If indeed there was a ‘devious’ PM or a ‘pliable’ CJI, they would not have been stupid enough to visit each other so openly

Prime Minister Narendra Modi’s visit to the residence of Chief Justice of India (CJI) D.Y. Chandrachud for Ganesh Puja sparked a furore, with some noted lawyers and Opposition leaders quick to criticize it remarking that it raised concerns over the impartiality of the judiciary while the BJP terming the aspersions as reckless and that casting aspersions set a dangerous precedent.

In an exclusive interview to The Perfect Voice's Executive Editor Shoumojit Banerjee, former Maharashtra Advocate General and noted lawyer Shrihari Aney gives his thoughts on the hullaballoo over the PM visiting the CJI's home for a social function.

One prominent Supreme Court lawyer said that the PM’s visit to CJI residence for the function had reportedly compromised the separation of powers between the Executive and Judiciary. Is that really the case?

It is a misplaced emphasis on a legal doctrine which has nothing to do with personal behaviour and I think such reactions are based on our own insecurities. How does visiting anyone’s home amount to an encroachment on the separation of powers? This doctrine [of separation of powers], is really is a very old one which traces itself to the Magna Carta of 1215 A.D. when the Crown’s sovereign powers were separated into three components - Legislative, Executive and Judicial, and vested in three distinct branches of government - the Executive government, the Legislature and the Courts. Their separation is intended to facilitate the smooth functioning of the state so as to prevent one power from trespassing into the area of the other. This doctrine is not a code of behaviour nor does it lay down a code of conduct. It concerns precise areas of action for each of the three powers as defined in our constitution. That said, as they all concern governance of the nation, the demarcation for the areas of action allotted to each authority does not always remain watertight. Hence a legislator today may also don the garb of executive authority if he is appointed a Minister. In a given case the Supreme Court May frame rules or lay down law, which is really in legislative domain. There is certain fluidity despite separation. It follows that to confine or restrict the three to their exclusive spheres is neither realistic nor practical.

Would you say, as the Opposition has been alleging, that the independence of the judiciary has been compromised by this visit?

The PM is almost at the apex of the Executive pyramid. To what extent would you say the executive is compromised if he visited, let us say, the Leader of Opposition’s family, for a social function or a courtesy visit? Would you say that the Executive has encroached on the Legislative area? Should no MP, say from the Opposition party, invite a minister of the government or a Judge of a High Court or Supreme Court for his daughter’s wedding? The problem seems to lie in our distrust of people who occupy these places and not of the doctrine of separation of powers. My political views are completely different than those held by the Prime Minister or his party [the BJP]. I know the CJI for the better part of the last 35-odd years. However much I may criticise the CJI for certain judicial decisions, or the PM, for some government action, I believe they are honourable men who would never allow their personal lives affect their constitutional functions. I believe that that is what Rahul Gandhi meant when he said in a speech in the US that he doesn not dislike the PM personally, but disagrees with his actions & decisions. He made it clear this his was not a case of personal hatred. We seem to lose sight of the difference between public and private actions. Our own feelings colours and distorts our vision. But this is more in the realm of our imagination than reality.

How do you view the attack on this meeting by Opposition leaders and certain other members of the intelligentsia?

My short answer to this if indeed there was a ‘devious’ Prime Minister or a ‘pliable’ CJI, they would not have been stupid enough to visit each other so openly. The very fact that the social visit was so above board makes it abundantly clear that neither thought anything of it except what it was - a purely personal, courtesy visit. It is ridiculous to conceive that the official and personal roles are so watertight that they cannot risk regular social intercourse. Such criticisms are products of scared minds who see a skeleton in every cupboard.

Those casting aspersions on the meeting have suggested it enforces a negative perception about integrity of those in positions of power? 

The vitriolic attack on the PM-CJI meet speaks more about their own sensibilities, and our deficient faith in the goodness of human beings rather than any legal issue. It is in our regrettable belief that everything in our life is touched by vice and corruption. Even natural social relations are viewed with suspicion. There is nothing in doctrine of separation of powers that prohibits people in positions of authority from paying personal, courtesy visits to each other. There are reactions like does the PM know the CJI well enough to visit his home even on personal, celebratory occasions. There may perhaps be good reasons to think in this way, but we should not lose our perspective. It is not as if the PM accompanies the CJI on an evening walk. It is a fact that the government is the biggest litigant of the highest court. That said, far-fetched inferences that are being drawn from this visit. Take an illustration concerning my legal profession. In what way would it be different if one of my juniors at court or my friends or colleagues who now occupy the Bench in the High Court or the Supreme Court come to visits me? Will people begin alleging there is some nexus or corruption involved in a gathering where judges and lawyers are present?

As some detractors remarked, does the meeting reflect that the judiciary is in ‘service’ of the PM and that the judiciary ought to remain aloof? 

This practice of aloofness lies squarely in the realm of convention and historic practice. I am affectionate to my junior who worked in my chambers, and cannot stop being affectionate towards them simply because they are now judges, or government ministers. I do not subscribe to the belief that lawyers should not appear in courts where their juniors or friends preside as judges. When I appear in their courts, I do not expect any special treatment or favours, nor do they get pressured by my appearing before them.

More than half the judges in the Bombay High Court and at least five-six judges in the Supreme Court are my close friends or acquaintances. That does not mean I must not appear in their court. Their hearings and judgements do not contain any ‘fear or favour.’ Given my personal relationship with the current CJI or the previous two CJIs, they will be quite happy to offer me a cup of tea if I happen to visit them. How does this constitute a breach of professional ethics? 

Regrettably, we have somehow turned into a nation of people who distrust one another and reduce everything to a cold, business-like, transactional attitude. This is an unhealthy and unhappy form of behaviour. We search for corruption and favouritism in places or situations where it does not exist.