Tuesday, March 6, 2012

Army Chief & SC Judgement

The Judge’s dharma

Chief Justice Mr SH Kapadia should ponder on what really constitutes thejudge’s dharma. Years from now, he and his honourable colleagues may haveto look back with regret at their ruling on General VK Singh’s age, writes

Rajinder Puri
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.

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 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 YV Chandrachud. 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 criticise 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 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 Mr 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 stabilise and perpetuate a government that is spreading ruin in the nation every single day it remains in office. 

The writer is a veteran journalist and cartoonist

Sent by : Vivek Bopiah

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