The treatment meted out to two new transferred Chief Justices of High Courts is a study in contrasts. On the one hand is Justice J. H. Khehar, who is taking over the Chief Justice of the Karnataka High Court on a transfer from Uttarakhand. And on the other is Justice P. D. Dhinakaran, on a transfer from Karnataka to Sikkim. The former was welcomed with warmth in a huge turnout at the court. The latter took oath amidst boycotts from the bar associations in Sikkim. The former is not mired in controversy, has no charges of alleged corruption against him; which is more than can be said about the latter.
So what is it that Karnataka has done right to deserve a squeaky clean Chief Justice that Sikkim has not? True, the charges against Justice Dhinakaran haven’t been proved, but they haven’t been disproved either. Was the government not thinking about the signal such an appointment would send to the people in Sikkim? We don’t care about the state enough to ensure a Chief Justice with a clean record, but of course when China stakes a claim on the land, we will scream and roar and protect the land that is ours. Seems like we’ve just celebrated another unholy marriage of law and politics.
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I have a few questions:
1. Why Justice Dhinakaran came under scanner only when he was sought to be elevated to the SC?
2. Why the ‘Senior’ members of the Bar silent on this issue for all these years? Is moral rectitude required only for SC judges and is a dispensable requirement for HC judges?
3. Why Justice Dhinakaran not given a reasonable opportunity to defend himself?
4. With no chance of getting elevated to the SC, what is wrong in Justice Dhinakaran’s approach? After all, he has simply refused to resign before a final verdict on his guilt is pronounced.
5. I agree that the collegium has reacted to Justice Dinakaran’s refusal to resign. Perhaps the debate should focus on why the collegium nominated him in the first place only to give way to the demands of the ‘Senior’ members of the Bar? Why Justice Dhinakaran’s alleged misdeeds tolerated for so many years when he was in the High Court?
Shivendra- The point of my piece was not to make a case against Justice Dhinakaran but instead to point out what I believe is an irresponsible handling of the situation. Having said that, the allegations of corruption did indeed come about after the nomination for elevation making it suspicious. But perhaps it is so because this was when he came under public scrutiny and the media took a strong stand against him by virtue of their findings of corruption, allegedly (and I stress upon this). I agree with you entirely that audi alteram partem must indeed be complied with. But this takes us to another controversial area; that of judicial appointment by the collegium. Justice Dhinakaran was indeed called forth by the collegium to make his case before them,a right he has under s.3(4) of the Judicial (Inquiry) Act, of 1968. But the fact that the proceedings take place in secrecy means that the public is unaware of the same.
Surely, you would recognize that my point about a litigious or crime prone Sikkim was satirical! The first point however stands. Only an act of Parliament may be able to fix the weakness of the powers that be which is far from easy to accomplish presently. So, short of that, looking at it from the collegium, if you accept that status quo was unacceptable, what else could have been done?
As was mine! We’re both saying that a change is needed. My grouse is that the act was continued without seeking to change the system, you argue that there was little else to do. Fair enough; just that I refuse to accept such compromises in the name of lack of alternative.
You need to look at this from the standpoint of the collegium’s weakness and overall cost/benefit of the transfer. The collegium cannot dismiss a judge and its only weapon is to decree a transfer. From a utilitarian perspective, they are trying to minimize damage to the smallest number. What better way to do that than to shift a judge to a court which has the least number of cases before it? That is the rationale for Dinakaran’s transfer to Sikkim. It is entirely unsurprising that Sikkimese are, quite understandably, offended but protests are unlikely to change this hard fact. The better way would be for Sikkimese to find ways to get into court more often – fight more battles amongst themselves, commit more crimes (heard that murder is almost unknown in that state; now that would have to change), sue everything that moves, etc. If Sikkim manages to get in the news more often with shocking and horrific acts and the judiciary there too gets in line with other states by returning to its normal, overloaded state, the collegium might – just might – start to see things differently.
Vittal: True, the collegium has constraints. But if we are going to talk of what next, wouldn’t it make more sense to seek to change the powers of the collegium? I’d say making the Sikkimese more litigious or crime prone is an anarchic alternative with more harm than good. Allowing something as blatantly wrong such as this appointment, is to make a mockery of the judicial system, no less.