Standards of probity

Let us leave aside for a minute the politics that will undoubtedly cast a large shadow on the controversy surrounding the chief justice of Karnataka High Court PD Dinakaran. Now that some Dalit leaders have jumped in on his behalf, and the Congress, as a rule, does not do anything that could antagonise that community, one can be reasonably certain how politics on this issue will play out in the next few weeks, following the admission of an impeachment motion in the Rajya Sabha.

This is probably the second time that such a motion on a sitting judge has come up before Parliament. Like last time, in the case of Justice V Ramaswami of the Supreme Court, there is every possibility that the voting on the motion in the two Houses will have less to do with the merits of the case than with party politics. Bipartisan consensus on such issues is next to impossible in this country.

Let us also leave aside the allegations against Justice Dinakaran for a moment since, as some have argued, the chief justice has had no chance to defend himself. As he himself has insisted for long, he may not be guilty of what he is accused of.

But, in that case, why did the Union government, which is supposed to recommend names to the President for the appointment of judges of higher courts, think twice about his name? Why did the collegium of Supreme Court judges revise its opinion on the recommendation that he be elevated to the bench of the apex court? Quite simple: on the principle that Caesar’s wife must be above suspicion. Particularly so in this case because there were some due processes of fact-finding that were run through after the legal fraternity in Tamil Nadu made specific charges.

The issue, unfortunately, does not stop there. The elevation of Justice Dinakaran to the Supreme Court may have suffered irreversible damage. What lies beyond that are many questions that remain unanswered though some of those were raised by his own colleagues in the Karnataka High Court. These are not questions that can be easily brushed aside. The first and the most obvious is the question of credibility of the higher judiciary itself.

If, in the opinion of senior judges of the Supreme Court, Justice Dinakaran is not fit to be a member of the bench in the apex court, is he fit to be the chief justice of the High Court? That question will of course be answered by the committee to be appointed by the chairman of the Rajya Sabha to consider the question of his impeachment.

As he has frequently refrained from taking part in court proceedings either because the lawyers did not want to appear in his court or because the controversy had reached a sensitive point, should Justice Dinakaran continue to hold office at all? He may have a right to do so but when eminent lawyers across the country have concluded that he is not as above suspicion as he ought to be, should he simply step aside even if it means suffering some personal injury to his reputation but upholding the majesty of the system of justice in this country?

That would not only establish the credibility of the judiciary but, more importantly, set a benchmark against which every other judge of a higher court would be measured.
The issues that Justice DV Shylendra Kumar sought to raise and discuss with his colleagues in the Karnataka High Court found some resonance among a few of his colleagues, if not all, and speaks volumes of the concern within the judiciary for standards of probity. 

Also, it is not as if it is only some lawyers in Tamil Nadu who have raised questions about Justice Dinakaran. They may have been the first, but eminent lawyers whose personal reputation is so high that they would be pretty careful in what they do publicly, have fully lent support to the cause of probity.

In the previous case when a judge faced impeachment and was saved from it because of the partisan voting in Parliament, the judiciary found an answer to deal with the issue in its own way. The then chief justice of the Supreme Court kept the judge completely away from judicial work until his retirement. That may have been a case of practicing ostracism to separate the tainted, but it did not, in the long run, serve the purpose of weeding out those who were not above suspicion.

Judges across the country have been pretty sensitive to the ills of society and, in the last few years, have genuinely worked at protecting citizens from the tyranny of the system, often inviting the charge of excessive judicial activism. It now probably needs the same kind of activism to give itself a much needed shine, by first applying the test for Caesar’s wife, rather than let another organ of the state decide its conduct.