In-house probe into Jagan's charges against Justice Ramana needed, says Justice A P Shah
This is not just a case about a politician and a judge. It is a much larger, systemic problem. For the past few years, the judiciary has been hurtling from one crisis to another, Justice Shah said.
Andhra Pradesh CM Jagan Mohan Reddy's allegations against Supreme Court judge Justice N V Ramana have shaken the people's faith in the judiciary. Mere condemnation (of the allegations) will not solve the problem. An in-house inquiry must be ordered, retired Delhi High Court Chief Justice Justice A P Shah tells Kanu Sarda. Full interview:
Jagan Mohan Reddy has alleged that Justice N V Ramana's daughters are involved in questionable land deals because of which Justice Ramana is interfering in the working of the Andhra Pradesh High Court. Jagan took the extreme step of going public with the letter containing the allegations. Are the allegations justified and the manner of making them justified?
I think it is important to differentiate between the two sets of allegations made - firstly, against Justice Ramana's daughters etc. and secondly, regarding Justice Ramana's alleged interference in the High Court at the behest of Jagan's political opponent. These two matters must be treated differently.
In the first matter, an FIR has been filed in which Justice Ramana has not been named. In the second matter, even though no formal request has been made by Jagan to inquire into the allegations, he has named some High Court judges and supposedly provided material in support. It matters little now as to whether it was appropriate for one constitutional authority to make public remarks about another constitutional authority in this manner. The allegations are now public and must be dealt with publicly. This is absolutely essential for the judiciary.
The judiciary must recognise that a considerable degree of faith is reposed in the institution and allegations such as these dent public perceptions of judges and the court system. If an in-house committee must be set up to examine the matter, or the Chief Justice of India must himself enquire into certain aspects, so be it.
There is a view that Jagan wrote the letter because an SC bench headed by Justice Ramana is hearing a case relating to MPs and MLAs accused in criminal cases in which Jagan is also an accused. Bar associations have termed this as an attack on the independence of the judiciary and there is also a call from certain sections to take action against Jagan. What is your view?
This is probably the first time that allegations of this nature have been made against someone who is about to take up the highest judicial office in the land. In that sense, it is unprecedented. And it is doubly unprecedented that a sitting Chief Minister has dared to do this and chosen to make the allegations public.
So long as the allegations are not inquired into, the allegations will continue to remain alive in the minds of the people. With this letter alone, the faith of the people in the judiciary is shaken. The judiciary cannot afford to remain silent and must follow due process and equally importantly, due process must be seen to have been followed.
If the outcome of the judiciary's inquiries is that Jagan's allegations are unsubstantiated or are motivated, surely the court could take action against the politician.
In any event, the gag order that has been issued by the Andhra Pradesh High Court on reporting on the case neither solves nor addresses the problem. To say the least, the order is unprecedented and contrary to the law laid down by the Supreme Court. The letter and the allegations are now public. A gag order almost makes the judiciary seem ostrich-like, burying its head in the sand, unwilling to face the real world and tackle problems head-on.
What should be the CJI's next step?
The Supreme Court should respond in a measured way. Mere condemnation will not solve the problem. The judiciary should be vigilant and protect its image.
In my view, there should be an inquiry through the in-house procedure, especially regarding the land acquisition allegations. An in-house inquiry might reveal that the allegations are in fact completely motivated and false. But so long as the allegations remain unproven, they will weaken the judiciary.
Allegations like this linger, which is why definitive and certain closure in these matters is essential. The decision to hold an in-house inquiry rests with the Chief Justice of India. But the fact is that the judiciary’s position will be strengthened if an in-house procedure is followed.
On the second allegation, regarding interference in or influencing political matters, the working assumption is that this is a far-fetched allegation. Even so, this too needs to be resolved and closed. This is not a matter for an in-house inquiry. Instead, the CJI should personally inquire into the matter.
There is a precedent for this. When Justice J S Verma was the CJI, he personally went to some High Courts where there were controversies and allegations and spoke to the judges, bar representatives etc. He formed his own opinion based on these conversations and took a decision. The current CJI could consider adopting the same method. The CJI is one person right now who can protect the judiciary from this situation it is in.
Lastly, I am of the view that the case about the land deals should be heard by those who are not named in the letter and the cases should be heard in a transparent way and urgently.
What role has the collegium system of appointment of judges played in creating this situation? Does the appointment system need transparency or should we have a system like the National Judicial Appointments Commission?
This is not just a case about a politician and a judge. It is in fact a much larger, systemic problem. For the past few years, the judiciary has only been hurtling from one crisis to another. It started, arguably, with the four judges' press conference and the shocking allegations that judicial benches were being manipulated. The crisis has persisted with successive CJIs, and arguably, Jagan has merely picked up on all this. We should have seen something like this coming.
Whether this is the fallout of the collegium is a trite question. Under the Constitution, the Supreme Court has no administrative control over the High Courts. But the collegium changed the power dynamics considerably. Where once a High Court Chief Justice (Justice Chandrashekar in Karnataka) could prevent a CJI (Justice A N Ray) from sitting and observing courtroom procedures, today, things are very different.
Now, a Supreme Court judge, even if not in the collegium, is always consulted in matters relating to their parent High Court in matters of appointment, promotion or transfer. As a result, the future prospects of a High Court judge also depend on the whims and fancies of senior judges in the Supreme Court. Every judge in the Supreme Court, therefore, carries a lot of clout, although some of them wisely do not use it.
Because appointments, promotions and transfers are all affected, a culture of sycophancy has been cultivated. Subservience is the norm. The only way to tackle this is to streamline the appointment system, ideally through an appointment commission.
I have long held the view that the so-called collegium system of judicial appointments is a fraud on our constitution. The collegium operates like a club or a cabal and it is essentially undemocratic. Cases of questionable appointments and arbitrary transfers abound in India. Besides the instances of Justice S Muralidhar and Justice (Akil) Kureishi, two judges in the Andhra High Court, that is Sanjay Kumar and S P Bhat, were inexplicably and controversially transferred. The collegium system and the informal consultation procedure I described above are most certainly to blame for these arbitrary decisions.
Does the Indian judiciary need a proper accountability system for judges to address situations like these?
As accountability measures, we have, on the one hand, a complex and difficult-to-execute impeachment procedure and the relatively weak and informal in-house committee method. There is nothing in between and there is no clarity on penalties for aberrant action on the part of judges. As allegations increase in number and as institutional reputation deteriorates, a robust, clearly delineated accountability system for judges is the least we deserve. There is unfortunately no statutory or constitutional basis for such a mechanism.
The Accountability Bill proposed some years ago was allowed to lapse. Even if partly flawed, it could have been a foundation for commencing essential judicial reforms. We urgently need an accountability mechanism that is hard coded in statute or regulation, like in the UK and the US. Penalties are an essential component, especially less severe versions of impeachment.