A scathing, vituperous, scurrilous and personal attack has been made against Hon’ble CJI Justice JS Khehar in an article titled “Why JS Khehar was arguably one of the worst Chief Justices of India” authored by Dr. Rajeev Dhavan, Senior Advocate.
A judge is a sitting duck and not in a position to respond. In such circumstances, it becomes duty of the Bar to set out objective facts for the appreciation of the discerning and mature readers.
I am responding to the article by Dr. Dhavan in my personal capacity.
About the Author
The author of the article, Dr. Rajeev Dhavan, is a highly acclaimed jurist and master of Constitutional law and Constitutional issues. I have known him since early 90s and have worked closely with him in the matters pertaining to inter- state river disputes. Unquestionably, a senior with great analytical capacity and excellent communication skills, both written and spoken. Needless to say, I have learnt a lot from him and have the highest respect for him.
However, the timing of this article at the fag-end of the tenure of Justice Khehar raises serious questions with regard to its objectivity.
A perusal of the judgment of Hon’ble Justice K.S.P. Radhakrishnan and Justice J.S. Khehar in the matter of Subrata Roy Sahara vs. Union of India & Ors. (2014) 8 SCC 470 shows the cause of strained relations. The Hon’ble Supreme Court strongly criticized the demand for recusal of a judge on baseless and unfounded insinuations. It also criticized calculated psychological offences and mind games adopted by the counsel to seek recusal of judges. It also held that acts of bench hunting, bench hopping and bench avoiding cannot be allowed. The oath of office of judge makes it imperative for a case to be decided without fear or favour. The court made strong observations against Dr. Rajeev Dhavan for the manner in which the court had been addressed and for alleging bias against the Bench without any objective material. It seems strained relations are continuing till date.
Working with Colleague Judges
In my interaction with Chief justice and other judges on administrative matters concerning the Bar, I have noticed that the Chief Justice does not take any decision in isolation but always insists on involving other concerned judges. This has been necessitated because of his realization that his tenure is limited and the initiatives by him are likely to spill over his tenure and must be taken to logical end for completion.
Relation with Bar
His relation with the Bar has been excellent. He has been giving time to the Bar on short notice and has religiously and diligently applied himself to resolving the issues concerning the Bar. The extreme pressure of changes to the court rooms, civil works completion, new platform for digitization leading to paperless Supreme Court and availability of entire record of a case on click of a button, leading to frayed tempers on both sides. The acute listing issues had inconvenienced members of the Bar in the beginning but the issues are being sorted out by timely intervention of Justice Khehar.
I would like to appreciate tremendous work done by the SCBA Executive Committee in trying to resolve the problems. In particular, I would like to compliment ceaseless efforts of Secretary Gaurav Bhatia, Treasurer Meenesh Kumar Dubey, Joint Secretary Rahul Kaushik, Joint Treasurer Aniruddha P. Mayee and Executive Members Umesh Babu Chaurasia, Divya Roy, Savita Devi, Purnima Jauhari, Kumudlata Das and Harpreet Singh Sandhu.
I must also say that CJI was personally supervising the construction of the courts etc. till late hours during vacations.
On the whole, the Bar has enjoyed very good relations with the Bench currently headed by CJI Khehar.
Work done for the Bar
1. After consultation with the Bar – Tuesdays, Wednesdays and Thursdays have become regular days when regular matters are taken up.
2. CJI and three other senior judges along with me, the Vice President and the Secretary took an official tour of the upcoming construction in Appu Ghar. The Project Manager informed us that priority was being given to blocks, which were for registry and conference facilities and that work would be done on the chambers at end. The CJI unequivocally in the presence of other judges told the construction staff that first priority may be given for construction and completion of the chambers. He also stated that, if possible, the delivery must be made in the month of November and December. The total number of chambers to be allotted are 250 to be shared by 500 members of the Bar.
