It
is the first time ever that a Chief Justice of India has granted
permission to an investigating agency to register a criminal case
against members of the higher judiciary. It happened last week when
Chief Justice K G Balakrishnan allowed the CBI to examine two judges of
the Punjab and Haryana High Court, Nirmaljit Kaur and Nirmal Yadav, in
connection with what has come to be known as the cash-for-judge scam.
In
the process, Justice Balakrishnan earned the distinction of becoming
the first CJI to exercise the power conferred on his office 17 years
ago by an apex court verdict in the Justice K Veeraswami case. The
rationale behind this special safeguard was to "protect a judge from
frivolous prosecution and unnecessary harassment".
The
1991 Veeraswami verdict directed that "no criminal case shall be
registered under Section 154 CrPC against a judge or chief justice of
the high court or judge of the Supreme Court unless the Chief Justice
of India is consulted in the matter ... If the Chief Justice is of the
opinion that it is not a fit case for proceeding under the Act, the
case shall not be registered."
On
the face of it, this ruling, which confirmed that judges came under the
ambit of the anti-corruption law, should have paved the way for the
prosecution of recalcitrant ones. If Balakrishnan's permission to
question Justices Kaur and Yadav has turned out to be unprecedented, it
shows that successive CJIs, including himself, have belied the general
expectation that they could be trusted to be objective in exercising
their authority. So much so, that rather than being a safeguard to
protect the independence of the judiciary, the self-assumed power of
sanction became a cover for impunity.
One
glaring example of inaction from the recent past relates to Justice
Jagdish Bhalla who was not only shielded but also promoted as a high
court chief justice despite an application for permission to register
an FIR against him. The application, filed by the committee on judicial
accountability consisting of eminent Supreme Court lawyers, cited a
report from the Uttar Pradesh revenue department stating that a land
mafia embroiled in litigation had sold Justice Bhalla's wife a 7,200 sq
metre plot in Noida for no more than Rs 5 lakh. At the time, the market
value of the plot was Rs 7 crore.
Such
documentary evidence did not, however, stop the Supreme Court collegium
from making an abortive attempt in 2006 to promote Bhalla as chief
justice of the Kerala High Court. Since President Kalam threw a spanner
in the works, the collegium waited for him to retire before making a
fresh recommendation to promote Bhalla, this time as chief justice of
the Himachal Pradesh High Court.
If
the cash-for-judge scam has bucked the trend of denying sanction for
investigation, it is perhaps because of the sheer drama that was
involved in law officer Sanjeev Bansal sending Rs 15 lakh - in hard
cash - to Justice Kaur's official bungalow. The case spiralled out of
control and became very public as Justice Kaur immediately called the
Chandigarh police and handed the money over. What added a comical touch
was Bansal's claim that Justice Kaur had been mistaken for Justice
Yadav as they shared a similar first name. It helped little that Bansal
told the police that he had been asked by an absconding Delhi hotelier,
Ravinder Singh, to send the cash to Justice Yadav in connection with
a property deal.
Whoever
it was meant for, the sleaze money seems to have pushed Justice
Balakrishnan to grant permission within a week of CBI's plea to
question both judges figuring in the Chandigarh transaction. In the
absence of any such cash recovery, the UP police failed to get similar
permission from the CJI for a contemporaneous but even larger case.
This is the Ghaziabad provident fund scam, involving 34 judges all the
way from the Supreme Court to subordinate courts. The scam,
involving
misappropriation of Rs 23 crore from the PF of Class III and Class IV
employees, hinges on the confessional statement of a Ghaziabad court
official, Ashutosh Asthana. He claims that he used that money to buy
expensive gifts for judges.
When
the UP police asked for permission to question the judges named by
Asthana, all that they got from Justice Balakrishnan was clearance to
send questionnaires. This, despite the fact that the Ghaziabad scam
complies with the Veeraswami verdict's precondition - that the
investigation of a judge can only be permitted when a prima facie case
is made out against him. Besides Asthana's confessional statement, the
police were equipped with documentary evidence in the form of vouchers
and delivery receipts.
In
a further concession to the judges figuring in the Ghaziabad scam, the
CJI directed the police to attach the evidence to the questionnaires
they send. In the pre-trial stage of investigation, the police are
normally entitled to subject the accused to oral interrogation without
disclosing the evidence they have already collected. While the outcome
of such a heavily fettered investigation is not yet known, there was a
cheering development in the Ghaziabad case last week.
With
the UP police conceding they were finding it hard to cope with the
sensitive task of investigating local judges, the Supreme Court leaned
on the state government to consider handing the case over to the CBI.
The Mayawati administration promptly obliged and an agency that is
better equipped to deal with the wider ramifications is now set to take
over the case.
In a week
that saw major developments in the judicial corruption cases from
Chandigarh and Ghaziabad, there was an equally significant piece of
news about a third case. In a letter to Prime Minister Manmohan Singh,
the CJI asked for the impeachment of Calcutta High Court judge Soumitra
Sen on the basis of his indictment by an in-house procedure of inquiry.
Law minister H R Bhardwaj announced that the impeachment process would
soon be initiated in Parliament. This is yet again a first, though the
in-house procedure to probe allegations of judicial corruption has
existed since 1997. Never before has a judge been impeached or even
sought to be impeached following inquiry by a committee comprising
three judges from different high courts, two of whom must be chief
justices.
Curiously,
this is also the first time that the in-house procedure has indicted a
judge on the very issue on which he had been given a clean chit by a
high court. Last year, a two-member bench of the Calcutta High Court
expunged the strictures passed by a single judge who had held Justice
Sen guilty of misappropriating the sale proceeds of certain goods.
These had been given to him for safekeeping when Justice Sen had been
the receiver in a high-stakes case in his former avatar as a lawyer.
Though Justice Balakrishnan's letter to the PM mentions Sen's eventual
exoneration by his own high court, it is silent on how the in-house
inquiry came to a different conclusion.
Justice
Sen's case also exposes the link between judicial misconduct and a
flawed system of appointments. It became more secretive after 1993 when
the judiciary appropriated the selection process. When Sen was
appointed to the high court in December 2003, he was already facing
proceedings in the same court on the charge of misappropriation. Which
is why it is strange that the chief justice of the Calcutta High Court
still thought it fit to recommend his appointment. Having read the
CJI's recommendation to impeach Sen, Manmohan Singh hit the nail on the
head when he said last week that the spate of corruption allegations
against judges calls for "introspection" on judicial appointments.
Their Lordships would do well to read the writing on the wall.
Reported: The Times of India @ Page No.15/Date:14-9-08
