The present atmosphere is surcharged with strong emotions. To take action or steps on account of this atmosphere will be contrary to the basic tenets of the Rule of Law. Media reports disclose that Supreme Court judge Justice Jasti Chelameswar’s unprecedented letter to Chief Justice of India TS Thakur that he won’t attend collegium meetings and that he was concerned over its lack of transparency has become an expedient football in the government versus judiciary controversy. Media reports tend to confirm that Justice Chelameswar sat through a meeting of the SC collegium which decided to defer a decision on the transfer of a judge who had practiced law with Justice Chelameswar’s son. These reports are disturbing because Justice Chelameswar is a member of the larger collegiums comprising the CJI and the next four senior judges. The question is not about the correctness of Justice Chelameswar’s decision. Functioning of the collegiums is of vital importance to our democracy and dispensation of justice in our country. The public image of the judiciary is certainly not heightened by these events. It is reported that the letter wherein Justice Chelameswar stated that he would not attend future meetings of the collegium and that the recommendations of the other four judges, including those of the CJI, should come to him “by circulation”. This unprecedented mess should be cleared at the earliest.
Remember Fred Korematsu: A native born American citizen of Japanese ancestry, Korematsu was convicted for being in a place from which all persons of Japanese ancestry were excluded. He petitioned the US District Court, N D California, for a writ to vacate his 1942 conviction on the grounds of governmental misconduct. During the hearing of the case before Judge Patel, a US judge married to an Indian citizen, some startling facts were brought out. It was established that the US government had knowingly withheld vital information from the court when they were considering the critical question of military necessity. Judge Patel concludes: “Korematsu… stands as a constant caution that in times of distress, the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability. That in times of international hostility and antagonisms, our institutions—legislative, executive and judicial—must be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused.”
This caution should be uppermost in judicial minds when the court is confronted with formidable and imperious claims of national security and public interest by the executive.
Bar and the Bench, the Two Pillars in the Edifice of Justice: Both the Bar and the Bench are essential for fair and civilised dispensation of justice. It is not unusual for lawyers at times to lose their temper when arguing cases, especially when the judge is dim-witted. Recently, the Allahabad High Court sentenced seven lawyers to six-month simple imprisonment and imposed a fine of `2,000 on each for contempt of court. This happened as a result of an incident in which some lawyers insulted an additional district and sessions judge at the Jalaun district court, based in Orai, on November 20, 2014. When the judge resented the action of the lawyers, they allegedly manhandled and insulted him. A fact-finding inquiry is said to have been ordered and media reports suggest that a case of criminal contempt has been initiated against the seven lawyers who were found guilty and who have also been barred from entering the premises of district court at Orai.
In my sixty years of professional practice, I have not witnessed such a deplorable state of affairs. This ugly mess must be urgently cleansed. Our judiciary is rightly considered as an excellent institution where lawyers argue with vigour and judges manning the court respond attentively to the lawyers’ arguments, even if they may be off the mark at times. It is essential that we do not make a mockery of the traditional cordial relationship that has existed between practising lawyers and judges manning the courts. We need not set new examples.
Soli J Sorabjee
Former Attorney-General of India
solisorabjee@gmail.com