My good friend Pramod who is a lawyer has this to say about my post of yesterdays. This is his response on Facebook where I as usual advertised that I had made a new post. This post is not just to show the other side of the spectrum but also to let everyone know that since he is a lawyer by training and profession he knows better than I do. The only thing I can say is the I made an honest mistake, not something deliberate and I stand corrected. I also apologise to you all for putting up a post that was not very accurate and hence committed the same mistake that the media did. Thank you Pramod for correcting me and sorry friends for overstepping a few proprieties myself.
- Satish: Two things that you need to remember. Former Puisne Justice (of SCI) Sri Krishna is a former member of the judiciary, and not the current member of the judiciary. There is a whale of a difference before you start pontificating about whether one member of the judiciary ought to be commenting about the opinions of another member of the judiciary. There are enough instances of how former members of the judiciary have denigrated the judiciary by getting involved in commissions that are called "judicial commissions" even though such a legal concept does not exist under the relevant laws. Politicians have used former members of the judiciary to give thin cover for their decisions. So, Satish, maybe you want to get your constitutional theory right about who is saying what, and issues of constitutional impropriety? And you may be in contempt of court for having denigrated a judge's comments deliverd in the course of a judicial decision making process about a non-judicial process? Maybe that constitution ought to be re-dusted?
If you must know, and in case you did not know already, at least three benches, and a few justices of the Supreme Court have stated vehemently that the use of the phrase "judicial commissions" is wrong, as a matter of law, and the way it has been used, to cover up garbage that has passed for commission reports, has brought great disrepute to the appellate judiciary. So no, Prof. Chandra, what the justice did was in the course of him rendering his official duties as a member of judiciary and in the course of rendering judicial functions, whereas that report which is riddled with lies, cooking of statistics and full of the pox is not the report of the member of a judiciary. Don't shoot from the hip Satish, based on newspaper reports.
Satish: A very simple question. Your post would suggest that you were there in the court room when the remarks were said to have been made by the justice - should I assume that you were indeed in tha court hall Satish or that you are depending on media reports for your post? Are you aware of the detailed context in which the remarks were made, for instance about the particular arguments that were advanced by lawyers? Were every single element of that exchange reported in the so called institutions of deliberative democracy, the media, that you hold dear? Do you think they are accurate? Absolutely certain about it? There was a judgment delivered by the Supreme Court of India about a very infamous business case involving two scions of a business house last year. The stupid media reported it as a 2-1 judgment in favour of the elder brother. The f&%$ing ar$e&Oles in the media had not even bothered to read through the judgments, and only ToI had the guts to admit that the second opinion was even harsher than the first one, and both opinions were in favour of the GoI and not either of the brothers. Satish, for Go'd sake, if you do care about institutions, stop being "at it again" unless you get the facts straight, and can distinguish between a rendered opinion and comments in the course of hearings in a court of law. Stop being Arsenio Hall, if you truly care about constitutional institutions.
Satish, every judgment is potentially subject to review by an appellate authority. Now if your logic that you were to advance were to hold then no judge at the lower level of the hierarchy need ever give his complete and true opinion, about facts and material placed before him/her on the ground that he/she could be set aside at the higher level. That would pretty much be the death of constitutional institutions, such as the High Courts, and even more devastatingly than what Prof. C.P. Bhambri may have intended by his remarks about acid. In any number of controversial cases, the decisions of High Courts have been set aside by the Supreme Court or upheld by it. So what are we to make of it? In this particular case you suggest that the judge should have waited for the release of the papers and then awaited a considered opinion? By who exactly? By the public, which does not bother to read those papers, or render his opinion in the course of settling a constitutional question raised by a litigant in front of him? Are you opposed to the judge rendering a decision at all? Or are you opposed to him rendering it in a particular manner? Or are you suggesting that in all such cases, the High Courts merely kick the cases upwards to the Supreme Court, because it is the final stop? If in every controversial case, we are to wait for the judgment of the "deliberative process" then we would never have a resolution, as a practical matter. As a reminder of our constitutional history Satish, please do acknowledge the fact that when in Delhi the justices of the Supreme Court of India had bowed down to the tyrannical powers being claimed by the Central Government, many decent judges in the High Court found ways to not subserve what they perceived to be the cravenness up above. They may have done more to protect the deliberative politics we all talk about, than what the SCI did in some very dark days.
Pramod,You are a lawyer by profession so you must know better than I do about functioning of the judiciary. So I will accept everything you say as true. I will only say that when I have talked about institutions in Andhra Pradesh withering away, I was also talking of the legislature and the executive and not just the judiciary. Thank you for correcting me. It does seem like I was shooting from the hip.
