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From Tehelka Magazine, Vol 7, Issue 39, Dated October 02, 2010

CURRENT AFFAIRS CORRUPTION

Chief Injustices.

Excerpts from a milestone affidavit


RUDIMENTARY LOGIC demands that the highest chairs must have the soundest legs. By that
measure, judges ought to have impeccable moral character. But in India, judges are protected less by
their sterling reputations than by an arcane law: the “contempt of court” act, which prohibits raising
any questions about judges or their actions. This has reduced talk of judicial corruption to a sullen
whisper rather than a democratic debate.

Supreme Court lawyer Prashant Bhushan has fought this unhealthy immunity for 20 years. In
September 2009, partly as a result of his relentless campaigns, the judiciary finally agreed to declare
their financial assets. It was a big first step. Much remained to be done. Soon after, in an interview
with TEHELKA, Bhushan outlined other mechanisms needed to make judges more accountable and
spoke of various forms of judicial corruption. Among other things, he asserted that “half of the last 16
Chief Justices have been corrupt.”

Based on this interview, lawyer Harish Salve slapped a contempt of court case against Bhushan and
TEHELKA editor Tarun J Tejpal. At first Bhushan argued his right as a citizen to voice his perceptions.
But the court insisted on pursuing the matter further, saying the ramifications of the case for the
credibility of the Supreme Court were far greater than those that had been under consideration in
either “Duda’s case or Bal Thackeray’s case”. (The former had called the Supreme Court a haven of
FERA violators, bride-burners and racketeers; the latter had said, “I piss on the Supreme Court.”)

Pushed to demonstrate that his views were not just reckless assertions, Bhushan has now filed a
supplementary affidavit with evidence backing his statement about corrupt judges. In the affidavit,
Bhushan reiterates the difficulty in getting documentary evidence of corruption in the higher judiciary
because no investigation is allowed against judges, there is no disciplinary authority one can turn to,
and even FIRs require prior permission from the Chief Justice of India.

Despite this, his affidavit casts chilling light on the apparent misconduct of many judges. A week
earlier, in a historic move, constitutionalist and former law minister Shanti Bhushan also filed an
affidavit, seeking to implead himself in the case. Like his son, he asserted eight out of the last 16
Chief Justices have been corrupt and submitted their names in a sealed envelope to the bench. He
would consider it a “great honour”, he said, “to spend time in jail for making an effort to get for the
people of India an honest and clean judiciary.”

Truth, in India, has only recently become defence. But if the court pursues these courageous affidavits
and tasks the Bhushans to prove their allegations with evidence, it could become a unique moment in
history. Retired justice VR Krishna Iyer has already said this is a historic opportunity for public
cleansing. The first step is to share information in public interest. Here, therefore, are edited excerpts
from Prashant Bhushan’s affidavit.

1. RANGANATH MISHRA (25.09.1990 - 24.11.1991)


CHIEF JUSTICE Ranganath Mishra as a judge of the Supreme Court presided over a Commission of
Inquiry on the genocide of Sikhs in 1984. He conducted the inquiry proceedings in a highly biased
manner and went on to give a clean chit to the Congress party, despite there being considerable
evidence implicating senior leaders of the party.

The evidence against the Congress leaders and party has come out in
After conducting subsequent official inquiry reports as well as in the subsequent CBI
inquiries into the investigations.
1984 riots, he
became a He went on, after his retirement, to agree to become a Rajya Sabha MP
Congress Rajya of the Congress. Such actions, to my mind, clearly smack of corruption.
Sabha MP Corruption, as I have mentioned earlier, is not used in a narrow sense of
taking bribe alone, but in a wider sense of being morally culpable or
blameworthy

2. KN SINGH (25.11.1991 - 12.12.1991)


CHIEF JUSTICE KN Singh who followed Justice Rangnath Mishra, passed a series of unusually
benevolent orders in favour of Jain Exports and its sister concern Jain Shudh Vanaspati. Several of
these were passed during his 18-day tenure as Chief Justice, and many of these cases were ordered
to be listed before him by oral mentioning.

This became such a talked about scandal in the corridors of the Court that eventually in a hearing on
9 December 1991, the counsel for the Union of India was forced to object to the manner in which the
cases came to be listed before Justice KN Singh’s bench. He was forced to give a laboured
explanation about how and why he ordered the matter to be listed before him when it was before
another bench.

All these judgments came to be reviewed and reversed later by a series of subsequent benches, in
some of which, the review petitions were heard in open court, in a departure from the normal
procedure.

On 1 April 1991 and 9 September 1991, Justice KN Singh allowed two


Passed a series of Civil Appeals of Jain Exports regarding the import of caustic soda and
orders in favour of reduced the import duty payable by the company from 92 percent to 10
Jain Shudh percent. Both these orders were subsequently reviewed and set aside.
Vanaspati. These
were later set On 28 November 1991, (during his 18 day tenure as CJI) Justice Singh
aside dismissed the appeal of Union of India against Jain Shudh Vanaspati in a
case involving the import of edible oil in stainless steel containers (the
import of which was banned), which were fraudulently painted over to disguise them as mild steel
containers. This order was reviewed and set aside on 16 July 1993 by a bench of Justice JS Verma
and PB Sawant.

