Who will watch the watchmen

WHO WILL WATCH THE WATCHMEN WHO WILL WATCH THE WATCHMEN? By Syed Shadfuddin Pirzada Lord Bridge ended his Judgment of the House of Lords in Rex versus Shivpuri (1987) A.C.1 by the following: "I cannot conclude this opinion without disclosing that I have had the advantage, since the conclusion of the arguments in this appeal, of reading an article by Professor Glanville Williams entitled `The Lords and Impossible Attempts, or Quis Custodiet lpsos Custodes?' (Who will watch the watchmen themselves?) (1986) C.L.J. 33. The language in which he criticises the decision in Anderton v. Ryan is not conspicuous by its moderation, but it would be foolish, on that account, not to recognise the force of the criticism and churlish not to acknowledge the assistance I have derived from it". In this article three forensic incidents are being recalled from foreign jurisdictions. Chief Justice Hewart: "This is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done". This dictum was propounded by Lord Gorden Hewart in Rex versus Susses Justices (1924) 1‑KB at 259, but Hewart became Chief Justice in a questionable way, which may be mentioned in brief. In 1921, Lord Reading, the then Chief Justice was appointed Viceroy of India. Before accepting the appointment a plan was devised to defeat the claim of the Attorney‑General, Sir Gorden Hewart, to that office, in accordance with the British traditions and to ensure Lord Reading's future. Lord Reading and the Prime Minister Lloyd George, arrived at an arrangement that an elderly Judge should be put in as a stop‑gap Chief Justice so that when Reading would return he would assume the post as Chief Justice. Lloyd George persuaded 70‑year old Justice A.T. Lawrence to accept the extraordinary condition and signed a non‑dated letter of resignation which could be used at any time. Lord Birkenhead, the Lord Chancellor, strongly opposed such an arrangement, being contrary to the Act of Settlement. However he was overruled by the Prime Minister. In April 1921, Lawrence was appointed Chief Justice. The Viceroy (Reading) cabled his congratulations from Lahore. By January 1922, the newspapers were bubbling over with talk of a General Election. `I shall resign as Attorney‑General and give up politics altogether if I am not appointed Chief Justice', Hewart threatened Lloyd George, who obliged him. In March, the Lord Chief Justice (A.T. Lawrence) coming up to London to finish a case adjourned from the previous day, opened The Times and read in it of his own resignation. Hewart succeeded in his manoeuvre and was appointed Chief Justice. Lord Reading must have repented. Henry Cecil, author of The Brother‑in‑law and usually such a tolerant observer of legal frailties, writes: "Lord Hewart was a shockingly bad Judge". Election Petition against Indra Gandhi: On 24th April 1971, Raj Narain filed a petition in the Allahabad High Court against Mrs. Indra Gandhi alleging corrupt practices and claiming that her election be declared void. The case dragged on in the High Court till 23rd May, 1975 and the judgment was reserved. Both sides were equally hopeful of winning the case. Among people who had heard the arguments, odds offered were even. The people who had not heard the arguments, however, were extremely sceptical about the "boldness" of Justice Jag Mohanlal Sinha. The general opinion outside Allahabad High Court was that the Judge would not have enough courage to declare the election void. The fact of the Prime Minister being the respondent over‑awed the people, who made their speculations independent of the merits of the case. Justice Sinha had constantly been taking notes of the arguments. Thus, as soon as the arguments concluded, he was ready to write the judgment. Before beginning to dictate it, he asked his Private Secretary gravely "I don't want the judgment to leak out to any one, not even to your wife. It is a big responsibility. Can you undertake it?". The Secretary had been with the Judge for a long time and was a trusted man. The Judge wanted to write his judgment in peace. But as soon as the Court closed, he started receiving daily visits from a Congress MP from Allahabad which annoyed him immensely. He requested the person not to visit him. When he persisted, the Judge had to ask his neighbour, Justice Parckh, to request the MP to stop bothering him. When even this did not succeed, he "disappeared" inside his house, not showing his face even in his own verandah. All visitors calling on him were told that he had gone to Ujain, where his brother resided. He did not receive any phone calls either. So from 28th May till June, no one was able to meet him, not even his closest friends. Before he went into seclusion, however, the Judge had another distinguished visitor. In the course of their conversation the distinguished visitor mentioned that he had been to Delhi recently and that he had heard Justice Sinha's name being mentioned in high political circles there, for elevation to the Supreme Court. Justice Sinha was shrewd enough to understand the implications. He said that he was too small a man for that big chair.