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Updated: May 16, 2012 00:37 IST

Judicial propriety in an age of scandal

Arghya Sengupta
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The Hindu

Why Justice Dalveer Bhandari's election to the International Court of Justice while serving as a judge of the Supreme Court of India is an unhealthy development

Justice Dalveer Bhandari, a judge of the Supreme Court of India, was elected a fortnight ago by the United Nations General Assembly and Security Council, to serve as a Member of the International Court of Justice (ICJ). He defeated the Filipino nominee, Justice Florentino Feliciano, by a handsome margin and now has a six-year first term at the World Court. Justice Bhandari is undoubtedly a fine judge with considerable expertise in international law. His legal acumen, keen intellect and a sense of justice, especially for the poor and homeless that shines through in his domestic judgments, are qualities that make him an ideal representative of India, itself a beacon of democracy and human rights in the developing world. That India has made a good choice is not in doubt; whether it could have made a better choice, as some have suggested, is contestable though ultimately a moot point. The key issue that arises in this context relates to the fact that Justice Bhandari's nomination by the Government of India and eventual election to the ICJ took place while he continued to serve as a judge of the Supreme Court of India. This raises grave and disturbing issues regarding the independence of the judiciary in India and points to the lowered standards of propriety in the highest echelons of governance.

Judiciary & government

The independence of the judiciary is a significant legal principle in India, ever since it was held to be part of the basic structure of the Constitution. Since then it has been used on several occasions by the Supreme Court most notably to judicially lay down norms regarding the appointment of judges, transfer of judges between High Courts and administratively with regard to claiming exemption for the office of the Chief Justice of India from the purview of the Right to Information Act and formulating an internal code of conduct for appropriate judicial behaviour. The extensive (and sometimes unwarranted) usage of judicial independence as a legal principle has however blighted its primary status as a normative principle of good governance which promotes impartiality, a key facet of fair adjudication. The judiciary must not only be independent of the co-ordinate wings of government as well as the parties before the case, but must also be seen to be so. The slightest doubt in the public mind of excessive proximity between the judiciary and the government, which is the largest litigant before it, may lead to significant apprehensions of a lack of impartiality thereby questioning the legitimacy of the entire adjudicatory setup. As the Supreme Court of India itself likes repeating in its judgments, “Judges, like Caesar's wife, must be above suspicion.”

It is this test of judicial independence as a normative principle that Justice Bhandari's actions fail to satisfy. From available records, Justice Bhandari's candidacy was accepted by the Ministry of External Affairs after a recommendation to this effect in January 2012 by the Indian Chapter of the Permanent Council of Arbitration, whose advice in this matter, the government has traditionally honoured. From that time, up to the election at the United Nations in April, Justice Bhandari continued as a serving Supreme Court judge, hearing cases (from the Supreme Court causelist record, he heard cases till the 9th of April) and being party to delivered judgments (the last recorded judgment thus far being delivered on the 27th of April, authored by Justice Dipak Misra, his brother Judge on the Bench).

Though his resignation is not a matter of public record yet (the website of the Supreme Court continues to show him as a serving judge at the time of writing of this piece), it is believed that it became effective only on his election to the ICJ. During the same time, as the Ministry of External Affairs' response to a RTI petition on 8th February 2012 shows, the government was actively lobbying for his candidature in the United Nations, speaking on his behalf to various member states. Even if it is assumed that Justice Bhandari had little or no contact with the government in this process, the very fact that the government, a regular litigant in Justice Bhandari's courtroom was actively espousing his cause outside it, is gravely problematic in terms of judicial independence conceptualised as a principle of good governance leading to impartiality.

