Justice is fragile without honour. The letter of the law is finite, but the spirit of the law is infinite. A judge is measured by rectitude, a moral virtue.
Justice appreciates the need for partisan argument, and allots this role to a lawyer. A lawyer is one-sided by vocation, which is why he is called an advocate. The judge makes decisions, including of life and death. That is a higher calling, in any court, lower, higher or supreme.
Among the honourable practices in our legal system is the opportunity a judge has to recuse himself, that is to withdraw voluntarily, from a case in which there might be any suspicion of personal feeling vis-à-vis a litigant. We are not discussing corruption; in fact, a judge who is corrupt will insist on presiding over a matter. But honour among brother judges is maintained only when the decision is voluntary. If a judge is removed from a bench, then it becomes a judgement on the judge himself.
This is what makes the decision to change the original Supreme Court bench of Justices S.J. Mukhopadhyay and N.V. Ramana in the anticipatory bail application of Teesta Setalvad and her husband Javed Anand so surprising. The two did not recuse themselves. They were dropped after lawyers who supported Ms Setalvad publicly alleged bias on the specious grounds that Prime Minister Narendra Modi had gone to the wedding reception of Justice Mukhopadhyay's daughter in December and that of Justice Ramana's daughter earlier this month. Does the Chief Justice of the Supreme Court really believe that his brother judges had become dishonest merely because a social nicety was observed? Does he think they are so weak of mind if not deficient of character? And if they are, then what credibility do they bring to any of their present and future duty in Court? Surely the Chief Justice is aware that inviting the Prime Minister to a wedding reception is the norm within the upper hierarchy of the Delhi establishment? Prime Minister Modi often accepts. Did Prime Minister Manmohan Singh and Mrs Sonia Gandhi never accept any social invitations from a Supreme Court judge during the decade that UPA was in power? Did this affect any judgement by the Supreme Court, given the fact that the UPA government was buffeted constantly with one high-voltage corruption case or the other? Don't Supreme Court judges meet Prime Ministers and politicians at dinners in Delhi? It has been argued by Ms Setalvad's advocates that a distinction should be made, and that wedding receptions are a "personal" affair. Someone should introduce them to India. The one formal occasion in a parent's life is the wedding ceremony of a son or daughter. Only those who do not know India will believe that a wedding invitation is sent to only close friends. A marriage in our country is not just another "function", a sort of elder brother to a convivial dinner. In fact, it works the other way round: while an invitation is considered obligatory, not being invited is treated as a sort of public snub. Did Mulayam Singh Yadav invite Narendra Modi to his grandson's wedding because Modi is a very dear friend?
Among the honourable practices in our legal system is the opportunity a judge has to recuse himself, that is to withdraw voluntarily, from a case in which there might be any suspicion of personal feeling vis-à-vis a litigant. We are not discussing corruption. But honour among brother judges is maintained only when the decision is voluntary.
Justices Mukhopadhyay and Ramana had no idea, when they sent their invitations, that they would be sitting on this bench. The invitations were sent long before the Setalvad case was listed on 13 February. The Chief Justice was surely aware of the PM's presence as guest of Justice Mukhopadhyay, not least because he himself was there. This, very correctly, did not prevent him from naming Justice Mukhopadhyay to the bench in the Setalvad case. He probably never gave it a second thought, because he trusted his brother judge. Why did he change his mind?
The answer is uncomplicated. The Chief Justice was possibly pressured by the campaign led by lawyers supporting Ms Setalvad. In the process, he hurt the reputations of his brother judges, and did his own hallowed institution some collateral damage. The analogy that Caesar's wife should be above suspicion is used so often that it has become a cliché. I wonder, often, about Caesar: shouldn't Caesar be above suspicion as well?
I am not entering into the merits of the case. I am quite sure that the new bench of Justices Dipak Misra and Adarsh Goel will be fair, as expected of any Supreme Court judge. During its first hearing the new bench was tough with both the counsel for Gujarat government, which wants judicial custody of Ms Setalvad, and her lawyer, telling the latter to produce all documents that the police wanted.
If Justices Misra and Goel have not, by some chance, met the Prime Minister already at some gathering, it is certain that they will. So what, in either case? Every judge of the Supreme Court knows his mind and understands the moral quotient of his job.
The law has the resilience to look after itself. Honour needs a bit more care.