In a single moment of inattention, three senior judges of the Supreme Court have placed the institution in a cloud, while displaying to the nation what appears to be an unusual eagerness to toe the Govt line on the Rafale fighter aircraft acquisition project.
Courts and Justice, like currency, are merely a story that large sections of a populace believe in, content in the knowledge that the story about courts and justice is true. A breakdown of belief in this story can be fatal to ordered societies. It is therefore incumbent upon courts to ensure that ‘not only must Justice be done; it must also be seen to be done’. This phrase arises from a precedent laying judgment from England, heard at the King’s Bench division of Lord Chief Justice Hewart.
In 1923 McCarthy, a motorcyclist, was involved in a road accident which led to his prosecution for dangerous driving. Unknown to McCarthy or his lawyer, the court clerk worked with a firm of solicitors who were acting in a civil claim against him, in connection with the road accident. After the hearing, the justices retired to chambers with the court clerk and emerged a while later, to deliver a judgment convicting McCarthy. When McCarthy learned of the provenance of the court clerk, he appealed to have the conviction quashed.
In a landmark judgment, Lord Hewart wrote:
“It is said, and, no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way. But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done.
Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. Speaking for myself, I accept the statements contained in the justices' affidavit, but they show very clearly that the deputy clerk was connected with the case in a capacity which made it right that he should scrupulously abstain from referring to the matter in any way, although he retired with the justices; in other words, his one position was such that he could not, if he had been required to do so, discharge the duties which his other position involved. His twofold position was a manifest contradiction.
In those circumstances I am satisfied that this conviction must be quashed, unless it can be shown that the applicant or his solicitor was aware of the point that might be taken, refrained from taking it, and took his chance of an acquittal on the facts, and then, on a conviction being recorded, decided to take the point. On the facts I am satisfied that there has been no waiver of the irregularity, and, that being so, the rule must be made absolute and the conviction quashed.”
This case and the principle of natural justice arising out of the judgment, has become the touchstone of judicial propriety across the world. It behoves Justices of the Supreme Court of India, to follow the principle to not only its letter but more importantly, its spirit.
The Supreme Court was recently seized of a bunch of petitions questioning the process and specifics of the Rafale fighter aircraft deal. In response to the court’s queries, the Government submitted documents in a sealed cover, taking the plea that the documents could not be revealed in open court due to the sensitive nature of the contents. Instead of questioning the Governments line, as to how a knowledge of costs can threaten a nation, the three Justices presiding over the case, went along with the Government line, creating in their wake, the strangest ever judicial precedent, of the plaintiff’s case being dismissed even while the plaintiff remained unaware of the defendant’s defence against his charges!
The judgment thereafter, appeared like a silent acquiescence to the publicly known Government line on the subject, without even a clarification on the points of law upon which the Justices relied, to deliver the judgment. This brings not only disrepute to the highest court of the land, but places their Lordships in the piquant situation of being seen to be subservient to a defendant in their court. That not just one but a three judge bench went along to accept such a state of affairs, has created an unsavoury situation for India.
To make matters worse, no one knows the provenance of the Bench’s source of information, namely that the CAG had examined the case and had delivered a written report to Parliament’s Public Accounts Committee, which turns out to be a patent falsehood, but upon which the Bench relied entirely, to deliver its judgment. Whatever be the case, we now have the unseemly sight of a Government scrambling on a Saturday afternoon, for judicial review of a judgment delivered in its favour, obviously to pre-empt what seems to be its fear of facing Parliament’s ire at having submitted an apparent falsehood to the Supreme Court.
Whatever be the truth, it now behoves the three Justices, in the interests of upholding the nation’s and the court’s honour, to recall their order, recuse themselves from the case and allow another Bench to begin afresh.
(Rajiv Tyagi is an erstwhile MiG-21 fighter pilot and a social media commentator.)