Unheeded lessons from the past

It is not however the case that Justice Bhandari's failure to resign as a judge of the Supreme Court prior to the government making him its official nominee for election to the ICJ is an isolated incident of judicial independence being imperilled at the altar of individual ambition. Justice Subba Rao's acceptance of his candidature for President of India by the opposition parties when he was Chief Justice of India is the most egregious example of the independence of the judiciary being threatened by a single individual. Equally pertinently in the present context, the election of the last Indian to serve on the ICJ, the then Chief Justice of India, R.S. Pathak (who incidentally relinquished office as Chief Justice only subsequent to his election to the ICJ), was marred by strong claims that Justice Pathak's appointment was part of a quid pro quo involving Union Carbide Corporation, the Government of India and the Supreme Court with the Pathak Court endorsing a deeply flawed settlement in the aftermath of the Bhopal gas tragedy. It is disappointing that Justice Bhandari as an upright individual and a learned judge failed to pay adequate heed to these lessons of history and relinquish his judicial office before accepting a nomination by the Government of India.

What is equally disappointing is the lack of public outcry regarding this issue. When Justice Subba Rao accepted the candidature for President made to him by the opposition parties while still in office, a man no less than Motilal Setalvad, India's first Attorney General, issued a statement to the press strongly condemning the Chief Justice's decision, saying that “he has set at naught traditions which have governed the judiciary in our country for over a century.” Justice Pathak's nomination to the ICJ was the subject of several scathing indictments, including by former Supreme Court judge, Justice Krishna Iyer who wrote of “the beholdenness of the candidate [Pathak] to the litigant government for getting the great office for him.” As far as Justice Bhandari's nomination is concerned, except a public interest petition challenging it as a violation of judicial independence, there has been a seemingly all-pervading public silence. Even the petition itself, though well-intentioned, was misguided, seeking redress from the Supreme Court in a matter which was characterised by impropriety rather than illegality of a type a judicial order could rectify. Justifiably, the Court refused to entertain it.

Importance of propriety

In an age of multi-billion rupee scandals, endemic corruption and food shortages caused by governmental apathy and inaction, the impropriety of a judge failing to resign at an appropriate time may intuitively seem trivial. But as with most questions of impropriety, though its effects may not be immediately apparent, they are the portents of an insidious decline in the standards and values that define institutions.

For the Supreme Court of India, judicial independence has been the cornerstone of its functioning from the time of its inception. Despite a few challenging periods, the Court, the Bar and the conscientious members of the political classes have always striven to fiercely guard the independence of the judiciary from any potential threats. The Bhandari episode is however a bellwether of a possibly developing relationship of cosiness between government and the judiciary, accompanied by a general public indifference, bordering on acquiescence, of such a relationship.

The government's decision to nominate a sitting judge before whom it continued to appear as a litigant, Justice Bhandari's decision to not resign when the government was lobbying for him, and most crucially public acceptance of such an unholy nexus are warning signs that ought to be heeded. While the return of an Indian to the World Court after an absence of two decades rightfully gives cause for celebration, it provides an equally significant opportunity for introspection, that the cherished principle of judicial independence, responsible in the first place for the high esteem in which the Indian judiciary and its judges are held on the world stage, does not itself fall into desuetude in the process.

(Arghya Sengupta is a Stipendiary Lecturer in Administrative Law at the University of Oxford and the founder of the think-tank, The Pre-Legislative Briefing Service.)

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I am just thinking out aloud. What were other alternatives in this case: 1. Justice Bhandari could have resigned in Feb'12 and hoped that he won the election to ICJ. May be he thought this is too risky! 2. If the risk was real, he could have proceeded on leave to ensure that there's no conflict of interest. Mind you, this is a unique case and you don't want to lose a good judge in case political lobbying doesn't work at international forum. 3. Till such time this lobbying was in progress, he could have recused him from all the cases where the government was a party. All this sounds good now that we know that he has won the election. Had he not won the election, then exercising this option would not have worked in his favour. But that's the risk that you take with such moves. You cannot eat your cake and have it too, His Lordship!!!

from:  Mohit Handa
Posted on: Jun 6, 2012 at 19:58 IST

Thought provoking analysis by Mr Sengupta. I certainly agree that the former Hon'ble Judge of Supreme Court will clarify his position by making a statement.

