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A judge blows his top

The moral authority of the Chief Justice of India “is of no value or significance” if he cannot make an “erring judge” fall in line – this is the view of Justice D.V. Shylendra Kumar of the Karnataka High Court.

india Updated: Jan 04, 2010 22:50 IST
Nagendar Sharma

The moral authority of the Chief Justice of India “is of no value or significance” if he cannot make an “erring judge” fall in line – this is the view of Justice D.V. Shylendra Kumar of the Karnataka High Court.

The “erring judge” in this case, though not named, is the chief justice of the Karnataka High Court, Justice P.D. Dinakaran, who is facing corruption charges.

The comments by Justice Kumar on his blog have raised important questions.

Top jurists say that issues unheard of in the higher judiciary – corruption, indiscipline, caste bias, etc – are the main reasons behind such airing of views.

However, opinion is divided on the extent to which a serving judge should exercise his freedom of expression – the way Justice Kumar has done.

Justice Kumar had in another context said a majority of judges were in favour of making their wealth details public. This led to a voluntary disclosure of wealth by Supreme Court judges.

Now he wants Justice Dinakaran, against whom impeachment proceedings have been initiated in the Rajya Sabha, to go on leave.

Justice Dinakaran has rejected the demand.

Following the rejection of his demand, Justice Kumar took an unusual step. He made his views public by posting his views on the blog.

“This kind of response from the Chief Justice (Dinakaran) has only confirmed my worst fears that he may even now continue to abuse and misuse his powers (including the powers to recommend the names of persons to be appointed as judges of the High Court after eliciting the views of his colleagues in the collegium) even when he is no more discharging his duties as Chief Justice of the HC,” Justice Kumar wrote on his blog on December 17.

But this was only a precursor to the bombshell he dropped on December 25. Without attacking Chief Justice of India (CJI) K.G. Balakrishnan, Justice Kumar said bluntly in public what was being whispered in legal circles so far.

Referring to the Justice Dinakaran issue and the helplessness of the CJI in the matter, he wrote on his blog: “The concept
that the Chief Justice of India, being the head of judiciary in the country, and therefore, can exercise his moral
authority to ensure that erring judges fall in place and behave themselves, is a misnomer and misconception.”

Going a step further, the judge used an expression many jurists completely disagree with. Justice Kumar compared the institution of the CJI to a “serpent without fangs”.

“I say so, for the reason that an errant judge is a person who has breached the moral code of conduct, is a brazen person on whom no moral authority binds, nor does he respect moral authority and therefore the so-called moral authority of the Chief Justice of India as the figure-head of the judicial family, has virtually no effect on such errant judges,” Justice Kumar wrote.

According to former CJI J.S. Verma, such comments will harm the institution of the judiciary. “I am not going into the merits of what he has said, but certainly there were other remedies available to the judge instead of rushing to the public.”

Veteran lawyer and former law minister Shanti Bhushan disagrees with Justice Verma. “Justice Shylendra Kumar’s views are justified. What do you do when the high court chief justice, who should be sitting at home, is still discharging administrative functions and the CJI has no power to take action?”

Another former CJI V.N. Khare appeals for restraint on all sides. “In my view the CJI should have advised Justice Dinakaran to proceed on leave and Justice Kumar should have desisted from going public.”

It is wrong to assume that the CJI’s office has limited powers and cannot intervene in matters related to high courts, Justice Khare says.

“There are many examples in the past when the CJI forced high court judges found involved in corruption and other unethical practices to resign,” he said.

“I asked Justice Shamit Mukherjee of the Delhi High Court to resign in 2003 after it was brought to my notice that there were serious allegations of corruption against him,” Justice Khare said.

Former Chief Justice of India P.N. Bhagwati is of the view that judges should sit down and resolve issues amicably. "Every judge must be given a chance to air his/her views on the appropriate forum and they must feel valued to avoid erosion of credibility of the institution."

Chennai-based Forum for Judicial Accountability, led by veteran lawyers Sriram Panchu and R. Vaigai, have defended Justice Kumar. “He has merely started a debate on the powers of the CJI. What is wrong in it?” the Forum said.