It takes moral courage and intellectual integrity to admit one's error. Bravo, Satish.
ReplyDeleteDear Satish: In these times, fraught with passions about some cause or the other, all that may be left would be constitutional functionaries who render their duties fearlessly. The particular justice, whose comments you had taken exception to, is generally acknowledged, even by his most vehement detractors, to be a person of great integrity. That does not mean that one need not form an opinion that is different from his, or oppose it or even express the opposition. However, one needs to be very careful in expressing disdain, opposition or harsh words against the judiciary because within the constitutional order it is the weakest, and can only depend upon the moral force it can exert on the people and in turn the support it derives from people, in the ultimate analysis, for survival against potential conflictual situations, sometimes inevitable in a country like India, with the executive or the legislature. We do need to acknowledge that even the judiciary may sometimes make mistakes, of both assessment of facts and also of opinion as to what the law is. That is inevitable because the judiciary is also human, and in the Indian context functions in extremely difficult circumstances.
ReplyDeleteOn an average, each High Court judge renders an opinion on a few thousands of cases per annum - can you imagine the amount of their workload? It is not like disposal of "files" by the top executive, which come to them after review and vetting by a slew of officers and clerks all along the bureaucratic chain. Each case, before a High Court Judge, needs to be studied as thoroughly as possible, and in many cases de novo, before a judgment is rendered. Given the paucity of funds allocated to the judicial/legal functions in the budget, and I will hold deliberately kept low by the executive, and the range of issues that judiciary has had to decide upon, the functioning of Indian judiciary may be an exemplary one. Whether it can continue to do so and for how long, under such conditions, is a matter of some concern for any one who cares about the functioning of a constitutional democracy.
With regard to the committee report, notwithstanding my own opinion about its veracity or of its quality, I will maintain that Justice Sri Krishna, himself, both as a member of the judiciary previously and as a former member serving his duties on various commissions, has been known for his integrity. Nevertheless, the functioning of commissions of inquiry, at both the central and state level, and use of former members of judiciary, would appear to be more susceptible to political pressures and less likely to be the considered kind that a formal judicial proceeding would be. On that count also, and as a matter of constitutional hierarchy of scheme of things, an opinion rendered by the judiciary, in the discharge of its judicial duties, would need to be given far greater weight and support.
Dear Pramod,
ReplyDeleteWhat you have pointed out in your FB posts as well as comments section of the blog is most valid. You are right that one should not comment on the basis of media reports which tend to extract comments out of their context and thereby imbue them with meaning that did not exist in the first place. I happen to know the Justice myself and I know that he is a man of great integrity. It must have been a "Momentary Lapse of Reason" that made me write like that, very over zealously. Thank you once again for correcting me. I will learn from my mistakes.
I think one needs to be careful about how a committee report is characterized. There have been reports of various commissions that have been acknowledged to be of fundamental significance in the constitutional schema, and with justification. Nevertheless there is a disturbing trend. In this particular case, the remarks of a High Court Justice are indeed alarming, to me, not because the hon'ble judge used particularly strong language, but because his comments reveal a potential problem with the manner in which the T question was handled by the committee. It was obviously authored by the entire committee and not just by Justice Sri Krishna. Justice Sri Krishna himself has been acknowledged to be a man of great integrity, and I think he may still, and ought to be, given the same respect. However, as a lawyer, I am more inclined to go with the opinions rendered by the judiciary in the course of discharge of its judicial duties. That huge amounts of money were spent on the functioning of the committee is only one part of the equation. The bigger problem is that the subject matter of consideration by the committee is one of immense political problems, and concerns the well being of the entire nation. That in a matter concerning such importance and a report on it a member of the judiciary has found enough cause about its veracity to make the remarks that he made, makes my head reel as to whether any former members of the judiciary ought to ever give their names for inquiry committee reports of this kind. Too many committees are being formed at the drop of a hat, armed with quasi judicial powers, without many of the procedural protections and limitations of a judicial proceeding, to deliver reports, most of which apparently then gather dust in the state archives.
ReplyDeleteSatish: Glad that you acknowledged the error; I have known you for nearly three decades, and it is my opinion that you have always shown a great deal of concern for protection of constitutional institutions. I think I was also extremely harsh in response to your blog, and my comments could have been more tempered. Please accept my apologies too.
ReplyDeleteLike I said on FB, I got what I fully deserved, so please do not apologize.
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