Question of propriety

ON April 8, the Supreme Court collegium comprising Chief Justice of India (CJI) K.G. Balakrishnan and Justices S.H. Kapadia, Altamas Kabir, R.V. Raveendran and Dalveer Bhandari decided to recommend to the government the transfer of Justice P.D. Dinakaran, Chief Justice of the Karnataka High Court, to the Sikkim High Court as its Chief Justice. Significantly, the Chief Justice of the Jammu and Kashmir High Court, Justice Barin Ghosh, was already scheduled to take the oath of office on April 13 as the Chief Justice of Sikkim following the collegiums recommendation made in March under the orders of the President.

In order to accommodate Justice Dinakaran in Sikkim, the collegium made another recommendation, to transfer Justice Ghosh to the Uttarakhand High Court. The Sikkim High Court has a total strength of three judges, including the Chief Justice.

The collegium might well have followed the procedure laid down in the Second (1993) and Third Judges (1998) Cases to transfer judges of the higher judiciary. The procedure includes consultation by the Chief Justice of India with the first four senior judges of the Supreme Court and with one or more Supreme Court judges who have knowledge about the High Court from which the transferee hails and about the one to which the transfer is made.

Besides, the CJI takes into account personal factors relating to the judge, his response to the proposal and his preference of places of transfer, before forming a final opinion, on the basis of available material, in the public interest for better administration of justice. These factors, including the response of the Chief Justice concerned to the proposal to transfer him, should then be placed before the collegium for consideration before it gives its direction.

Therefore, it is possible that Justice Dinakaran might have consented to the proposal to transfer him to the Sikkim High Court. But what caused outrage is the background to these transfers. On April 1, the same collegium, according to reports in the media, advised Justice Dinakaran to proceed on leave and recommended the transfer of the Acting Chief Justice of the Delhi High Court, Justice Madan B. Lokur, as the Acting Chief Justice of the Karnataka High Court.

However, within a week of this recommendation, the collegium realised that it had no powers to advise a High Court Chief Justice to proceed on leave. Justice Dinakaran has not been performing judicial work ever since Rajya Sabha Chairperson Hamid Ansari constituted a three-member committee to probe the allegations of land-grabbing and misconduct against him in pursuance of the House admitting a motion to remove him from office in December 2009. However, Justice Dinakaran continued to exercise his administrative responsibilities as the Chief Justice, and this reduced the options before the collegium.

Justice Dinakaran has not been performing judicial work ostensibly of his own volition, even though there have been vociferous demands from some sections of the Bar and the Bench that he should refrain from both judicial and administrative functions.

Therefore, by recommending his transfer to Sikkim, the collegium sought to send across a message that he was free to discharge his judicial responsibilities in his new office, abandoning his self-imposed ethical restraint. This was as if the Supreme Court was suggesting a way out of Justice Dinakarans moral dilemma. If he felt he could not discharge his judicial duties in Karnataka in view of the impeachment motion pending in the Rajya Sabha, how can he function in the Sikkim High Court as its head?

The bizarre argument, purportedly advanced by sources close to the collegium, was that the Sikkim High Court heard very few cases and, therefore, Justice Dinakaran could be given judicial work there. Justice Dinakaran may be competent to exercise judicial responsibilities in a High Court that hears more cases, but the question that confronted him and the collegium was one of propriety, and this continues to be relevant even after his transfer to Sikkim.

It may take the whole of this year for the impeachment motion against Justice Dinakaran to play out. First, the three-member committee has to submit its report after conducting a fair inquiry. Both Houses of Parliament will then discuss the motion for removing him from office and vote on it after giving an opportunity to Justice Dinakaran to defend himself. Meanwhile, propriety would suggest that Justice Dinakaran desist from discharging his judicial and administrative duties so that there is not even the remotest possibility of his influencing the discussion or voting in Parliament by virtue of being a Chief Justice. Resignation or voluntary absence in the form of long leave until Parliament votes on the motion to remove him is, therefore, considered an ideal option. This ideal is difficult to enforce in the case of a High Court chief if he does not have great regard for propriety.

The Sikkim High Court Bar Association naturally felt slighted by the collegiums decision, which seemed to imply that propriety did not matter in the case of a small and remote State like Sikkim. The Bar Association has threatened to boycott the swearing-in ceremony as well as Justice Dinakarans court.

Justice Dinakarans transfer also raises the larger issue of the Supreme Courts supervisory powers over High Courts. The High Courts are the highest courts within the States. They exercise the power of superintendence and control over subordinate courts and tribunals. The judges of High Courts enjoy a prestigious status in the administration of justice. The transfer of High Court judges, therefore, is likely to influence the independence of judiciary and judicial discipline.

The Supreme Court does not enjoy any administrative control over High Courts, even though it occupies a superior position on the judicial side because of its appellate role. The collegium system of appointment and transfer of judges has given the Supreme Court an informal mechanism to exercise control over the judges of High Courts.