‑ The judgment was almost completed by 7th June. Around that date, Justice Sinha got a phone call from Dehra Dun. It was the Chief Justice of Allahabad calling. Justice Sinha had to talk to him. The Chief Justice said that the Additional Secretary of the Home Ministry, P.P. Nayar had met him and he wanted the judgment to be postponed till July. This was probably because of Mrs. Ghandi's planned visit to Mexico for the International Women's Year Conference. She probably wanted to be in India when the judgment came. Justice Sinha was angry at this request. After telling the Chief that this was not possible, he immediately drove down to the High Court, to order the Registrar to inform the parties and the Press that the judgment would be delivered on 12th June. Meanwhile, things were warming up in Allahabad. A special task force of the CID was employed to find out the contents of the judgment. They went to the house of Justice Sinha's secretary, Manna Lai, late on the night of 11th June. He was asked to disclose the judgment. He said that he did not know it (which had an element of truth in it, because the crucial parts of the judgment were added at the last moment by Justice Sinha). When he stayed mum even after much coaxing they left with a veiled threat. "We will come back in half an hour. You better tell us the judgment then, if you know what is good for you." Manna Lai was frightened, and did not waste any time. Packing off his wife to the house of some relatives, he quickly went to seek refuge in Justice Sinha's house. For that night, he was saved. In the morning he went back to his house to get ready. Just before 8‑00 a.m., a fleet of cars arrived at his house. The CID was back. They again enquired about the judgment and told Manna Lai that Mrs. Gandhi herself was on the hot line. He could tell her judgment personally. He said that he was getting late and left for Justice Sinha's house. On 12th June, Justice Sinha entered the Court room at 10 a.m. The Judge looked at the huge crowd in the Court and read out the operative order from 250 pages judgment: The petition was allowed and Mrs. Gandhi's election was declared void. Note: The Appeal of Indra Gandhi succeeded in the Supreme Court, among others, in view of Election Laws (Amendment) Act, 1975 and the Constitution (Thirty‑ninth amendment) Act, which were passed by the Indian Parliament in August 1975 after the judgment of Justice Sinha. Fundamental rights case: Keshvananda Bharti versus State of Kerala is the famous case decided by Indian Supreme Court as to the power of the parliament to amend the fundamental rights. The arguments were exhaustive, 30 days were taken by counsel for the petitioner and 35 by the advocates of the Government and the writing of the judgment also had taken much time. During the arguments Justice Beg fell ill. His illness had caused an unseemly scene in the Chief Justice's Court room before Palkhivala was to reply to the case presented from the Government side. Beg was in hospital and could not sit on the Bench. The very concept of justice demanded that all Judges had to hear the arguments before giving judgment. Since Sikri was to retire on 26th April, 1973 and before that he had to go to London on a long‑pending assignment, the case could not be postponed further. He suggested that the proceedings of the Court during the absence of Beg could be tape‑recorded for his benefit. But Government's lawyers did not agree to this. They thought that Beg, who sounded favourable to them, was being kept out purposely. Niren De, the Attorney‑General, even threatened that he had instructions to "withdraw" from the case if Beg was left out. But a compromise was found and Palkhivala submitted written arguments. Before the verdict was announced in the open Court, the Government knew that the judgment was "split" 7 to 6. The text of the unfavourable (majority) judgments was also in the hands of the Government. In fact, as and when some Judges sent their judgments to their colleagues they found their way to the Government. Even details of the informal discussions which the ‑‑Judges had among themselves had reached the Government. At a dinner party Sikri old Justice ‑Beg. that the copies of judgment by some Judges had reached the government before they were announced. Beg said he had no knowledge of it because he was lying ill in 4 hospital. It may be mentioned that Justice Ray, Justice Beg and two other Judges refused to sign the final order saying that the same did not represent the majority. Nine Judges did however sign the order. Shelat, Hegde and Grover, the three senior Judges, who had signed the order, were superseded and Justice flay was appointed Chief Justice on 24th April 1973 by the Government of Indra Gandhi. It may also be recalled that Mrs. Gandhi had superseded Mr. Justice Khanna, the Senior most Judge, as Chief Justice of India because of his brave dissenting judgment in the Habeas Corpus Case. M.C. Chagla the famous Jurist, commented: "The Government has made no secret of the reason why it superseded these Judges. Its leaders have told us in unmistakable terms that they want Judges who accept the social philosophy, not of the Constitution, not of the country, but of the ruling party. Henceforward there will be a competition among the Judges as to who is more forward‑looking and who has better imbibed the gospel of the ruling party. Every Judge sitting on the Bench must look out of the window of his Court, before he gives, his judgment, to see the direction of the wind".