from:  Maj Pankaj Rai
Posted on: May 15, 2012 at 17:00 IST

A brave writting. when person bening aggrived from every corner knock the door of the judiciary as it's last resort to get justice. today govt. is the largest litigant either as plaintiff of defendant. in such a situation it is not proper for a litigant person to recomend the name of a person who is going to decide his cause. this may(may not be)lead to challange the verasity of the judgment because the word proved as decined in the evidence act 1872 requires the judgement alos to be supported by any person. and such a situation that any person will look suspecious to the judgment

from:  advocate umakanta behera
Posted on: May 15, 2012 at 16:06 IST

The article perfectly describes a situation of 'poignant celebrations'. Thanks to the Hindu and Prof. Sengupta for enlightening us with this write-up.

from:  Chetan
Posted on: May 15, 2012 at 15:18 IST

The article perfecrtly describes a situation of poignant celebrations. Thanks to the Hindu and Prof.Sengupta for enlightening us with this write-up.

from:  Chetan
Posted on: May 15, 2012 at 14:43 IST

Excellent article. Author needs to praised for bringing this "scary" issue into the public attention. My be the judgments rendered by Hon'ble Justice Bhandari would either give more support the author's claim or negate it.

from:  Sudheer
Posted on: May 15, 2012 at 13:25 IST

Arghya, The candidates for ICJ elections are nominated by the National Group of the Permanent Court of Arbitration. These National Groups are independent of national governments. India's national group comprises of retired justices Sabharwal, Kania and advocate B. Sen. This national group nominated J. Bhandari, not the government (in fact, the government nominated P. S. Rao). The very reason why national groups make nominations, and not governments, is to depoliticize the election process to an extent.
Consider the statement: "It is disappointing that Justice Bhandari as an upright individual and a learned judge failed to pay adequate heed to these lessons of history and relinquish his judicial office before accepting a nomination by the Government of India. "
I think this is quite an unreasonable demand. Justice Bhandari was NOT nominated by the Government of India. He was nominated AGAINST the GoI's candidate (P. S. Rao, as per news reports).

from:  Shashank P. Kumar
Posted on: May 15, 2012 at 12:25 IST

The veiled improprieties in the higher tiers of legal fora come to fore belatedly. That R.S.Pathak was rewarded through his elevation to ICJ for his verdict that favoured the Union Carbide,unfolds the strong grip the MNCs holds over Indian political system.The nuance between the deservedness and public morality,when is not deciphored in the legal ladder of high sapience, the credibility of the revered black brothern is strongly doubted.

from:  C.Chandrasekaran
Posted on: May 15, 2012 at 07:39 IST

The learned writer has taken a super technical view on this matter. The judges in India,
except a small minority, has maintained very high standards and the criticism against the
Appointment is really uncalled for. It is true, the government will be a party in many cases
In the apex court, but immediately on nomination the nominated judge will give a verdict in
Favour of the govt is farfetched. In the case of such top posts at the international level, the
Nominated candidate should resign before the contest, also does not appear to be
necessary. Kiran bedi was elevated to a top UN post, when she was in office. She had the
Courage to confiscate indira gandhi's car, but that was considered a point in her favour by
Rajiv Gandhi and Kiran bedi was selected. We should not doubt everybody under the sun,
In such matters. Bhandari's name would have been cleared by the judiciary at the first
stage and later by various agencies. We should be proud of his elevation. CP Chandra Das.

from:  C.p.Chandra Das
Posted on: May 14, 2012 at 23:34 IST

Author most of the time tailoring his views by making such comment like
“lack of people outcry” or sometime questioning on “judicial rights”. As
we know that our judicial system stand alone since its inception, so we
could not keep its value on jeopardy by putting blame on any one’s
decision for stepping down.Mr. Bhandari success in an international
forum is what we must cherish. Though the venality is endemic in our
country so time and again we need vigilant person like Mr. Bhandari, but
the same time we can’t put faith on one to make our country grow .So we
must beef up our stand to make a strong judicial system rather than
living on the fate on any individual. I don't even say we must act as
silent worker, but let’s raise our voice against the government
intervention time and again on any of the judicial crucial decision.