According to analysts, the presence of a certain number of vacancies in the Supreme Court and the High Courts facilitates this informal exercise of influence over High Courts through the carrot-and-stick policy. It is this perception of its influence that perhaps made the collegium advise Justice Dinakaran to proceed on leave.

The collegiums opaque functioning must be understood in the context of recent attempts by CJI Balakrishnan to resist disclosure of information about his office. Disclosures under the Right to Information (RTI) Act, however, have brought to light his serious misgivings about the Act. Legal observers, however, dismiss this as a misplaced concern.

The Supreme Courts reply to the RTI activist Subhash Chandra Agrawal has revealed that it was the CJI who directed the Supreme Court registry to appeal against the verdict of the Single Judge of the Delhi High Court, Justice Ravinder Bhat, before the Full Bench of the High Court. Both Justice Bhat and, subsequently, the Full Bench held that the CJIs office would come under the RTI Act. As this opened the possibility of the collegiums recommendations coming under scrutiny, the Supreme Court registry appealed before the Supreme Court itself against another decision of the Central Information Commission directing it to share the details on the process of appointing specific judges with an RTI applicant.

Even as this appeal is pending, the Prime Ministers Office has disclosed the CJIs correspondence with the Prime Minister in September-October 2009 wherein the CJI made an intriguing plea to Prime Minister Manmohan Singh to amend the RTI Act. The disclosure, made in response to Agrawal, reveals that the Prime Minister irrespective of the CJIs concern that the correspondence between him and the President or the Prime Minister is a privileged document and should be out of bounds for an RTI applicant believes that it should be disclosed at least in accordance with the law as it stands today.

In his letter dated September 16, 2009, the CJI told Manmohan Singh that he earnestly and sincerely felt that Section 8 of the RTI Act needed to be suitably amended by inserting another specific clause to the effect that any information that would prejudicially affect the independence of the judiciary should be exempted from disclosure under the provisions of the RTI Act.

The CJI apprehended that pursuant to the decision of Justice Ravinder Bhat, and in view of the wide definition of information under Section 2(f) of the RTI Act, several confidential and sensitive matters that were exclusively in the custody of the CJI might have to be disclosed to applicant-citizens exercising their right for such information. Undoubtedly, he claimed, it would prejudicially affect the working and functioning of the Supreme Court as it would make serious inroads into the independence of the judiciary.

Among the instances of sensitive information concerning the judiciary, the CJI cited the following:

Matter of appointment of judges of higher courts; written opinions/views as to the suitability of prospective candidates obtained from informed/conversant judges and/or other constitutional authorities; judgments/orders prepared and circulated to other members of the Bench before they are officially pronounced in open court; complaints making serious allegations against sitting judges of higher courts received by the CJI; consequent proceedings of the inquiries conducted in terms of the in-house procedure, adopted by the Full Court of the Supreme Court in 1997 and the Chief Justices Conference in 1999; notings and minutes recorded during arguments in the courts.

The CJI claimed that if privileged documents such as these were allowed to be disclosed, it would pose a threat to the independence of the judiciary. He pointed out to the Prime Minister that there could be many other types of information falling in this category.

The CJI was not happy with the framers of the RTI Act (which included the Prime Minister himself) for not visualising its far-reaching implications. The Prime Minister informed the CJI that he had asked Law Minister M. Veerappa Moily to look into his suggestions.

Another disclosure, by the PMO, of correspondence between the Prime Minister and the chairperson of the United Progressive Alliance, Sonia Gandhi, (also to RTI applicant Agrawal) revealed that the Prime Minister was favourably inclined to amending the RTI Act on the lines suggested by the CJI and that Sonia Gandhi was against it. Sonia Gandhi wanted the government to adhere strictly to the original aims of the Act and refrain from accepting or introducing changes that would dilute the very purpose of the Act. The Prime Minister, however, disagreed, saying that there were some issues that could not be dealt with except by amending the Act. He, however, assured her that any amendment would be considered only after consultations and would not dilute the spirit of the Act.

If this correspondence was a clear illustration of how senior functionaries of the ruling party discussed contentious issues, the sharing of the same by the PMO with an RTI applicant only helped fulfil the objectives of transparency.

Critics of the RTI Act may argue that divulging such correspondence might create an impression of dissension in the top echelons and any decision taken on the RTI Act could be misinterpreted as submission of one authority to another. The contrary argument could be that the openness of top dignitaries to consider suggestions from any quarter would promote a democratic spirit in society and serve as an antidote to arbitrary decision-making.

In the light of this, the Prime Minister and the CJI ought to ask themselves whether the disclosure of their correspondence posed a threat to the independence of the judiciary. Obviously, it has not. The collegium too, in the aftermath of its decision to transfer Justice Dinakaran, must consider whether its opaque functioning helps to enhance or hurt the credibility of the judiciary.