Hear him out

This is not to defend the Karnataka High Court Chief Justice,to decry the mobilisation against him,nor to oppose his impeachment. It is to ask a question of procedure. For here’s what we know about Justice Dinakaran: (1) A district collector’s official report has found against him,(2) the law ministry has opposed his elevation,(3) 75 Rajya Sabha members have signed onto his impeachment notice,(4) the Supreme Court collegium has decided to keep his elevation “in abeyance”.

In short,we know that a full four separate institutions have already judged him in some way. Yet,where is the space for the judge to defend himself,to present his own counter-arguments? The humblest of petitioners to appear before Justice Dinakaran probably enjoyed more legal due process. Is this fair entry to (or exit from) the world’s most powerful court?

Reports suggest that after the hue and cry over his proposed elevation,the “collegium” of the 5 senior-most Supreme Court judges invited Justice Dinakaran to reply to the allegations against him. But it’s hard to know for sure,as this was a secret hearing; records are not available to the public or to the parliamentarians who have signed on to the impeachment notice. According to Section 3(4) of the Judges (Inquiry) Act,1968,Justice Dinakaran will get a “reasonable opportunity of presenting a written statement of defence” before an Inquiry Committee during the impeachment proceedings. But this too will be secret and is unlikely to assuage the court of public opinion.

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Justice Dinakaran’s best chance to defend himself is before Parliament,at the fag end of the impeachment process,just before the vote. This has proved a powerful mechanism. During the parliamentary debate over the impeachment of Supreme Court Justice V. Ramaswami in 1993,his lawyer Kapil Sibal made a blistering presentation in his defence. The vote that followed lacked the numbers to impeach the judge. But if and when Justice Dinakaran gets a similar chance,he would have already been judged many times over. He will have been tainted in the public eye for far too long to recover.

Contrast this with the United States of America. When judges are nominated by the president,they are publicly interrogated by the Senate; the often acerbic proceedings make great prime-time television viewing. Some of this is cruel,and in India will be considered in bad taste. During the senate confirmation hearings of Justice Clarence Thomas,he was questioned on his taste for pornographic films. More damaging,his former employee testified that he had sexually harassed her. But,and this is key,Justice Clarence Thomas was given the opportunity to publicly counter these allegations. And did he do so! In a now famous speech to the Senate Judiciary Committee,watched by millions on television,he said: “This is a circus. It’s a national disgrace. And from my standpoint,as a black American,it is a high-tech lynching for uppity blacks who in any way deign to think for themselves.” In the vote that followed,Justice Thomas’s appointment was narrowly confirmed. There is little evidence to suggest that the allegations against him have impaired his ability to judge effectively. Along with the pain of accusation,came the power of self-exoneration.

Indian Supreme Court nominees are given no such forum to publicly refute allegations against them. There is no executive or legislative confirmation of their appointment. India’s Supreme Court self-selects,and the collegium’s decision is shrouded in secrecy. Judges are also not encouraged to give press conferences (notwithstanding the couple of terse ones Justice Dinakaran has given in his defence). But the flip side to this opacity is that when allegations do surface,there is very little their lordships can do to publicly clear their name.

This unfairness has little to do with the particulars of Justice Dinakaran’s case. Rather,it is the byproduct of our judicial selection process. Precisely because judges don’t open up to questioning,they deny themselves the power to brush off the mud slung at them. When you refuse to enact clear-cut procedures to try judges,you have no armour from the rumours,innuendos and allegations in the court of public opinion. When you are not answerable to anyone,you find yourself unable to answer back.

vinay.sitapati@expressindia.com