from:  Prasannajeet Mohanty
Posted on: May 14, 2012 at 20:32 IST

The commentator agrees with the finer points pointed out by the learned author.Once the Hon'ble Judge came to know of his being nominated for ICJ he should have put in his papers.By doing so he would have set a noble example, in projecting the judicial independence. Exactly such a step was taken by the doyen of Indian judiciary Hon'ble Mr.Justice Krishna Iyer [as he then was], when he was nominated for contesting the election of for the post of President of India.It is right said that “Judges, like Caesar's wife, must be above suspicion.”
A little caution on his part could have elevated his stature in the eyes of laity of our great nation, the uncalled for, criticism could have been avoided.
It is a fact that 100 good acts of any body are forgotten but one act of indiscretion is recorded in pubic mind for all the times to come.

from:  P.S.SAWHNEY
Posted on: May 14, 2012 at 18:33 IST

The author tries to make a case of "Conflict of Interest"on the principle that Had the Hon.Justice been involved in any litigation
in which the G.o.I or Institutions controlled by it were involved directly he would have excused himself from the Bench hearing such issues.

This point has not been raised out and the author himself praise the Justice for his exceptional qualities.

YES,it is a matter of Great Concern in the present situation where
many Govt.functionaries are getting involved in various kinds of
allegations and cases for the Nation that the Judicial Officers of
the Country are a notch ABOVE caesar's Wife.Hon Justice will,as is
natural,relinquish his position as a Judge in the Apex Court when he gets the formal notification.Let us give him the benefit of ÄNY"
doubt and a highly meritorious service in Hague

from:  Ajith Kumar
Posted on: May 14, 2012 at 18:20 IST

Very Good Article by Arghya Sengupta. To be frank I do not know how and which department in government lobbied for his candidature, but may be we may have to look into the option that the whole process of nomination to ICJ takes place under the aegis of CJI of Supreme Court to aviod any suspicion in the future. The idea that judges of the supreme court will have to relinquish their judicial office before accepting a nomination of ICJ by the Government of India is too exemplary in my opinion.

from:  Sudhakar Matta
Posted on: May 14, 2012 at 17:53 IST

Will you please explain what law has been violated in this instance?

from:  Rahul Yaduka
Posted on: May 14, 2012 at 16:16 IST

The author has hit the nail on its head. Justice Bhandari should have
refused judicial work until his name was cleared for ICJ. India needs a
some kind of a policy on post-retirement jobs for judges. There is no
doubt that Indian Judges [both HC and SC] are extremely powerful. Judges
may err in their judgments, but if confidence is lost in the Judiciary
then it will be disastrous for Indian Democracy.

from:  rishikesh
Posted on: May 14, 2012 at 15:39 IST

While the article is most apt and educative, I disagree with you in the portion where you ascribe indifference to the Indian public ("...accompanied by a general public indifference, bordering on acquiescence, of such a relationship...") to the sad precedent(s).I would rather look upon it as ignorance promoted partly due to a barrage of reporting that buries the actual news and important views to a few inches on the centre pages.
At a time when making the ends meet is a task by itself, the Indian citizen is being asked to don the mantle of an investigator and a crusader, which, to my mind, is an unfair ask. It is only informed citizens that form a bulwark for democracy; I guess the fourth estate, as the much trumpheted guardians of democracy, ought to do more than report glamour and glitz to help protect our institutions.

from:  Vamsi
Posted on: May 14, 2012 at 15:32 IST

Excellent article! Honestly speaking, as a commoner, I would have never thought this issue is very important but as it turns out I was wrong. Hope this article sparks a debate about propriety in the judiciary.

from:  Jay
Posted on: May 14, 2012 at 15:23 IST

Justice Bhandari should have resigned on his own, when his candidature for a member of International court of justice has been accepted by the ministry of external affairs.Though the growing nexus between legislature and judiciary should be a cause of concern, but to reach to conclusions just by one or two incidents would have graver implications in the long run especially when people have imposed so much faith in judiciary,and media is responsible for shaping up the thinking of people.Govt Lobbying its own people on international platform should not have been misunderstood as nominations and selections as a member of international organizations bring pride to India as well.

