The chief justice of India has done well to refuse to look into charges of corruption against some family members of Mr. Morarji Desai and Mr. Charan Singh. The issue is highly contentious and continues to arouse considerable passion. For a couple of months the situation has not been as bad as it was late last year when the Rajya Sabha was paralysed for weeks because the government was not wilting to abide by its resolution calling for a probe either by a commission of inquiry or a committee of the house and the opposition was not prepared to relent. Then the information minister, who happens to be leader of the house, had felt constrained to resign from the Union cabinet. But a lot of people have been feeling unhappy that the government should have resorted to the expedient of referring the matter to the chief justice of the supreme court, and that he should have agreed to look into it. He is, therefore, fully justified in coming to the conclusion – the Union home minister, Mr HM Patel has conveyed it for him – that whatever his findings the office of the chief justice of India could be dragged into public controversy and that this could adversely affect the prestige of that high office. But his present action and the government’s endorsement of it, or at least acquiescence in it, raise several questions which cannot quietly be set aside.
According to Mr. Patel, the chief justice has said that even if he was to recommend a generally acceptable procedure for inquiry into the charges, he would be functioning essentially as a persona designata and that the members of the public would be free to make assumptions regarding the reasons for his opinion and Parliament to debate it. But this was the position when he agreed to go into the charges in the first instance. This would suggest that he has had second thoughts since. But why? Is it because at that point he did not pay sufficient attention to the implications of his willingness to accept the government’s proposal or because he then allowed himself to be persuaded against his better judgment? Neither conclusion is flattering to the chief justice and it is not easy to think of a more reassuring explanation for the change of mind on his part. This, too, is not the end of the matter.
Rumours that the chief justice was reluctant to examine the charges against Mr. Kanti Desai and some members of Mr. Charan Singh’s family began to float and to be reported in some sections of the press soon after the relevant official announcement. This was made by the Union home minister on February 23. Within three days, on February 26, Mr. Antulay told the Rajya Sabha that in a conversation with him the chief justice had expressed his reluctance to undertake the task. The law minister contradicted Mr. Antulay and claimed that he himself had gone to Mr. Justice Chandrachud, read out the statement the Prime Minister proposed to make and “obtained his consent to look into the proceedings of the house of August 10, 1978, to see if a prima facie case existed.” Events have vindicated Mr. Antulay, though it does not follow that Mr. Shanti Bhushan had misled the house. Apparently there was a gap of some days between Mr. Bhushan’s visit to the chief justice and Mr. Antulay’s conversation with the latter. If that was so, the conversation represented Mr. Justice Chandrachud’s latest thinking which fact was confirmed first by the persistence of reports that he was disinclined to go into the charges and now by Mr. HM Patel’s announcement. Surely then the government owed it to the country to verify the fact on February 26 itself and let the result be known. By the same token the chief justice owed it to himself, his august office and the people to absolve himself publicly of the responsibility if he had come to the conclusion that he had acted without proper consideration of the consequences. We do not know whether or not he conveyed his regrets to the Prime Minister and the law minister soon after February 26 and if he did so, how soon. Perhaps he spoke to one or both of them fairly soon. If that is so, the government has kept the people in the dark all this time – well over two months. Alternatively, Mr. Justice Chandrachud himself kept wavering all this time. Either way the country deserves to know the truth.
Certain objections were raised when the Prime Minister decided to refer the charges in question to the chief justice and the latter agreed to examine them. These fell into two categories – those which questioned the choice of Mr. Justice Chandrachud on the ground that he had compromised himself in the judgment he gave in the habeas corpus case during the emergency and those challenging the propriety of the procedure. It is now pointless to recall objections in the first category which did not appear too convincing even then. But the same cannot be said about objections in the second category. Mr. Charan Singh, for instance, said in his statement in the Lok Sabha on December 22, 1978, that the chief justice would have no authority to compel attendance of any person for being examined as a witness or production of documents. This would be true of Mr. Justice Vaidialingam who is now to take on the job.
The Times of India, 2 May 1979