Forward-looking judges need to be elevated, writes Olav Albuquerque

12:25 AM Feb 27, 2021 |

It is not the lower courts but the 26 constitutional courts which make news because they lay down the law but Judge Dharmendra Rana of the Delhi sessions court overturned this rule when he pronounced that the call for any kind of violence was conspicuously absent which was why he was granting bail to activist Disha Ravi, ending her 10-day stay in jail.

Perhaps, he unwittingly trod on the toes of the constitutional courts but Judge Rana openly said what academics have been saying all along. Sedition has no place in a democracy--more so when there is no incitement to violence.


Rana would make a very good high court judge but it remains to be seen if the Delhi high court collegium will eventually recommend his elevation because his terse observations may not please the Union Government. “In my considered opinion, citizens are conscience-keepers of government in any democratic nation. They cannot be put behind bars simply because they choose to disagree with state policies. The offence of sedition cannot be invoked to minister to the wounded vanity of governments,” he wrote.


Core of the Vedas

The judge said India’s 5,000-year-old civilisation was never averse to ideas from varied quarters. In fact, the judge has explained the core of the Vedas, which form the substratum of Hinduism, as opposed to Hindutva which is religion mixed with politics. “In my considered opinion, freedom of speech and expression includes the right to seek a global audience. There are no geographical barriers on communication,” said Rana, quoting from the Rig Veda: "‘Let noble thoughts come to me from all directions.’ The right to dissent has been conflated into a charge of sedition because Disha Ravi may be inconvenient to those who rule us.”

Disha Ravi’s activism may hinder policy execution but this does not necessarily imply she wants to dismember India because Judge Rana observed there was insufficient material in the toolkit to link it to the violence in Delhi on Republic Day. Like the Unlawful Activities Prevention Act, sedition is being misused to silence critics.

Be that as it may, it is judges like Dharmendra Rana, who show their mettle when they uphold the rights of citizens against the state, impervious to their careers. This is why two senior Bombay high court judges, A M Khanwilkar and D Y Chandrachud, who are in the Supreme Court, voiced doubts about the integrity of some lawyers whose names were sent to the Supreme Court collegium for elevation as high court judges.

Chief Justice Bhushan P Dharmadhikari, who was the acting chief justice of the Bombay high court from February 20 till March 19, 2020, and chief justice from March 20 till he retired on April 27, has received flak because both the judges said it was “impossible” for a chief justice to observe the performance of 18 lawyers for appointment as high court judges within such a short time.

'Reasonable knowledge'

Chief justices are normally from outside their parent high court, which is why Justice Dipankar Datta has been transferred from the Calcutta high court. But shortlisting a lawyer for elevation as a high court judge requires the chief justice to compare the lawyer’s performance in his court with what senior judges and senior lawyers say about him.

Earlier, CJI Sharad Bobde had ignored the veto of Justices Khanwilkar and Chandrachud to the confirmation of Justice Pushpa Ganediwala as a permanent judge. Her absurd verdicts on POCSO vindicated Khanwilkar and Chandrachud. Now, he will not be able to ignore the very serious objection of lack of integrity against some of these 22 putative high court judges.

‘Lack of integrity’ is a euphemism for corruption. This means if these names are not shot down, these corrupt lawyers will become corrupt judges -- Justice Markandey Katju openly wrote how a corrupt judge of the Madras high court was confirmed by the then Prime Minister Manmohan Singh due to political pressure from a Chennai-based political party.

Apart from lack of integrity, the two judges pointed out that many on the list of 22 wannabe judges were 55 years old, which would give them a tenure of seven years. Khanwilkar and Chandrachud pointed out most high court judges take three years to learn how to write judgments while adapting to the rigid discipline of staying aloof from their environment.

Justice Bhushan Gavai, who will take over as the Chief Justice of India, chose to agree with certain names proposed as judges but concurred that others should be returned for reconsideration. He said Justice Dharmadhikari had “reasonable knowledge” of the Bombay high court where he had been a judge since 2004.

Both Bhushan Dharmadhikari and Satyaranjan Dharmadhikari are cousins and were later elevated as judges of the Bombay high court, which is unusual. Justice Satyaranjan Dharmadhikari chose to resign, rather than meekly accept his transfer to another high court as chief justice. His cousin, Bhushan Dharmadhikari had less than a year to retire, which was why he was confirmed as a chief justice in his parent high court.

Collegium system

Justice Jasti Chelameswar had divulged that deciding who was to be elevated as a chief justice or brought to the Supreme Court was a bureaucratic exercise. “You point out the judge and I will quote the rule to oppose or support his candidature.” He pointed out how the then Union law minister told him at a customary farewell dinner held when a CJI demits office why a certain judgment needed to be revisited. “I told him this was not the time and place to discuss these things,” pointed out Chelameswar, who is known to be outspoken.

Be that as it may, the returning of these 22 names for reconsideration of the new chief justice, Dipankar Datta, coupled with the fact that the seniormost judge, Abhay Oka, has not yet been elevated to the Supreme Court, implies the collegium system of judges appointing themselves has always been flawed.

The Union Government has opposed the elevation of Justice Akil Kureshi as chief justice of the Madhya Pradesh high court in the past. He is third on the all-India seniority list for elevation to the Supreme Court. But the deadlock within the collegium over his elevation has not been resolved.

This is why judges looking forward to their careers in the Supreme Court may occasionally get preference to forward-looking judges like Abhay Oka and Akil Kureshi. Or perhaps Dharmendra Rana.

The writer holds a PhD in law and is a senior journalist-cum-lawyer of the Bombay high court.

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