The chief justice of the Karnataka high court, Justice P D Dinakaran, who has refused to proceed on leave as advised by the supreme court collegium and may now be transferred to the Sikkim high court, has made a travesty of our judicial and democratic system. The collegium now has to shift a judge who was sworn in as the chief justice of the Sikkim high court on Tuesday to make way for Justice Dinakaran. The series of developments in the Dinakaran saga and the twists and turns it has gone through do not bring any credit to the higher judiciary.

It is a contradiction that the little Indian who is larger in number is bluffed by those who have state power and resources. The Union law minister recently realised the importance of the lower courts for dispensing justice to the masses. They are more important to the people than the remote, lofty higher courts which are expensive and unapproachable. The minister announced an expenditure Rs 5,000 crore to strengthen the lower courts. But he missed the real weakness of the present judicial process.

If the lower courts, which form the foundation of the judiciary, are weak, the whole structural fabric will fail. Eighty-seven per cent of the litigation in the country is fought out in the lower courts. If they are manned by brilliant young judges, the judiciary will be invigorated and will command great regard. If justice at the trial stage is strong, then the judicature will be great at the ground level. If the trial court is fragile and the supreme court a crowd, the institution will remain just a glowing illusion in the sky.

The small litigant will lose all he has and he will fail to secure justice. A top-heavy and fragile system will be a disaster. The Parkinson’s law, which states that organisations become top-heavy even as output diminishes, and the Peter principle which says that in an organisation every member rises to his level of incompetence are both true of the higher judiciary now.

The more the number of judges, the less the work, and the bigger the pile of arrears. Such a structure will weaken the courts and adversely affect the delivery of justice. The problem is aggravated when the moral calibre of judges comes to be questioned and when ineffective methods and procedures are followed to deal with it. The creation of new mechanisms like the collegium is another way of compounding the problem rather than solving it.

A constitutional conundrum

The collegium of the supreme court is a constitutional conundrum. It is not mentioned in our long Constitution. It is not an institutional functionary and was created by the judiciary.

Many jurists, the bar and journalists are averse to discussing the handling of the Dinakaran case for fear of misuse of contempt of court. Many jurists are not forthcoming with their views when the chief justice of the world’s largest democracy keeps information secret and says he is not a public servant. Then whose servant is he? The judicature will no longer command confidence if they are, like Everest, beyond the reach of Indian humanity. It was too plain a blunder.

Justice Dinakaran has defiantly dismissed a direction of the top body of the supreme court. How can a judge who is accused of wrongdoing and has been found unfit to be elevated to the highest bench be allowed to continue as the chief justice of a high court? How should the people take it and what should they make of it? It is still worse when they discover that the same judge, who is under a cloud, is transferred to the Sikkim high court. It is being unfair to the people and the litigants of Sikkim.

The obvious course to be adopted is to prosecute the corrupt judge. The judges are also bound by the penal law, given the sanction of the chief justice. Does not the high Bench know this? Who is more ignorant than the other, the collegium or the delinquent judge? The pity of it is that India should be a victim of this folly.

The flouting of a high collegium by a judge and his getting away with it is bad enough. But it is equally shocking that a chief justice and his senior-most companions of the highest court have pocketed the insult without straightaway directing prosecution of the culpable for corruption. It is strange that a puisne judge is so pugnacious and the collegium is pusillanimous. The penal code should not be sleeping when the accused is a judge.

The robed brethren are not beyond the reach of the Indian Penal Code. Be the judge ever so high, he is not above the law, and the highest judge cannot be ignorant of the law. The highest court can act now, even though it is late, and start prosecution proceedings against Justice Dinakaran, without waiting for his impeachment. Ignorance of law is no excuse even for the highest judicial office. There is no iron curtain between the curial robe and the criminal code.

(The writer is a former judge of the supreme court)