New Delhi: Andhra Pradesh chief minister Jagan Mohan Reddy’s open letter to Chief Justice of India S.A. Bobde making allegations against Justice N.V. Ramana – next-in-line to be CJI in April 2021 – has led to a schism of sorts within the Supreme Court Bar Association (SCBA).
In a resolution that was signed by its acting hony. secretary, Rohit Pandey, the SCBA simply says that the executive committee held its meeting on October 16, 2020 which “strongly condemned” Reddy’s action in placing his letter to the CJI in the public domain. “Such actions by constitutional functionaries are opposed to conventions, causing serious inroads impacting the independence of the judiciary as enshrined in the Constitution of India”, the resolution concludes.
The Wire understands from its sources that the EC met virtually and that the resolution was approved by a majority of its members. The EC’s strength is 20 members. Of them, 16 attended the virtual meeting, and others sought leave of absence as some were not in town, according to the SCBA’s vice-president, senior advocate, Kailash Vasdev.
As the minutes of the meeting have not been uploaded on the SCBA’s website, the list of 16 members who attended the virtual meeting is not immediately available.
Chander Uday Singh, one of the senior executive members, who supported the resolution told The Wire: “My understanding is that it was passed unanimously by all present at the meeting without a single dissent.”
However, The Wire has learned that the SCBA president, Dushyant Dave strongly dissented from the resolution.
Dushyant Dave dissents
Dave, in a communication addressed to Rohit Pandey, stated: “I am really sorry at your mail [informing him about the adoption of the resolution by the EC]. I have continuously refused to be part of this resolution and have not participated in any consultation with you. I strongly oppose this resolution in principle.”
Dave continued: “We have no idea about the truthfulness or otherwise of [Jagan’s] allegations. Truth will emerge once the inquiry, if any is done. At this stage, we would be pre-empting the inquiry. I am sure at the end of inquiry truth will emerge and if allegations are found false, SC must initiate contempt proceedings against the CM. Today, it is premature to pass the resolution much less the kind you all propose”.
Dave went into the recent past wherein the Supreme Court was caught in many controversies, but has not recovered from them unblemished. He told Pandey in his official communication:
“You must remember that the judiciary is one institution which is completely opaque and no action is ever taken against erring Judges. The Supreme Court is also not open and transparent. In the suicide note of Kalikho Pul (former Arunachal Pradesh CM), two Judges were named specifically, who later became the CJs of India. In the sexual harassment complaint by a hapless lady, CJ Gogoi was directly implicated. The SC conducted a “wishy-washy” inquiry and gave him a clean chit. She was dismissed and arrested in a false criminal case. Later, the case was dropped as police found no evidence to proceed and complainant withdrew complaint. The reference to Justice Patnaik to inquire into larger conspiracy remains in limbo as his report is not made public. Ultimately, the lady has been reinstated in service with full back wages, proving her innocence and her charge.
“Yet, Bench and Bar have remained moot spectators.
“There are many disquieting developments taking place in the court daily and yet no voice is raised. Every now and then I get complaints from young lawyers that their matters don’t get listed while those of influential AORs get listed. I intervene to help them.
“What does it all go to show?
“I think Judges have lot of explaining to do. Yet, we the Bar remain silent spectators. This damages the great institution of the SC instead of improving it. We must introspect as to how we can strengthen the court and justice delivery system.
“But passing the resolution is simply not a step in that direction. I place on record my strong reservation on the same and regret deeply my inability to join you Friends!”
If Dave’s arguments against the merits of the EC’s resolution are valid, then the EC’s claim that Jagan’s letter to the CJI breaches “convention” which causes serious inroads impacting the “independence of the judiciary” may also be open to debate.
Does transparency weaken judicial independence?
As the resolution makes it clear, it is not against Jagan’s letter as such, but disagrees with his decision to place it in the public domain. Does the EC then suggest that by being transparent regarding his letter to the CJI, a constitutional functionary like the Andhra chief minister, breached some ‘convention’ and thus adversely impacted the independence of the judiciary?
What if Jagan had not shared his correspondence with the CJI with the media, but leaked it unofficially, would the SCBA still have blamed him? What if Jagan’s letter to the CJI remained confidential for ever – as Kalikho Pul’s suicide note did, till The Wire published it in February 2017 – and the CJI too ignored it? Would that prospect provide a guarantee of the independence of the judiciary?
It is clear that various professional bodies, such as the Delhi High Court Bar Association, Bar Council of India, and the Tamil Nadu Advocates Association, like the SCBA, have expressed similar concerns over Jagan’s letter, without shedding light on how the placing of his letter in the public domain would impact the independence of the judiciary. Those who value transparency, on the contrary, would suggest, however, that the independence of the judiciary would be strengthened if by placing Jagan’s letter to the CJI in the public domain, the higher judiciary may come under compulsion to come clean, and in the process, enhance its credibility, and as a corollary, its independence.
Ball in CJI Bobde’s court
As the senior lawyer Sriram Panchu has noted, the onus is now on CJI Bobde “to evolve a fair and transparent process which enables Justice Ramana to clear his name; brotherly absolution and Pandora’s boxes will cause damage to both man and institution.”
Like Dave, Panchu too made reference to the court’s recent past. “Here one may express an anxiety which is dogging us for quite some time about Chief Justices of India falling short of the standards of integrity and probity,” he wrote. “The office of the CJI is the most august one — pater familas of the legal system, master of the roster, decisive say in appointment of the next generations of judges — it does not get more powerful. We deserve to get the best CJI we can get.”