribunal that is created should not be confined to the charges in its ambit of enquiry. The public must be able to bring any other charges against the judges of the highest court. This will be a historic, epic tribunal to try its own judges without fear or favour and cleanse the system of any bad elements. Frame a performance prescripttion, punish any guilty judges.

Or if Mr. Shanti Bhushan fails in his bid, let him face the consequences of his phenomenal folly. There should be no secrecy but only transparency, no contempt proceedings to hide delinquent conduct. This will be an epic battle more important than the making of the Constitution — a national hearing by a superlative tribunal. I suggest the Chief Justices of all the High Courts plus the Speaker and the Chairpersons of the two Houses sitting as a body assisted by the Attorney-General and the Solicitor-General. During the course of these proceedings, ad hoc judges may be appointed to hear cases. The marathon process will involve sittings on three days a week. The other four days could be set apart for their regular judicial work. Such a tribunal will be unique — a brave judicial odyssey. For, never has there been such a spiritual or civil challenge to a nation's supreme body.

Let us not be afraid of doing the right thing at the right time. Anybody who comes up with charges must suffer punishment if these turn out to be unproven. Nobody can escape after levelling allegations frivolously, nocently, malignantly and mendaciously. Mr. Shanti Bhushan and Prashant Bhushan will either go down in history as tremendous challengers of evil or run afoul of the law for having raised frivolous charges. Justice shall be done to the judges, and equally to those who have levelled unproven charges. Those who seek to defile the system through blackmail will be punished, unless they are able to back up and prove the charges.

The collegium

Meanwhile, there is one more item of great relevance and importance to be considered by Parliament. This involves the collegium created by a judgment of the Supreme Court to make appointments and recommend the transfer of judges of the higher courts. This instrumentality is the creature of a judgment with no foundation in the Constitution. It constitutes an usurpation of the powers of the Executive with no guidelines whatsoever. It has played havoc and deserves to be demolished by parliamentary correction, by means of an amendment to the law. The collegium is answerable to none, and acts without transparency. Instead of waiting for a larger bench to eliminate it, a constitutional provision must extinguish this instrument.



Learning

 3 Replies


(Guest)

GOLDEN WORDS of a living legend!

Thanks Reddy Garu.

1 Like

Democratic Indian (n/a)     23 September 2010

Thank you Mr. Reddy for letting members of LCI know. Mr. V.R. Krishna Iyer has indeed written the right thing. Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon Clap MSN Emotion / Emoticon

I would take this opurtunity to add the following:

Our endemic corruption lies in Article 311 of our constitution because we have a provision to safeguard corruption and make bureaucrats stay away from being sensitive to the problems of common people.

The nature of endemic corruption is that it flows Top Down. If an underling is corrupt and his higher authority is not, the underling is unlikely to last very long in his position. Worse, he runs the risk of being punished for the crime, sooner or later. Thus corruption is top down. It is as simple as that.

Corruption happens when a person holds the power to permit or deny an applicant. And is not accountable for the decision – or lack of a decision – to the applicant. This is the– no accountability to stakeholders. This immunity from prosecution or punishment is provided by articles in our (Indian) constitution. Suffice it to say that in India, we need the permission of the perpetrator’s highest authority (often The President) to even investigate let alone prosecute him. This argument has been used since the British Raj and the new rulers, the so called civil servants took it forward with glee.

When the size of the organization becomes unwieldy and very decentralized as is the case of government in India, the need for protection against misuse must gain far greater weightage. The permissions must also be decentralized and so must be the criteria for granting such permissions be less protective.

Rampart corruption in bureaucracy shows the crucial failure of “Doctrine of pleasure” incorporated in the Indian constitution to protect government servants by giving them almost total everlasting unqualified immunity. How can a person who is not accountable to you and me be a servant? Some will be quick to point out that they are called government servants, not yours or mine. That only means government, in our democracy, isn’t the servant of the people. Thus, there is no accountability of government. And that’s where all corruption starts. No accountability. Specific accountability, not general, vague, ‘answerable to the people’ kind of accountability.

I suggest that at the very heart of our endemic corruption lies Article 311 in our constitution. This is where it all starts. The magic cure for eradicating corruption is to drop this unqualified, everlasting, personal immunity to each and every civil servant from being a constitutional right. The legal brains can figure out how it’s to be done. But the important thing is to eliminate the protection against accountability to stakeholders being restored.

Doctrine of pleasure and its proviso article 311 of Indian Constitution:

The doctrine of pleasure owes its origin to common law. The rule in England was that a civil servant can hold his office during the pleasure of the crown and the service will be terminated any time the crown wishes the same rule is applied in India. The member of Defence services or civil services of the union or All-India services hold their office during the pleasure of president. Similarly member of state services holds the office during the pleasure of governor. the provisions related to services under union and state is contained under part XIV of the Indian constitution.

The article 311 acts as a safeguard to civil servants. It reads as under;

(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges: Provided that where, it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply —
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."

Where there is an infringement of Article 311, the orders passed by the disciplinary authority are void ab-initio and in the eye of law "no more than a piece of waste paper" and the Government servant will be deemed to have continued in service or in the case of reduction in rank, in his previous post throughout.

Ld. Lawyers please think, what rights or principles of law and justice Article 311 is violating for the stake holders. Is there any way how this unqualified constitutional protection to the so called public servants be removed.

1 Like

N.K.Assumi (Advocate)     05 February 2012

Thus Speak the Living Legal Legend of this Nation. Thanks for posting in the forum


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