The Telegraph
Saturday , July 27 , 2013
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Curtain of hush parts, from within

New Delhi, July 26: Your Honour, your honour is at stake.

Before the contempt claw descends, let it be made clear that it is not we who are pointing fingers. Honourable judges are speaking out on clouds of insinuation, if not direct accusations.

Witness the comments being attributed to the new Chief Justice of India, P. Sathasivam, and his immediate predecessor, Altamas Kabir.

Within days of taking over, a bench headed by Chief Justice Sathasivam was quoted by a newspaper as saying “these orders should never have been passed”. The purported reference was to favourable orders issued by Justice Kabir in a case relating to infrastructure firm Jaiprakash Associates.

The bench was then quoted as saying: “We are clear in our mind about what has happened.”

Justice Kabir, who hails from Calcutta, was swift to respond and he chose the avenue offered by a televised interview. “I have been wrongly indicted by the CJI. I will take some kind of step in the matter. I (am) owe(d) an apology,” he told Karan Thapar on CNN-IBN.

The former Chief Justice then added: “I’m going to take some kind of action if this quote turns out to be true. As soon as I saw the news item in the morning, I spoke to the Chief Justice and he said, ‘I had never said this’. I also asked Justice Gogoi, who is a partner on this bench, and he said: ‘certainly not’. I’ve requested the judges to give it in writing. If necessary, I will take it up with the (newspaper).”

Justice Kabir also defended himself on one of his last rulings before retiring last fortnight — it took away the exclusive right of the Medical Council of India (MCI) to conduct medical entrance tests.

Rarely has a Chief Justice himself spoken out on cases he had handled so soon after retirement. Innuendoes about others were not unusual but they were largely confined to whispers or private conversations.

Three days ago, Justice Kabir issued a formal statement rejecting allegations that he had scuttled Gujarat High Court Justice Bhaskar Bhattacharya’s elevation to the Supreme Court as the latter had opposed the elevation of Justice Kabir’s sister as a Calcutta High Court judge. Justice Kabir also denied a report that he had tried to push the candidature of another high court judge before his term was to end.

Are judges now saying of themselves that many have long believed but were afraid to say? While it ticks off the political executive’s lapses and pushes hard on transparency and probity, might there be reason to swivel the probe lights on the judiciary itself?

Advocate-activist Prashant Bhushan, who has been lobbying for judicial accountability in and outside the courts, says bluntly: “Of course, there is corruption in the judiciary. There is no doubt about it.”

Senior lawyer Rajiv Dutta is inclined to put the higher judiciary above question, though. “In my 35 years of experience, I have never heard any person telling me that any particular judge has taken money. Yes, but we have been hearing rumours, but an order passed by the Supreme Court can be interpreted this way or that way. Maybe, there are factual errors. But the Supreme Court is always there to correct it.”

But anxiety over judicial probity and propriety has continued to mount in the public mind.

Starting from the time of the then Chief Justice Y.K. Sabharwal (2006), all Chief Justices have been accused of corruption, nepotism or favoritism. In Sabharwal’s case, within days of his retirement, the Centre for Public Interest Litigation (CPIL), an NGO, accused him of passing certain orders for sealing unauthorised construction of commercial and residential structures in Delhi to benefit the real estate interests of his relatives.

Then came the turn of his successor K.G. Balakrishnan, who had an enviable three-and-half-year tenure as the CJI. The moment he retired on May 11, 2010, allegations started tumbling about alleged accumulation of massive assets disproportionate to known sources of income.

His successor S.H. Kapadia, entertained a PIL filed by advocate M.L. Sharma who sought a special probe to determine immovable assets allegedly accumulated by Justice Balakrishnan in the names of his relatives.

After seeking information from the government and keeping the matter pending with him for over a year, Justice Kapadia transferred the matter to another bench, which in turn asked the government to examine the allegations.

The government has so far not made its report public on Justice Balakrishnan, who is now the chairperson of the National Human Rights Commission(NHRC). This was the first time in the annals of the Supreme Court of India that a PIL against a former CJI was entertained by his successor.

Kapadia himself was faced with embarrassment last year when the same advocate filed a PIL alleging conflict of interest against the CJI in the Vodafone case. The lawyer contended that the case — which granted a Rs 10,000-crore tax relief to Vodafone — should not have been heard by Kapadia as his son had drafted the due diligence report for Vodafone at the time the telecom giant acquired Hutchison-Essar.

Sharma’s PIL was heard by another bench headed by Justice Aftab Alam (since retired), who dismissed the PIL as being frivolous and saddled the advocate with a penalty of Rs 50,000.

The just-retired Justice Kabir ended his tenure in a slew of controversies. Among them was his alleged role in having his sister, Shukla Kabir Sinha, elevated as a judge of Calcutta High Court despite her crossing 58 years. Kabir has denied any role in his sister’s promotion.

But there were other matters in which Kabir’s role came in for criticism. The Sahara case is one. Although it was finally disposed of by a bench headed by Justice K.S. Radhakrishnan with a stern warning to the Subrata Roy-owned group that it should refund Rs 24,000 crore to investors by November 2012, Kabir had in an earlier ruling granted them time till February 2013 amid protests by several advocates.

Supreme Court Bar Association (SCBA) president M.N. Krishnamani told Justice Kabir that it would be improper for him to hear a matter that was already being heard by another bench.

The latest controversy has left senior counsel Rajiv Dutta upset. “I want the present Chief Justice of India to clarify what he means when he questions a certain order by saying ‘we are clear in our mind about what has happened’. I want him to interpret that order and tell the public what exactly is the order. The reported observation of the Chief Justice astonishes some of us. The judiciary has to take extraordinary measures if there is even an iota of doubt and take up cudgels.”

Bhushan insists that the “growing corruption” in the judiciary needs to be rectified by having a robust independent institution for appointment of judges and also a complaints redress system to entertain complaints against the judiciary.

Bhushan, who is a leading member of the Aam Aadmi Party (AAP), expands the required field of scrutiny to beyond judges. “The Bar from which judges are actually selected is itself busy minting money instead of showing some anxiety for the dwindling standards of the judiciary,” Bhushan told The Telegraph. “The Bar is also compromised. Most of the lawyers today want to make as much money as possible in as much short time as possible. They find it convenient to go with such judges.”

According to Bhushan, the present appointment system of judges should be scrapped and a panel “not under the control of the government or the judiciary” should be created to appoint judges.

A move to end a system whereby judges appoint other judges and can’t be questioned has been in the works with the UPA government. It envisages a judicial commission for appointments that would be headed by the Chief Justice of India and include four senior-most judges of the Supreme Court, the Union law minister, leader of the Opposition in the Lok Sabha and an eminent jurist.

The move has been a non-starter though for want of political consensus. The bill to constitute such a commission needs constitutional amendment which in turn requires the support of two-thirds of members of both Houses of Parliament to vote in its favour.