Jagan letter to the CJI breached executive-judiciary power separation, says Indira Jaising

The CM ought to have written to the governor, who would have then sent the letter to the President, who is the appointing authority of judges, says noted lawyer Indira Jaising.

Published: 25th October 2020 06:15 AM  |   Last Updated: 24th October 2020 07:52 PM   |  A+A-

Andhra Pradesh Chief Minister YS Jagan Mohan Reddy

Andhra Pradesh Chief Minister YS Jagan Mohan Reddy (Photo | EPS)

Express News Service

Andhra Pradesh chief minister Jagan Mohan Reddy violated the doctrine of separation of powers between the executive and the judiciary by writing a letter to the Chief Justice of India S A Bobde, senior advocate and former Additional Solicitor General Indira Jaising tells Kanu Sarda. Full interview:

Jagan Mohan Reddy has alleged that Justice N V Ramana's daughters are involved in questionable land deals relating to the Amaravati capital project and that Justice Ramana is interfering in the working of the Andhra Pradesh High Court. Do you think the allegations hold water?

It is not for me to make any statement on this issue since I am not privy to all the facts. But, as per media reports, an FIR has been lodged into the land transaction. It is true that the Andhra Pradesh High Court has stayed the investigation. The Andhra Pradesh government has also filed an appeal against the High Court order in the Supreme Court. Hence, the Chief Minister should know that the matter is sub-judice. His government needs to await the outcome of that special leave petition. 

I fail to understand why this issue found a place in the letter to the Chief Justice. He has no power to interfere with pending proceedings. Some have argued that the matter should go to an in-house committee. In my opinion, a matter that is sub-judice can't be the subject matter of in-house committee. I take it that the CM has confidence in his own police to probe the allegations and he should leave it at that. The rest is for the judiciary to decide.

Do you think it was proper of Jagan to have made public his letter to the CJI?

There are two issues here. 

The first issue is whether in his capacity as the CM he should have written directly to the CJI. The second is whether having done so he should have made the letter public. 

In so far as first issue is concerned, Jagan wrote in his capacity as the CM, not as an ordinary citizen. In a system, where there is a separation of power between the judiciary and the executive, the CM ought to have written to the governor, who would have then sent it to the President, who is the appointing authority of judges. The President would then decide whether to forward the letter to the CJI for his comments. Instead Jagan chose to communicate directly with the CJI. 

Second, the letter ought not to have been released to the press as it prejudices a sitting judge of the SC without his having an opportunity to respond. This leads me to conclude that the publication in the media was deliberate and an end in itself. This is also obvious from the fact that the letter seeks no remedy from the CJI. Further, the CJI does not have the power to address the grievances raised in the letter for the reasons mentioned above. Yet rightly or wrongly, as the matter is in the public domain, the other issues raised require a probe by a competent authority.

ALSO READ | In-house probe into Jagan's charges against Justice Ramana needed, says Justice A P Shah

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. Do you think there is a link between his letter and the case?

No comment. That may or may not be the case. I am more concerned with the institution of the Supreme Court of India. The issue is of due process of law, namely how to achieve accountability. There are legal remedies which he chose not to exercise.

What should be the CJI's next step, does he have to call a full court meeting to deliberate on the letter or does he have to set up an inquiry committee?

I have already said a pending matter cannot go before an in-house inquiry committee. The allegations about interfering with the functioning of the High Court amount to impeachable misbehaviour. If the CM is serious about the allegations and has sufficient material to back it up, he ought to activate the process of impeachment through his MPs in Parliament. He didn't do this. It is not for me to second-guess what the CJI will do, but I am pained by the fact that extra-legal remedies are being used in relation to the allegations, which are very serious. When these allegations are not followed up by available constitutional remedies, they tend to become an opportunistic attack on the judiciary. 

What do you think needs to be changed in the present system of appointment of judges? 

In my opinion the process should be completely transparent. I prefer the American system where a proposed appointee is scrutinised for his/her political background and views on issues of national importance such as gender justice, civil liberties, human rights, secularism and the right to free speech. Having a political affiliation should not be a disqualification for the appointment of judges. What is important is transparency so that we know where the person due to be appointed is coming from and can decide whether he/she should be appointed at all. Once an appointment is made, little can be done. But we do need a binding code of conduct for judges, which will isolate them from the general public and litigants and a mechanism to enforce that code. We do need a statutory complaints mechanism that is independent of the executive and the judiciary.

Does the appointment system need more transparency? Why is the Supreme Court not adopting the Memorandum of Procedure?

It is very difficult to comment on the issue of Memorandum of Procedure as the process of adopting the MoP is not in the public domain. It is also difficult to say what the differences are between the executive and the judiciary on the MoP. 

INTERVIEW | CJI must look into Jagan's charges against Justice Ramana: Dushyant Dave

What do you think is stopping the Supreme Court from having in place a grievance redressal system? Do we need a law to deal with this?

This requires a law so parliament should address this, not the judiciary. The Judiciary has put in place a ‘Restatement of values of judicial life’ as a code of conduct for judges. These need to be fine-tuned and made into a law. Similarly, the judiciary has put in place an In-house procedure. This, too, needs to be put on a statutory footing with a proper procedure for entertaining complaints and inquiring into them. 

Of late, the in-house procedure has become meaningless. Assuming that an in-house procedure finds wrongdoing on the part of a judge, its findings remain recommendatory as the CJI has no disciplinary authority over any sitting judge of the HC and SC.

Further, there is a procedure prescribed by the Supreme Court in the famous Justice V Ramaswami case for prosecuting a judge of the constitutional courts which requires the CJI's sanction. To the best of my knowledge no one has invoked that provision.


Disclaimer : We respect your thoughts and views! But we need to be judicious while moderating your comments. All the comments will be moderated by the newindianexpress.com editorial. Abstain from posting comments that are obscene, defamatory or inflammatory, and do not indulge in personal attacks. Try to avoid outside hyperlinks inside the comment. Help us delete comments that do not follow these guidelines.

The views expressed in comments published on newindianexpress.com are those of the comment writers alone. They do not represent the views or opinions of newindianexpress.com or its staff, nor do they represent the views or opinions of The New Indian Express Group, or any entity of, or affiliated with, The New Indian Express Group. newindianexpress.com reserves the right to take any or all comments down at any time.

flipboard facebook twitter whatsapp