“Who is the Chief Justice?”: SC restrains Justice Shylendra Kumar’s order

Bar & Bench News Network

Jun 16, 2010

The Supreme Court has stayed the interim orders passed by Justice D.V. Shylendra Kumar in which he had made remarks about the administrative decisions including the composition of Benches, roster system and also allocation of matters to the puisne judges, by both the Registrar Judicial and the Chief Justice of the Karnataka High Court, Justice P.D. Dinakaran.

The Chief Justice of Karnataka is facing an impeachment motion by Chairman Hamid Ansari under the Judges Act, 1968. He last presided over cases on December 7, 2009 and it has been almost six months since he has been absent from court.

The matter reached boiling-point, when a bench headed by Justice Shylendra Kumar recently took offense to the Chief Justice’s decision to list a tax matter which was heard by the bench he presided on, before another bench while the original bench was hearing matters at the Dharwad Circuit Bench.

Media reports claim that the High Court in its petition before the Supreme Court said Justice Shylendra Kumar made the following comments: “Who is the Chief Justice? What authority does he have? The Chief Justice could be the highest authority, but he cannot alter judicial orders. It is dereliction on the part of the Chief Justice, if he is altering orders of others, by doing so the High Court has lost its sanctity.”

Adding to this, the bench comprising of Justice Shylendra Kumar and Justice Ananda had “berated the registrar for nearly an hour” in the open court. Upset over the events, the Registrar Judicial decided to file a petition in the Supreme Court of India against this. The Karnataka High Court represented by Senior Counsel, Udaya Holla, argued that such reporting of matters in the Press had caused immense disregard in the minds of the litigant who came to the court seeking justice.

A vacation bench of the Supreme Court, headed by Justice Deepak Verma and Justice Radhakrishnan, however observed that, the matter ought to be placed before the Chief Justice of India since it involves judicial discipline and must be discussed in an extra judicial manner. The Bench said “We are of the considered opinion that it would be inappropriate for any judicial matter to be discussed extra-judicially, that is, apart from hearing it in the court.”

The newspaper Hindu has summarized Udaya Holla’s argument before the Supreme Court. Here are excerpts of his argument.

When senior counsel Uday Holla, appearing for the High Court, said “it pains me a lot,” Justice Verma orally observed: “I am part of the system and I have tears in my eyes. Let us hope good sense will prevail on him [Justice Kumar].”

On Holla's submissions that various details were sought by the Division Bench from the High Court Registrar-General and the Registrar (Judicial), the judges said: “We have critically gone through the interim orders passed on different dates. Several queries and details are being sought for by the Division Bench, which in our considered opinion, prima facie do not appear to be relevant and germane to the facts of the main matter which is being heard by the Bench.”

Holla also read the 1998 judgment in the case of State of Rajasthan vs. Prakash Chand and others, which said: “By casting aspersion on the judges personally or using intemperate language against them, the critics, whoever they may be, strike a blow at the prestige of the institution and erode its credibility. That must be avoided at all costs. The foundation of our system, which is based on the independence and impartiality of those who man it, will be shaken if disparaging and derogatory remarks are permitted to be made against brother judges with impunity. It is high time we realised that the much cherished judicial independence has to be protected not only from outside forces but also from those who are an integral part of the system.”

The judgment further said: “It needs no emphasis to say that all actions of a judge must be judicious in character. Erosion of the credibility of the judiciary in the public mind, for whatever reasons, is the greatest threat to the independence of the judiciary. The administrative control of the High Court vests in the Chief Justice alone. The Chief Justice is the Master of the Roster. He alone has the prerogative to constitute Benches and allocate cases to the Benches so constituted. Puisne judges can only do that work as is allotted to them by the Chief Justice or under his directions.”

The Bench has now posted the matter to the fourth week of July.

Comments(5)

1. "The turn of events is unfortunate. True that Justice Kumar should have acted with more responsibility but is it not a travesty of justice and failure of system that allows a Chief Justice facing impeachment motion and who has been absent from the Court to be the master of the rolls. Again is it not the responsibility of the Hon'ble Supreme Court to see that the system does not go into a freeze. The Justice Dinakaran matter cannot just be kept in cold storage. He may be directed to go on leave at the earliest to preserve decorum and judicial dignity.". Guest, India
2. "The Supreme Court has turned the Nelson's eye to the fact that Justice Dinakaran is facing iimpeachment motion for his glaring corrupt activities and he has lost all moral authority to remain in the post of Chief Justice of Karnataka. If the high Court do not behave in the manner they are expected to, then there is hardly any doubt that they will erode their personal integrity as well as of the judiciary.If any sense of shame is left in Justice dinakaran then he should have kept awy from all judicial and administrative activities of the High Court. It is regretable indeed that the Supreme Court has gone into the technicalities rather than giving the holistic consideration to this particular case, which is so germane to the very credibility of the system. I denounce the chastising of Justice Shylendra Kumar by the Supreme Court.". Parmanand Pandey, Delhi
3. "Every judge be it magistrate, small cause court, district court, high court and supreme court should personally own the judiciary. Source of thinking while imparting justice should always be exercise of parental jurisdiction. The demand of carefulness, exercise of wisdom and discretion, to be dispassionate, qualitative equality and above all do not allow facts to over throw well established principles of law. However tempting and convincing a situation it might be to demonstrate individual personal thoughts over others or any system, it should always be projected through well established principles. What needs to be understood for democracy to survive and sustain is the growth of the institution on well established principles. In the history of any institution fluctuation in its ability to sustain optimal quality has to be appreciated as natural events. Parents cannot become good calling another parent bad. Individuals have to fit in to the institutions of parent which has prescribed well established qualities. There are many parents not qualified to be parents. But that has not reduced the institution of parent. It is only apparent qualities that defines whether a individual fits in to an institution or not. It cannot be the other way. All that we at the bar needs to do is to not get over powered by events. Lets see facts as facts. We are also involved in the process of imparting justice and it is equally demanding on us to exercise parental jurisdiction. Lets not take position as to who is correct and who is wrong. We have matured judiciary and these events or turmoils are expected. The manner in which when a citizen comes to a lawyer or when a lawyer rushes to court with urgency and at both the points the dispassionate dealing of intensity of the problem is what is called for now and it should be dealt accordingly.". Manjunath B.s, Bangalore
4. "It is very unfortunate that misplaced sympathy is being shown by some judges of the Supreme court to Justice Dinakaran Who has stubbornly refused to respect the sentiments of the Supreme court to refrain from important works including the judicial ones. He also did not obey transfer order to Sikkim High Court.Rather he went on medical leave to circumvent the order.The outgoing CJ Mr. Balkrsnan actions also leave a lot of questions.People are very upset that justice Kumar has been unfairly berated.Is Justice Dinakaran so influential that even under impeachment process he can do what he desires? ". Dr.vijay Kumar Sinha, Patna
5. ""It doesn't matter that who owns the power or exercise the power.Matter is this that in the circumstances where conflicts raise between the similar powers or representatives having or exercising the power who can initiate the winding up process of that conflict? Who is having the right or power?Obviously the Supreme or the senior most official is having the right or power.If there is not any clear instruction about it then he/she may exercise his/her authority as chief or senior most.It's vested in his/her post.". Amit Shukla, Lucknow,Uttar Pradesh

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