Haunted by scams, absolute lack of transparency and accountability, and a pronounced anti-poor stance, it's time to open the tightly shut windows of the higher judiciary in India
Prashant Bhushan Delhi
Over the last three years, the Campaign for Judicial Accountability has made giant strides in bringing judicial accountability on the national agenda, and in the media. This has been so on account of several highly publicised scandals which surfaced in the judiciary which we highlighted; this included the lack of any credible mechanism to bring to book judges committing judicial misconduct, and the lack of any transparent and rational system for appointing judges.
The 'Ghaziabad Provident Fund Scam' surfaced almost two years ago when the vigilance judge of the Ghaziabad District Court reported to the high court about how more than Rs 7 crore had been siphoned out of the Ghaziabad treasury by successive district judges of Ghaziabad with the help of an administrative officer of the court, in the guise of provident fund advances to class 3 and 4 employees. The administrative officer of the Ghaziabad Court, Ashutosh Asthana, made a confessional statement to the court that he had done this at the behest of successive judges of the district court and that much of this money had been used for building the houses of the district judges, paying for various items of furniture etc - for them - and for several high court judges as well as a Supreme Court judge.
Initially, the Ghaziabad police was told by the Chief Justice of India (CJI) that they could not directly interrogate high court judges and that they must send only written questions which must be sent through the CJI. Thereafter, the Ghaziabad police expressed helplessness in investigating this case involving a Supreme Court judge, several high court and district court judges. On this, the investigation was transferred to the CBI. Indeed, there is still no information about the progress made by the CBI in the investigation.
The fact is that while several minor employees have been chargesheeted, no judge has been chargesheeted as yet. Besides, Ashutosh Asthana died in jail in highly mysterious circumstances which his family believes is murder.
The Ghaziabad provident fund scam received a lot of publicity. This has strengthened the feeling about rampant corruption in the judiciary and the need to remove the unnecessary restrictions imposed by the Supreme Court through the Veeraswami judgment restraining the police from investigating criminal offences by judges without the prior written permission of the CJI. This permission has almost never been given by the Chief Justice. He is recently reported to have refused permission to the CBI to prosecute Justice Nirmal Yadav of the Punjab and Haryana High Court at Chandigarh by saying that he cannot allow the spectacle of a high court judge being arraigned before a magistrate.
This scandal, known as the 'cash at judges door scandal' arose when a packet containing Rs 15 lakh was delivered by a lawyer's clerk to the security guard of Justice Nirmaljit Kaur of Punjab and High Court. The packet was opened by the guard in the presence of the judge in her living room where reportedly some other judges of that court and a judge of the Supreme Court were also present. The matter was reported to the police and soon the lawyer and his clerk were arrested. During preliminary investigation it transpired that the money was sent by a Delhi hotelier called Ravinder Singh, and was basically meant for another judge in the same court by the name of Nirmal Yadav, but was mistakenly delivered to Nirmaljit Kaur. The investigation was eventually handed over to the CBI.
The case received a great deal of publicity. An in-house inquiry committee of three judges was constituted by the CJI to inquire into the matter. This inquiry committee submitted a report on December 6, 2008 and came to a conclusion that the money was sent by Ravinder Singh for Nirmal Yadav and was probably related to the purchase of land by her along with her relatives in Solan, Himachal Pradesh. The committee found that she had committed various other irregularities, which were serious enough for the CJI to seek her explanation and resignation.
She sent a defiant reply effectively threatening to expose other judges of the high court and Supreme Court. Thereafter, the case has been effectively put in cold storage. The CBI completed its investigation and found her guilty of various offences, including forgery. Curiously, the then Attorney General, Milon Bannerjee, was made to give a cryptic opinion that there was not a shred of evidence against Yadav. The Union law minister told the CBI that he had discussed the matter with the CJI and they felt that the case should be closed. The CBI was thus made to file a closure report before the special judge.
This is how even this highly publicised case of serious misconduct and criminal offences by a sitting judge is being sought to be buried.
While these cases were still festering, the controversy regarding the disclosure of assets of judges arose. It arose out of an innocuous query under the RTI Act, whether judges of the Supreme Court were disclosing their assets to the Chief Justice under a code of conduct framed in 1999 by the judges themselves. The refusal to disclose this information by the Supreme Court by taking various incorrect and inconsistent stands before the Central Information Commission (CIC), and then before the High Court, led to the snowballing of this controversy to a level that the resulting public embarrassment virtually forced the Supreme Court to announce that all the judges would put their assets on the court website; this they eventually did, though not with the desired specificity.
This controversy saw the much ridiculed spectacle of the Supreme Court repeatedly appealing to the high court, and after being rebuffed there, threatening to appeal to themselves.
This episode greatly contributed to the public impression that there were many skeletons in the judicial cupboard which the apex court wanted to hide. It soon became clear that some of these skeletons involved the appointment of judges in the higher judiciary and dealt with complaints against judges. It was reflected in the alacrity with which the Supreme Court moved to appeal directly to itself against other orders of the CIC, ordering the court to disclose information about appointment of some Supreme Court judges by superceding senior judges - who enjoyed excellent reputations.
Meanwhile came the news that the Supreme Court collegium has recommended Justice PD Dinakaran, the Chief Justice of Karnataka, for elevation to the Supreme Court. Soon after, a group of highly respected and responsible lawyers from Chennai under the Forum for Judicial Accountablity sent a series of representations to the collegium and the government detailing several damaging allegations against him. These included, acquiring 350 acres of agricultural land and encroaching on more than hundred acres of public land; acquiring properties benami and far beyond his known sources of income; hearing and deciding cases of his friends, etc.