Posted on: May 14, 2012 at 14:55 IST

Indeed, the matter deserves more attention. One only need look towards the USA to see what complicity between the executive and judiciary can do. Given the long tenure of Supreme Court judges, successive governments have done their best to nominate as many judges from their political camp as possible in order to prolong controversial pieces of legislation enacted during their term. The judges are divided into camps fiercely divided into Republican and Democrat camps with the former enjoying a majority.
While judges like all other citizens are entitled to their private political opinion, the judges in the US are openly political in the way they discharge their duties, often refusing to even be fair-minded, e.g. Justice Antonin Scalia. While the US Supreme Court has been conceived in a different manner than ours, it is hard not to see that the overt complicity between it and the government undermines its credibility severely. Let that be a warning to us!

from:  Vivek
Posted on: May 14, 2012 at 13:21 IST

A very valid point has been made out convincingly by the author and it is pleasant to note there are people who still believe in the finest levels of propriety but the facts that have been mentioned are not available to the common public. Besides, the people are so tormented by the crude misappropriations at large scale that they have no time to ponder upon such finer nuances. I don't think any newspaper, other than Hindu has space to devote to such things.

from:  Gunjan Sinha
Posted on: May 14, 2012 at 12:40 IST

I strongly agree with the points highlighted by the writer of this article regarding the propriety of judicial independence. However, what lingers in my mind is something different from the aforesaid statement. Consider a case in which Justice Bhandari resigns from the post he held, soon after his nomination by the Government and afterwards he looses the election for the post of a member of ICJ too. Now this would have led him to a situation in which he would neither be a judge of Supreme Court of India nor a member of ICJ (which he currently holds since he won the election). What I mean to say is that, Justice Bhandari would have suffered had he lost the election for no known falut of his own (since the Govt. nominated him). In a way relinquishing his judicial office seemed inappropriate though steps should be taken to keep the judicial independence intact.

from:  Palash chandra Dhali
Posted on: May 14, 2012 at 12:01 IST

An enlightened article on judicial independance, nay,centre's dependance on the good humour of the the justices whose stroke of pen can ruffle administrative feathers.The quid pro quo in the legal circle through the gesture of the centre does not augur well. That the skewed elevation of R.S.Pathak for his judgement which saved crores of bucks, which otherwise would have reached the needy victims in Bhopal tragedy, obviously has made leeway for such impropriety in the second innings. An Indian Justice Dalveer Bhandari though deserving in the rest of the counts, is catapulted to the coveted international legal fora is not without a tag about which we cannot feel proud about.

from:  C.Chandrasekaran
Posted on: May 14, 2012 at 08:56 IST

Since the post on the International Court of Justice is prized so highly for its prestige it is incumbent on the ICJ itself to modify its selection procedure for Judges. Nominations put forward by National Governments must not be accepted. Rather the court should select a panel of judges on its own devising a criterion to ensure representation of all Nations.

from:  Dr Nripinder
Posted on: May 14, 2012 at 08:00 IST

If the Supreme Court says that judges should be considered above suspicion, then it has to do something in order make people believe that. Doing such irrational things as justice Bhandari has done, is certainly going to complicate the matters against them. It is a dogma that the judiciary system is completely unbiased and functions in its purest form but if matters like this will come on the surface then it is completely possible that people will start thinking that this system is also as corrupt as others. This has to be avoided because if people start losing faith in justice then it will create an ordeal. Judges should know what responsibilities they carry and what their actions can trigger.
Situations like this can be avoided if certain laws which confirms judicial tranparency are enforced. Judges should not be offended by these laws because it will solidify a pristine image for them and will also empower people's faith in the judiciary system

from:  Imran Alin
Posted on: May 14, 2012 at 04:06 IST

An excellent analysis with a forthright indictment of His Lordship. It would be interesting to know the views from the Government of India and Justice Bhandari on this issue.

from:  Vinay Singh
Posted on: May 14, 2012 at 03:50 IST

Very nice article. I began reading it with a mindset that this is one more rent seeking article but by the time I finished reading it I felt refreshed. A very crucial point has been made by the author and certainly we are to blame as much as justice Dalveer is to be blamed

from:  Anoop
Posted on: May 14, 2012 at 03:30 IST
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