How Tehelka embarrassed the judges

Having quit both the posts out of ‘anguish’, Venkataswami would have us believe, simply on the strength of his having been a judge of the apex court, that he could hardly have been suspected to allow any new job to influence his Tehelka probe.

He added for good measure that he had accepted the finance ministry appointment earlier in the year only because the then chief justice of India, S.P. Bharucha, had himself approached him. Clearly, the burden of his statements is, the Opposition’s criticism of his finance ministry appointment has done damage to the institution of the Supreme Court.

In his elaborate defence, Venkataswami also referred to the interim orders he passed in the course of the Tehelka inquiry. It must be conceded that his work there does bear testimony to his independence from the government as most of his interim orders on crucial issues went in favour of Tehelka.

The government spared no efforts to stop him from issuing a Section 8B notice to George Fernandes for fear that it would appear as an acknowledgement that the minister’s role was under scrutiny. Equally, the government tried hard to ensure that Tehelka journalists were cross-examined before anybody else was called to the witness box.

Besides, Jaya Jaitly repeatedly challenged the authenticity of the tapes produced by Tehelka. Venkataswami thwarted the government and its supporters on every one of those occasions.

Thus there is little in his Tehelka inquiry record to suggest that Venkataswami would have been influenced by his appointment to the Authority for Advance Rulings on Excise and Customs.

But whether the same can be said in generic terms about any Supreme Court judge is rather debatable. What is in issue is not the integrity of a particular person. As the oft-quoted legal maxim goes, justice should not only be done but also seen to have been done. Every judge is apt to quote it any number of times while adjudicating disputes concerning others. Venkataswami could not have lost sight of the maxim when it came to his own case.

If anything, he seemed to be trying to divert attention from it by dragging in the office of the chief justice of India. His plea is that he could not have declined when the chief justice himself asked him to take the finance ministry job.

When the government was seeking to fill that slot, Justice Bharucha could not have been unaware of the fact that Venkataswami was already engaged in the Tehelka inquiry. If he still recommended Venkataswami’s name, Bharucha should be presumed to have taken all the relevant factors into account and made the best possible decision in the circumstances. Indeed, the presumption is, the chief justice’s decision is ipso facto transparent.

The Venkataswami controversy throws light on one major dichotomy in the functioning of the judiciary. When the judges adjudicate cases, they take care to hold the proceedings in a transparent manner so that justice is not only done but also seen to have been done.

All the interested parties are allowed to have their say in an open court and the judges record the reasons for the decisions they arrive at.

But when the chief justice of the Supreme Court or a high court functions as the administrative head, none of the usual judicial constraints is observed — nor is any pretence made of this having been done so. It is as if the chief justice, institutionally, has a split personality.

Therefore, Bharucha was well within his rights when he recommended Venkataswami’s name for the finance ministry post.

Since this unfettered discretion is the root cause of the trauma that the judiciary is going through in the wake of Venkataswami’s resignation, one hopes that the judges would use this occasion to do some introspection and introduce transparency in their administrative functioning as well.

The benefits that can accrue from such a reform are far-reaching. For one, transparency in the chief justice’s office will prevent the Venkataswami-kind of embarrassment. If Bharucha had been obliged to record reasons for choosing Venkataswami, he would have rather recommended somebody else.

An even more important benefit of transparency in this area will be a sharp improvement in the quality of appointment of judges to the courts themselves. Much to the discomfiture of deviant elements in the judiciary, transparency will also make the internal disciplinary mechanism a reality.

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