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The Judge’s Dharma
by Rajinder Puri Bookmark and Share
 

General VK Singh has questioned the Supreme Court’s judgment on his petition seeking his correct date of birth. He reportedly said that the Court side-stepped the issue. It is surprising that the General took so long to react to a judgment that was palpably flawed. I did not comment on it because I thought it best to allow burial of the controversy as seemed to be the Court’s intention. Now that the aggrieved General has spoken the issue deserves to be addressed.

Chief Justice Kapadia should ponder on what really constitutes the Judge’s dharma. Years from now he and his honourable colleagues may have to look back with regret at their ruling. It helped stabilize and perpetuate a government that is spreading ruin in the nation for every single day it remains in office.

The Court’s error may be attributed to the eternal dilemma facing the judiciary: What in the final analysis is the Judge’s dharma?

Should judgments be delivered in the national interest or should judgments be delivered strictly by the letter and spirit of the law?

In balance I think that the Judges should stick to implementing the law and forget about the rest. If the law is strictly followed even an inconvenient judgment allows other institutions of the democratic system to play their part to rectify the situation.
Indeed, when the law is not strictly followed quite often the end result of a judgment even though motivated by the national interest ends up doing more harm than good.

Many years ago when I petitioned President Zail Singh for permission to prosecute former Prime Minister Rajiv Gandhi for abetting corruption in the Bofors deal, the President sought the opinion of retired Chief Justice of India Mr. Chandradhud. The Judge after studying my petition opined that a prima facie case did exist. However, in the interest of stability and national interest he advised the President against granting me permission. The President complied with the advice. Had the permission been granted, the Court would have admitted my petition. A Prime Minister facing a corruption case in court would have given Parliament the opportunity to address the issue. The end result of the scandal may not have been as harmful to the national interest as it became. After his retirement President Zail Singh confessed to me that he had erred by not accepting my petition. 

The Supreme Court desirous of defusing a dispute between the Army Chief and the Defence Ministry threw logic to the winds. The Court relied heavily on the General giving written assurance that he would abide by the Ministry’s decision. It questioned the General’s motives in raising the issue belatedly. It failed to take note of the General seeking correction of the two different dates of birth retained by the offices respectively of the Military Secretary and the Adjutant-General. It did not question or criticize the Defence Ministry for allowing this differing record in two branches of the government to remain uncorrected for years despite the General seeking correction since 1985. 

Most important of all, the Supreme Court finally said that it could not adjudicate on such an issue. Finally it ruled that it believed in the General’s honour. And its solution was that for the purpose of the Army the General was born in 1950 as recorded by the Military Secretary’s office, and for the rest he was born in 1951 as recorded by the Adjutant-General’s office. Can a judgment be sillier? The General’s petition did not seek the Court’s opinion about the moral issues raised by his dispute with the Defence Ministry. The petition sought a single point: Going by all the evidence available what was his correct date of birth? If the Court could not adjudicate on this question it should have dismissed the petition. Instead the judgment meandered into irrelevant observations and ended up by delivering its irrational ruling that the Army Chief should function with two dates of birth.

Chief Justice Kapadia should ponder on what really constitutes the Judge’s dharma. Years from now he and his honourable colleagues may have to look back with regret at their ruling. It helped stabilize and perpetuate a government that is spreading ruin in the nation for every single day it remains in office.
    

2-Mar-2012
More by :  Rajinder Puri
 
Views: 928
Article Comment Dear Sir,

This is a serious topic, and the article has initiated a thought process on:

" Should judgments be delivered in the national interest or should judgments be delivered strictly by the letter and spirit of the law? "

-----------------
Also, (adding to point mentioned by Krish) there are more instances of such erring SC - in case of police crack down on Baba Ramdev and his supporters on the issue of black money, the court asked Ramdev to be 'more responsible to ensure security of people supporting him'. How come ! when police was checking each and every person entering the premises, when the organisers maintained details of each person entering into their record and when the place is reasonably provided basic (such as temporary roof, water, etc.) - what else remains ??

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Anyways, there is upper portion of one pillar of democracy (Judiciary) remaining reletively strong, while other two pillars are already malfunctioning.

And the new fourth pillar - the media is already working to destroy all other three pillars, what can we expect more.
Dinesh Kumar Bohre
03/06/2012
Article Comment Sir, your last sentence is bang on target !
But this is not the only case where the Supreme Court has tried to be politically correct at the cost national interest. In the 2G judgement it said everything indirectly to the effect that the PM was guilty of negligence if not connivance but shied away from holding PM guilty; and went around in circles to hold the PMO responsible for PM's guilt.
Krish
03/03/2012
 
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