A statement by the Attorney-General before the Supreme Court raises a question mark over judicial appointments. It spells an implicit challenge to the integrity of the judiciary as a whole.
On November 22, an extraordinary oral statement on behalf of the Union Government was made before the Supreme Court of India. During the course of hearings on a writ petition questioning the appointment of the Central Vigilance Commissioner, the court had raised certain questions about whether the person chosen would be able to function effectively, given that a charge sheet was pending against him. Attorney-General G.E. Vahanvati was then reported to have told the Bench of Chief Justice S.H. Kapadia, Justice K.S. Radhakrishnan and Justice Swatanter Kumar: “If the criterion [of impeccable integrity] has to be included, then every judicial appointment can be subject to scrutiny. Every judicial appointment will be challenged.”
Deserves to be defended
This writer, who happened to be a Judge of the Supreme Court some 30 years ago, has been morally molested by the suspicion cast on the Indian judiciary as a whole by that statement. The Indian judiciary, one of the best such institutions among global democracies, deserves to be defended rather than besmirched. However, since there has been silence in the few days since the statement was made, I am provoked to register my protest against the insinuation that was implicit in the submission of the Attorney General made to the Supreme Court. Insinuation is imputation concealed by cowardice. Are all judges innocent of integrity? Alas!
Can it indeed be true that the present Attorney-General, a successor in office to the great M.C. Setalvad and others of his ilk, did submit to the Chief Justice of the highest court of judicial justice of the nation, that if the integrity of every judge of the higher court were to be assured, it would turn out to be a very embarrassing adventure? What about the integrity of the Attorney-General himself?
Therefore, the court should put the Executive under obligation to answer the question why the integrity of the person who was chosen as Chief Vigilance Commissioner was not thoroughly investigated before the appointment was made. The hint given to the court and the hunch left to the nation through that statement is that the integrity of even Supreme Court judges is problematic, and that no investigation was made when members of the noblest robed brethren were chosen and appointed, nor could it be scrutinised. This submission, if it is true, puts under a shadow a sublime institution that is empowered to pronounce with high authority its judgment if ever the executive and legislative instrumentalities violate the Constitution, and the fundamental rights are under threat. In short, the Attorney-General's observation amounts to casting doubts over the integrity of the highest institution to which We, the People of India, can go seeking justice and human rights.
‘It is blasphemy'
Are judges, then, a suspect instrumentality with their very credibility under challenge? Expressed as a submission, it is blasphemy uttered against the most glorious and finest of the trinity of instrumentalities under the Constitution. The most sublime instruments of the Indian judiciary, every member thereof, are no exception. Suspicion about their probity and impartiality has been expressed openly. When their integrity, credibility and impartiality are raised as issues by the Executive, through its Attorney-General who has dared to submit it, no assumption in their favour can be made. Yes, we cannot assume their integrity and secularism: both must be investigated.
This is scandalous — a shock and a shame. I protest, and expect the Supreme Court to get the Attorney-General to explain whether the President, on the advice of the Cabinet, appoints judges without making any assessment of their integrity, character, social philosophy, antecedents or democratic commitment. All these values hang on the iron string of integrity.
Let the nation awake to this implicit slander. The Attorney-General may have his alibi or a valid defence in this matter. Fiat Justicia is an idle phrase, and as in Pakistan and once in Sri Lanka the top executive is then on top of the Supreme Court itself. This submission of suspicion is the upas tree under whose shade reason fails and justice dies — here it concerns the court itself. The Indian Bar must protest against this.
Let there be a commission
Let there be an Appointments and Performance Commission so that any suspicion over the integrity of a member of the judiciary is dispelled before that person sits on the Bench, an incredibly public sanctuary of dignity and divinity. Indeed, the high judicial bench is Bharat's non-negotiable institution of integrity. Parliament must immediately discuss this dangerous attitude of the Attorney General. A grave National Judicial Commission should be made a part of the constitutional judicial code.
Does that statesman, Dr. Manmohan Singh, support vicariously this dubious statement by the Attorney-General? Why does the Bar Council of India remain silent when a covert aspersion on the institution of the judiciary comes up in the open court? This is either a grave crisis or a casual, though accidental, aberration. Silence is guilt when fearless speech is basic courage. Or else confidence in the Supreme Court will become a casualty.
It is my conviction that judges of the higher judiciary should be like Caesar's wife — they have to be above suspicion. Or else, justice, social and economic, will remain a paper promise and the robe will become a mere cover-up of concealed sins. Speak up, Indians. Taciturnity is trauma and a taint.
Sans the Supreme Court, beyond doubt India will face functional chaos under the shadow of criminality. Satyameva Jayate will have to surrender to corrupt power syndrome. Do we want a new forensic avatar? This puts all other scams to shame.
Maybe I have somewhat exaggerated the implications of an innocuous submission by the Attorney-General, but mainly I stressed the truth of my soul. Judges ought to beware.
Yet, now it would seem that the members of the robed brethren have themselves started suspecting one another. A Bench comprising Justice Markandeya Katju and Gyan Sudha Misra of the Supreme Court on November 26 made remarks that amounted to questioning the integrity of at least some of the Judges of the Allahabad High Court.
It said: “We do not mean to say that all lawyers who have close relations as judges of the High Court are misusing that relationship. Some are scrupulously taking care that no one should lift a finger on this account. However, others are shamelessly taking advantage of this relationship. There are other serious complaints also against some judges of the High Court. The High Court really needs some house-cleaning and we request the Honourable Chief Justice of the High Court to do the needful, even if he has to take some strong measures, including recommending transfers of the incorrigibles.”
How corruption seems to have corroded one of the finest institutions of India!