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Thursday, December 16, 2010

Chief Injustice of India
K.G Balakrishnan – Part I


Sir Walter Scott wrote: “An hour of crowded glory is worth an Age without a name.”

In my view, the tenure of the thirty-seventh Chief Injustice of India Konakuppakatil Gopinathan Balakrishnan, also known as K. G. Balakrishnan, which lasted from January 14 2007 and ended on May 12 2010, was the darkest age in the history of Justice and Jurisprudence in India. FOR THIS IRRESPONSIBLE JUDGE, AN HOUR OF CROWDED AND RAPACIOUS VENAL GLORY WAS WORTH MORE THAN AN AGE OF PROBITY AND INTEGRITY. I have come to this conclusion after a detailed discussion I have had with Senior Advocate P.A Chandran of Kerala High Court in Ernakulam. He had moved a petition in the Supreme Court of India against the unconstitutional and illegal appointment of Justice K. G. Balakrishnan as the Chief Justice of India on January 14, 2007.

The petitioner, Advocate Chandran, had alleged that Justice Balakrishnan was illegally appointed to the Kerala High Court in 1985 though he did not fulfil the requirement laid down in the Constitution for appointment as a High Court judge. According to Advocate Chandran, it is mandatory for a person to have a minimum of 10 years service as a District Judge or 10 years practice as an Advocate before being elevated to the High Court. In the case of Justice Balakrishnan, Advocate Chandran alleged that Justice Balakrishnan had worked merely as a Munsif Magistrate from 1973 to 1983, a post which is considered as subordinate judiciary and, hence, rendered him ineligible for the High Court Judge's post. Since his original appointment as High Court judge was it self illegal, his subsequent elevation as Chief Justice of India was also illegal, the petitioner Advocate Chandran argued while seeking his impeachment.

A Bench comprised of Justices R V Raveendran and B Sudershan Reddy found no merit in the petition of Advocate Chandran, which, the Bench said, had been filed belatedly after 24 years. They dismissed the petition in the most casual, peremptory and untenable manner. The transitory and ephemeral private interests of Justice Balakrishnan seem to have mattered more to these Judges than the rigid and inviolable adherence to the legal and constitutional norms for proper appointments to the highest constitutional posts in the deathless cause of public interest.

Perhaps Justice Learned Hand, one of the greatest Judges America has produced during the last 200 years, had our Supreme Court Judges in view when he declared in Loubriel v. United States (9F2D 807, 808, 1926) in 1926: “There is no surer sign of a feeble and fumbling Judge’s law than timidity in penetrating the FORM to the SUBSTANCE.” Honourable men who care for the FORM or the SUBSTANCE, of Law seem to have no place on any Judicial Bench in India!

Moreover, I only wish that these unusually ‘Learned’ Judges R V Raveendran and B Sudershan Reddy had not lost judicial sight of precisely demarking and indicating the letter and spirit of the existing corpus of law which clothed them with requisite legal authority to enforce the Law of Limitation to give the kind of benefit which they gave to the former Chief Justice K.G Balakrishnan. As Judges committed to the cause of enforcement of the impersonal Rule of Law in letter and spirit, they are not expected to display all the known and unknown vagaries of an Oriental Despot like Timur or Chenghis Khan. Many of the Supreme Court Judges with known Communist affiliations and attachments seem to be boisterous in their display of ridiculous vanity on the one hand and unrestrained whimsical autocracy on the other.

Since I am not a trained lawyer, to the best of my knowledge as a common citizen, all I can say is that there is no written Law of Limitation which can be invoked to protect illegally appointed judges!!! Moreover, if such a Law exists, then the protection of that Law must be extended and made applicable to thousands of illegal and irregular appointments at all level extending to peons, sweepers, casual labourers working on daily wages in various government offices and public institutions in India. In my long and varied administrative career in the Indian Administrative Service, I have come across hundreds of cases where the Supreme Court Judges and the High Court Judges, pompously pontificating with vainglorious authority over the Principle of the Rule of Law, have passed untenable orders terminating such appointments even after the lapse of time periods extending over several decades!

The Fountain of Mercy, Compassion and Consideration must flow from the Highest Levels of Governance to the Lowest Levels in an unchecked, unhindered and unobtrusive manner and not in the reverse direction as it is happening in the Sonia-ridden and Sonia stricken India of today. The Learned Judges ought to learn that no river ever runs up the hill!

In the Highest Echelons of the Judiciary or Public Administration, the standards of integrity, rectitude, probity, decorum that have to be enforced at any cost without any fear or favour, ought to be cast in a mould of grand steel and not in a vaporously weak, shakable, easily lapsable and suddenly collapsible manner. Even if a written provision of law exists for appointing even a criminally sentenced person to a post, such merciful provisions can be readily invoked only in cases of public appointments at the lowest level, like that of sweepers and casual employees, and certainly not at the level of High Court Judges, Supreme Court Judges, I.A.S and I.P.S officers, Central Vigilance Commissioner, Chief Election Commissioner, President of India, etc,. Let me give an example to illustrate this point. If there is a written provision for appointing a person to a particular post in spite of his having undergone and completed his sentence for pick pocketing, there is no harm in such a person being considered for appointment as a sweeper or a peon. Mutatis Mutandis, on the same principle of Social Mercy and Political Compassion, we cannot elevate some High Court Judges with known corrupt, shady and murky backgrounds tarred with moral turpitude as Supreme Court Judges!

In the next part, I will elaborate on the war of words between Justice R Reghupati, former Judge of the Madras High Court, Justice Gokhale, formerly Chief Justice of Madras High Court and now a Judge of the Supreme Court of India on the one hand and former Chief Justice of India K.G Balakrishnan on the other.

former Chief Justice of India K.G Balakrishnan

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