3. Hon’ble CJI considering the requirements of the Bar for chambers, decided to give the Bar additional land admeasuring more than half an acre. This area would be given to the Bar out of area allotted to Hon’ble Supreme Court. The CJI at his own initiative had a detailed meeting with the Hon’ble Minister of Urban Affairs Mr. Venkaiah Naidu, now the Hon’ble Vice President of India. The 500 chambers and the additional chambers would go a long way in elevating the need of the Bar members for office.
4. CJI also talked to his brother judges that some of the cost imposed may be given to SCBA for the purposes of upgrading library. Hon’ble Justice Dipak Misra Chief Justice designate has directed payment of Rs.30 lacs to SCBA and SCAORA. Similarly, I understand that some other courts have directed payment of cost towards upgradation of library.
5. The Notary Publics had been directed to vacate the Supreme Court premises. They have been accommodated after the intervention of CJI.
Objectionable Emerging Trend in Supreme Court Advocacy
I have discerned an objectionable trend in the art of advocacy since the time of Hon’ble Chief Justice MM Punchhi. Certain section of arguing counsel believes in brow beating a judge and snatching an order after shouting. The brow beating is done very subtly or brazenly by recalling inter- alia incidents which may have happened in the long past. After Justice Punchhi, we saw the same thing happening during the time of Chief Justice AS Anand etc., and currently with regard to Chief Justice designate. It would really be a travesty if Hon’ble CJI is criticized for not having subjugated himself to brow beating and to have held his head high where his judicial discretion was required on the matters of principle.
Not even his worst critic can say that his conduct has been partial to any particular section of the Bar. He has been the same whether it is a senior or a junior.
Appointment of Judges from the Bar
I find the comment that one of the three judges who has been elevated directly to the Supreme Court is not up to the mark. I find this remark highly objectionable and without foundation. This is not the perception which the Bar shares. In fact, the Bar would have been happier if Mr. Gopal Subramaniam and Mr. Arvind Datar would also have been elevated to the Bench.
Rating as a CJI
Very caustic and personal remarks have been made against CJI. The CJI firmly believes that it is the quality input of the bar which results in classic judgments. He has always appreciated the contribution of the Bar in this respect. In the words of Retired Justice Ravindran, “the understanding of a ticklish issue is only a matter of time for the judge concerned as long as total integrity is there and heart is at the right place”. The comments seem to be lacking objectivity.
It is also relevant to note that each CJI has different challenges and different issues to deal with. It would be improper to compare them. History alone will be their best judge.
And seniority alone for selection of CJI was the direct result of supersession of three judges in quest for committed judiciary. There is method, science and logic for making the senior-most judge as the CJI. It must always be kept in mind that CJI becomes CJI after long experience in the collegium and hence continuity is ensured. Humility and self deprecation is evident in CJI Khehar’s statement that when he became a judge, his legal knowledge was only service law. Surely, no right thinking member of the Bar can be expected to believe that this was in any way an admission that he does not have knowledge of other branches of law including Constitutional law.
Remarks with regard to Chief Justice Designate Justice Dipak Misra
We have had privilege of observing Hon’ble Justice Misra for a long period of time, first as Chief Justice of Delhi High Court and subsequently as judge of the Supreme Court. His judgments show his mastery over English literature.
He has an admirable quality of not losing temper in the court. He has been very receptive to the Bar. He has immense capacity to think out of box to provide effective justice.
If Chief Justiceship means being upright, having courage of conviction and disposition to do even justice to everyone, not to be brow beaten or cowed down but to have guts to walk the talk and to live like philosopher Kings of Aristotelian era, then yes, the institution of Chief Justiceship headed by Justice Khehar is a SULTANATE.
I would implore that great lawyers like Dr. Dhavan, who have added immense value to development of law, should not say something which will damage directly or indirectly the very structure which has been built by their contribution and of which he is also a stakeholder.
Disclaimer: The views expressed above are of the author and do not necessarily reflect the views of Bar & Bench.