Justice behind veils

Jeff Sutton would not give a fair shake to people with disabilities if they walked into his courtroom,8221; said a member of the US Senate ...

Jeff Sutton would not give a fair shake to people with disabilities if they walked into his courtroom,8221; said a member of the US Senate Judiciary Committee, Tom Harkin. A Democrat senator, Harkin made this uncharitable remark about a lawyer who was recently nominated by the Bush Administration as an appeals court judge. The system of appointing judges is so transparent in the US that every nomination of the president is subject to confirmation by the bi-partisan committee, which holds prolonged public hearings for that purpose. Such a situation is inconceivable in India where the public is delivered with a fait accompli after the president has signed the judge8217;s warrant of appointment. In the normal course, the only ones who would have prior knowledge of it are a handful of senior functionaries of the executive and judiciary involved in processing the appointment.

By contrast, American senators lay bare the whole record, professional or otherwise, of the nominee during the confirmation hearing. In Sutton8217;s case, Democrat senators objected to his nomination because as a lawyer he happened to argue in one Supreme Court case against giving any special protection to state employees with disabilities. His lapse, if it can be called so at all, is no big deal by Indian standards. But Sutton had to assure the committee that he would be fair as a judge and ask them not to hold his previous work as a lawyer against his nomination. 8216;8216;I am trying very hard to show you that I would be an objective judge and that the client I would have is8230; the rule of law, not a former client,8217;8217; Sutton said. Amid protests from over 150 disabled activists crowded into a room in the Capitol Hill, the Senate finally gave its approval on April 29 by a 52-41 vote.

Just a day later, Delhi was witness to something that can be traced to the absence of any such transparency in judicial appointments in India. The CBI raided the house of Shamit Mukherjee, who had resigned a few weeks earlier as a judge of the Delhi high court because of his alleged complicity in a scam related to the Delhi Development Authority. The CBI had found high court files of some lucrative DDA cases in a guest house. Taped telephone conversations apparently revealed that those files found their way to that unauthorised place with Mukherjee8217;s knowledge and consent. The CBI apprised the Chief Justice of India. V.N. Khare, who in turn confronted Mukherjee with the evidence. The buzz in the bar is that Mukherjee has long had links with the land mafia in Delhi 8212; a detail that could well have come out in the open and nixed his appointment if we had adopted a procedure anything like what the US has. When he subsequently put in his papers, Mukherjee graciously cited his wife8217;s illness as the reason for his sudden resignation. Our Lordships can8217;t seem to tolerate transparency even in their resignation letters.

The shame of Mukherjee8217;s case came close on the heels of the resignation of another judge, Arun Madan of the Rajasthan high court. Madan had to go because a peer-group committee indicted him for soliciting a female doctor in exchange for a judicial favour. Again, the resignation came after much delay and exposure in the media. That did not, however, deter Justice Khare from crowing over the media8217;s failure to substantiate their reports alleging involvement of Karnataka high court judges in the Mysore sex scandal.

Be that as it may, Madan8217;s fall is particularly instructive because of the circumstances in which he was first appointed to the Delhi high court in 1993. As a lawyer, Madan had suffered the mortification of being censured by the Supreme Court Bar Association for soliciting work and acting as a tout. The bar association passed a resolution against him and some other lawyers for bringing disrepute to the legal profession. This misconduct should have, under the rules of the statutory Bar Council of India, stripped him of his licence to practice. Instead, as can probably happen only in the Indian judiciary, the man found himself elevated to the bench. Madan had powerful connections 8212; powerful enough to have him sworn in on March 3, 1993, early in the morning at 8 am, well before any lawyers arrived in the high court. And when the lawyers came to know later in the morning about the hush-hush swearing-in, they immediately went on a strike to protest his appointment.

The judiciary8217;s dereliction didn8217;t end with that as the the Delhi high court bar association filed a writ petition before the Supreme Court challenging Madan8217;s appointment on the basis of his already publicised record of misconduct. In an unabashedly self- serving ruling made later in 1993, the apex court said that once the president signs a warrant of appointment, that case is not amenable to judicial review. Significantly, this ruling was made in the larger case through which the Indian judiciary, in the teeth of constitutional provisions, appropriated 8220;primacy8221; in the matter of judicial appointments. Shamit Mukherjee is only the latest fallout of that 1993 judgement, which legitimised secrecy in appointments.