Conduct impairing public confidence in judiciary is forbidden, even if not illegal

The question of propriety is different from that of legality, and the Centre needs to remember this while acting in matters that involve judicial autonomy. A conduct that has the potential of impairing public confidence in the efficacy, integrity and impartiality of the justice delivery system is strictly forbidden and the Centre needs to desist from taking such actions even if these do not fall in the zone of illegality.

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Its midnight notification transferring Justice S Muralidhar from the Delhi High Court may not have been against the law, after all. His transfer may, in fact, have been carried out in accordance with the policy and by his consent.

It is equally true that timely action on part of the law ministry on recommendations made by the Supreme Court collegium has always been placed in the realm of desirability in a set-up where files usually take months before the proposals are acted upon.

The instances of delay between recommendation and action are more than a few. In the case of a senior Judge belonging to the Punjab and Haryana High Court, orders appointing him as the Chief Justice of another court were passed nearly 10 months after the Supreme Court collegium cleared his name for elevation.

Much later in the case of another Punjab and Haryana High Court Judge, the file remained pending for four-five months before the government. The under-transfer Judge all through the period continued to decide matters.

The fact that there is no time frame for the government to issue a notification while acting on collegium’s recommendations is an actuality that is not in the domain of doubt. Another important aspect of the matter is that earlier recommendations made by the collegium are still pending with the government.

Under the circumstances, the ‘lightning speed’ with which the notification was issued for transferring Justice Muralidhar, and that too in the midst of an important case involving the rule of law, human rights, hate crime and failure of law-enforcing machinery to act, has left the legal fraternity questioning the timing.

To say that the notification did not generate doubt in the mind of a common man having faith in an upright judiciary would amount to a clear-cut departure from the perceptible actuality.

Of course, the Centre is insisting that the process of transferring Justice Muralidhar to the Punjab and Haryana High Court started with his consent and subsequent clearance of his name for transfer by the Supreme Court collegium on February 12. Yet the law ministry should have stopped itself from notifying the transfer when it was bound to generate debate and suspicion. Also, discipline and propriety demanded his continuation at the same place at least for the time being. It would have continued to ensure judiciary’s projection as sovereign and would have been in sync with the cardinal principle that fairness must not only be done, but also seen to be done.

The entitlement of society to expect the highest and most exacting standards of propriety from the judiciary and the government has never been in the sphere of deliberation. It must always be kept in mind by the government that its actions have to be crystal clear, in the public domain and based on the propriety principle, as obscurity, secrecy and ill-timing have no place in a self-governing set-up.

A government, any government, in fact, needs to be more transparent and confidence-inspiring in its actions, lest obscurity and misgivings shrouding its decisions turn themselves into a matter of public debate and controversy.

The powers that be should take note of the fact that organisations and governments function within certain parameters and are guided by written rules and unwritten conventions, which are essential not only for upholding the constitutional system, but also the perception of it.

There are certain standards and practices which the government needs to follow to maintain public trust. They need to draw up principles of conduct and uniform yardsticks to be followed in matters involving public trust and confidence.

The Supreme Court of India in its Full Court adopted a charter, “Restatement of Values of Judicial Life”. Among other things, it requires every Judge at all times to be conscious that he is under the public gaze and “there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held”. The government, too, needs to adopt principles of conduct for dealing with judiciary.

Even now, the government needs to set up a deadline for it to notify recommendations made by the collegium, while maintaining flexibility in its approach and relaxing the norms when propriety demands. The propriety of conduct, acting with a sense of propriety, and love of propriety, need to be the guiding factors for the government. There has to be a wall between judiciary and politics with no breaches.

Law & Order

Govt should desist from contesting cases to pass the buck

Taking note of the fact that the state is the biggest litigant, the Punjab and Haryana High Court has made it clear that the governments are required to desist from the practice of contesting cases “just to pass the buck and contest for the sake of contesting”.

The Bench also made it clear that the governments are required to be cautious in their approach towards litigation and contest cases only if necessary; and greater responsibility for decongestion of cases in the courts is on the shoulders of the governments, both Central and state.

The Bench has added that enormous time of the courts and offices, besides money spent on frivolous litigation, has stirred judicial conscience. “A million-dollar question comes to the mind of the court why should the government system be not responsible so as to prevent litigation where it can rationally and logically be prevented, as state is the biggest litigant in the country,” the Bench added.