All the allegations were backed by unimpeachable documentary evidence.
Though the Chief Justice of India continued to back him, he ordered an inquiry into the allegation regarding his agricultural land by the district magistrate, who confirmed the allegations, including his encroachment of public land. Thereafter, Justice Dinakaran tried to destroy evidence and threatened the revenue officials who went to stop this destruction of evidence.
All this was widely reported in the media. An embarrassed Prime Minister's Office forced a reluctant Union Law Minister, Veerappa Moily, to return the recommendation to the collegium for reconsideration. The collegium did not withdraw the recommendation, but merely put it on hold. No 'in-house inquiry' was ordered either.
It was questioned as to how Justice Dinakaran could continue as Chief Justice of Karnataka in the light of such serious offences that he had committed. There was also the demand that FIRs should be registered and the offences that he had committed be investigated. The Chief Justice of India, however, did not give permission for registering any FIR against Justice Dinakaran. This left no option but to initiate impeachment proceedings against him.
The Forum for Judicial Accountability prepared the impeachment motion which was sent to all political parties - a campaign for signatures. Eventually, 75 MPs of the Rajya Sabha belonging to many political parties - except the Congress - signed the impeachment motion and presented it to Vice President Hamid Ansari. The motion was admitted by the vice president, forcing Justice Dinakaran to stop discharging his judicial functions.
The procedure laid down by the Judges Inquiry Act for proceeding with the impeachment motion is that the vice president must appoint an enquiry committee consisting of a sitting judge of the Supreme Court, a Chief Justice of a High Court and a jurist to enquire into the charges. Only if the enquiry committee finds him guilty does the matter proceed further for a vote in the two houses of Parliament. The motion for his removal has to be then passed by a two-third majority in each house. Only then can he be removed.
Though there is no requirement under the Judges Inquiry Act for the vice president to consult the Chief Justice in the choice of members of the enquiry committee, he consulted the Chief Justice, who recommended two judges of the Supreme Court and two Chief Justices of the High Court. Based on the CJI's advice, the vice president has appointed an inquiry committee comprising Justice VS Sirupurkar of the Supreme Court, Chief Justice AR Dave of the AP High Court and PP Rao as jurist.
Our campaign as well as the Forum for Judicial Accountability have written to the vice president pointing out that Justice Sirupurkar has not only been a close friend and colleague of Justice Dinakaran, but he has also prejudged the issue, telling several responsible lawyers that he knows Justice Dinakaran well and that he is an independently wealthy and honourable man. PP Rao had been formally consulted by Justice Dinakaran on how he should deal with these charges and he had advised him. In these circumstances, they would not be seen to be impartial and therefore should not sit as judges on this inquiry committee to avoid damage to the credibility of the inquiry and further controversy. However, till the date of writing, they have not yet recused themselves.
These scandals have not only brought the neglected issue of judicial accountability centre-stage, but have also brought the focus on judicial appointments, complaints against judges and transparency in the judiciary. There is virtually universal acknowledgement that the present system of appointments and dealing with complaints are unsatisfactory and needs to be comprehensively overhauled. The government has been forced to acknowledge this and has promised to bring a comprehensive bill on judicial accountability. However, the bill falls far short of what is required. It only tinkers with the system by effectively giving statutory status to the in-house procedure - which has been evolved by the judiciary itself.
What we need is an independent, full time constitutional body which must be set up and empowered to deal with complaints against judges and take action, including removal of judges with wrong conduct. Similarly, we need an independent, full time, constitutional body for the appointment of judges.
Another serious problem is the judiciary's increasingly elitist and anti-poor ideology. Its prevailing attitude is completely against the letter and spirit of the Constitution. This has resulted in the judiciary trampling on the rights of the poor to live with dignity (Article 21: the right to life and liberty). The constitutional validity of patently draconian laws like POTA, TADA and the Armed Forces Special Powers Act, which have primarily been used by the State to harass, detain, imprison, persecute and hound the poor, innocents and minorities, have been upheld; and laws to protect the rights of innocents like the Illegal Migrants (Determination by Tribunals) Act have been struck down allowing the police unbridled powers to incarcerate and throw out anyone from the country without even the benefit of determination of their nationality by any judicial body.
Laws to protect the rights of workers, enacted and interpreted in the 1970s and 1980s, have been systematically dismantled. The shelters of lakhs of jhuggi dwellers have been callously ordered to be demolished leaving them on the streets. In many cases, laws and executive acts which are in violation of directive principles and fundamental rights have been upheld by the courts which have begun to behave like instruments of big corporations.
In these circumstances, it has become urgent and imperative, not only to put in place proper systems of accountability, but proper systems of selection of judges which will ensure that only those persons come to be appointed who are in tune with India's secular, egalitarian, constitutional philosophy, and who have some sensitivity and understanding of the problems of millions of common people of the country.
There is enormous ferment around these issues. There is an unprecedented assault by the State on the rights of the poor, including a war on tribals, in order to facilitate the corporate loot of natural resources. This is also the era of many spirited movements resisting this assault. The time is ripe to expand this resistance and bring it to bear on the judiciary which is a critical institution in this epical battle between the people and predatory corporations, backed by the Indian State and big business.
The writer is an eminent public interest lawyer in the Supreme Court of India