Allegations against CJI: Inquiry will strengthen the independence of the judiciary

If someone is conspiring against the judiciary then we must find out who they are.

Rakesh Dwivedi | April 22, 2019


#law   #Chief Justice of India   #Supreme Court of India   #sexual harassment  


Yes, we must stand rock solid with the judiciary and the judges. We must protect the independence of the judiciary too. What does this mean in the present context of a very serious charge of sexual harassment levelled by a former employee of the court against the CJI?  We are told that there is a larger conspiracy to “deactivate” the CJI and wreck the independence of the judiciary. We are also told that some Left-oriented and Congress-oriented web portals and lawyers are raking up this issue to destabilise the judiciary. Though I am sceptical of this theory, but if true it becomes a yet more serious matter to enquire into speedily by a high-level committee. 

 
This counter-charge levelled by howsoever mighty should not be a device to pulverise the lady employee to silence or make her withdraw or drop her complaint. This also cannot be a method systematically used to trash the charges without an inquiry. This also cannot be allowed to be like the famous ‘foreign hand’ thesis deployed to explain away adverse situations. If someone is conspiring against the judiciary then we must find out who they are.
 
But can we discover the conspirators without an inquiry? The impartial inquiry alone will tell us whether the charges are true or false, and once the falsity is established the conspirators would be found. This is not a matter of conflict between political parties – the Left, Right or Centre. All should support the impartial inquiry which affords the complainant full opportunity to present her case. Whether the CJI should stop functioning for a while or not should be decided by the full court. I personally feel he should stop if and when the inquiry committee finds a prima facie case against him. But if an inquiry is avoided, it would be a serious setback to the independence of the judiciary. 
 
One wonders whether the Kesavanand Bharti case devised the concept of ‘the independence of the judiciary’ to shield judges from any charges levelled against them. It is a concept which ensures functional independence from the influence of the executive, parliament and outside influences. If this protects the judges from misdemeanours then it is going to be a disaster, as judges right down to the district courts can use this to brush aside any serious charges against them. Here is an employee who has worked with the CJI, has filed an affidavit, annexed evidence, and chosen to circulate complaint to brother judges of the supreme court. That was a right step. Web portals only published the same. They also said that the court has rubbished the charge. That was a fair exercise of media rights under Article 19 of the constitution. Now only an inquiry can clear the mess and determine who is at fault and guilty.
 
The supreme court has ruled “Be you ever so high you are not above law”. That is rule of law another jewel in the crown of Basic Features. Will the supreme court sound the burial of the doctrine of basic features just because a chief justice is involved. Are we relapsing to a feudal monarchical system where “The Crown does no wrong”? Whither the supreme court of India? India looks towards you to set standards, or rather to live and shine by your standards. I am confident that the socialist democratic republic would give the lady a chance of hearing. Kasab was given. She is an Indian.  
 
So far the supreme court has acted as if it is shaking on account of the charge of a former employee. Look how the CJI speedily constituted the bench with himself as its head. To hear what? A suo motu petition. Where were the pleadings and facts or reliefs? That was unfurled in the courtroom by the CJI. So he was the petitioner. And was the charged person. And he also presided over the proceedings. He also argued. The other two judges simply joined and signed an order. I assume they had not made any inquiry earlier and were not briefed by CJI and they sat with open mind. Upon hearing the CJI they should have issued notice to the lady and the web portals that reported her complaint if they were convinced. Why was a notice not issued? The reason is obvious. It was suo motu and ‘judex in causa sua’ (‘no one should be a judge in his own case’). And who suffered? Democracy, liberty, rule of law, justice, equality… verily the preamble of the constitution. It appears that before the bench sat the full court was not consulted. Why was the full court not convened? This is another trend which reflects a lack of trust in brother judges. 
 
We realise that judges are vulnerable and charges can be levelled easily by dissatisfied litigants or others. But judges are the high priest of the Temple of Justice. They have to be seen as spotless. The ‘agnipariksha’ through an impartial inquiry should not be avoided nor should charges be trashed without inquiry. Ramayana shows the path: When a dhobi expressed doubts, Lord Rama ordered Mata Sita to undergo an agnipariksha. This alone would strengthen ‘the independence of the judiciary’.
 
Dwivedi is a senior advocate, the supreme court.
 

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