All these orders of Justice KN Singh in the Jain Exports and Jain Shudh Vanaspati cases were widely
understood and regarded as having been passed for corrupt considerations. They became a much
talked about scandal in the Court, even while he was Chief Justice.
3. AM AHMADI (25.10.1994 - 24.03.1997)
CHIEF JUSTICE AM Ahmadi, who succeeded Justice Venkatachalaiah (who was widely respected
and regarded as a judge of great integrity), went on to quash the charge of culpable homicide in the
criminal case arising out of the Bhopal Gas leak. Seven benches were changed during the hearing of
this case, the only common judge in all these benches was Justice Ahmadi who was Chief Justice
and constituting the benches.

This judgment of quashing the charge of culpable homicide before the trial not only delayed the trial
but led to such miscarriage of justice, that the Supreme Court has thought it fit to issue notice on a
curative petition filed by the CBI even 14 years after that judgment.

Justice Ahmadi then went on to deal with and pass several orders in the Union Carbide case involving
the setting up of a hospital from the sale proceeds of Union Carbide India Limited’s shares held by
Union Carbide Corporation, USA.

In fact, he passed the orders releasing the amount of Rs. 187 crore for the construction of the hospital
from the attached funds of Union Carbide. Quite remarkably, after having dealt with these cases of
Union Carbide, Justice Ahmadi (soon after his retirement) went on to become the lifetime Chairman of
the same hospital trust whose case he had extensively dealt with as Chief Justice.

A Supreme Court bench headed by Justice Kuldip Singh had, on 10 May 1996, passed an order
staying all construction within 5 km of Badkal and Surajkund lakes in Faridabad for environmental
reasons. This order prevented any construction in plots in a development called Kant Enclave, which
is adjoining Surajkund lake and on land which had been notified as Forest Land under S4 of the
Punjab Land Preservation Act.

Being forest land, no construction was permissible on this land without the prior permission of the
Union Ministry of Environment and Forests, and also without the permission of the Supreme Court by
virtue of the orders of the Court in the Godavarman case.

Despite this, however, Justice Ahmadi, who was as this time the Chief Justice of the Court, went on to
purchase plots in this development around this time and also went on thereafter to construct one of
the first houses on this (a palatial house where he has lived since his retirement) in violation of the
orders of the Court and the Forest Conservation Act.

Soon after the original order of Justice Kuldip Singh, Justice Ahmadi as
He bought land, Chief Justice set about reconstituting these benches and urgently listing
built a house in review petitions filed by Kant Enclave and others against these orders,
Kant Enclave in where these orders came to be successively modified.
Surajkund. The
court had ruled it The order prohibiting construction within 5 km of the lakes was modified
illegal to 1 km by the order dated 11 October 1996. This order was further
modified in the review petitions filed by Kant Enclave and others by order
dated 17 March 1997, to obviate the need to no-objection certificates from the Pollution Control
Boards for construction. This was further modified by even allowing construction even within 1 km of
Surajkund lake by an order dated 13 April 1998 by a bench headed by the then Chief Justice MM
Punchhi.
The fact that the construction of Justice Ahmadi’s house in Kant Enclave is completely illegal and in
violation of the Supreme Court’s judgments, as well as the Forest Conservation Act, has now been
emphatically stated by the Supreme Court itself in its order dated 14 May 2008 on the clarification
application on behalf of Kant Enclave.

The Centrally Empowered Committee of the Court has found the violations of those who constructed
their houses in Kant Enclave so egregious, that they have recommended the demolition of these
constructions which includes that of Justice Ahmadi in their report dated 13 January 2009. I regard
Justice Ahmadi’s actions in all this as morally culpable and indeed corrupt. They had become a much
talked about scandal in the corridors of the court as well as among judges at that time.

4. MM PUNCHHI (18.01.1998 - 09.10.1998)


JUSTICE PUNCHHI had a short tenure of 10 months. He succeeded Justice Verma, who is widely
regarded as one of the finest and most upright Chief Justices of the Supreme Court. The Committee
on Judicial Accountability had prepared an impeachment motion against Justice Punchhi, which had
been signed by more than 25 members of the Rajya Sabha, but did not get the requisite number of
signatures since he went on to become Chief Justice of India. The six extremely serious charges in
the impeachment motion are detailed below:

1. As a Judge of the Supreme Court, while deciding an appeal of Shri KN Tapuria against a judgment
of the Bombay High Court, dated 10.12.93 by which he was sentenced to two years rigorous
imprisonment, Justice Punchhi allowed the Appeal and acquitted Shri Tapuria on the basis of a
purported compromise entered into between Shri Tapuria and the alleged representative of M/s
Turner Morrison & Co, and thereby remitted his prison sentence. This was done despite the fact that
the offence of criminal breach of trust for which Shri Tapuria had been convicted cannot be
compounded in law and thus could not have been allowed to be compromised by the complainant.
The order passed by Justice Punchhi was on extraneous considerations.

2. As a Judge of the Punjab & Haryana High Court, Justice Punchhi heard and dismissed a Writ
Petition of the Vice Chancellor of the Rohtak University, Dr Ram Gopal, containing serious allegations
of malafides against the then Chief Minister of Haryana Bhajan Lal. That while he decided this case
dismissing allegations against Bhajan Lal, two of his unmarried daughters residing with him, Madhu
and Priya, applied for and got allotment of two valuable house plots in Gurgaon from the discretionary
quota of the Chief Minister. The plots were allotted on 1.5.86, the same day Justice Punchhi
dismissed Ram Gopal's Writ Petition against Bhajan Lal. The judgment of Justice Punchhi dismissing
the Writ Petition was obviously given on extraneous considerations.

3. As Inspecting Judge of the Punjab & Haryana High Court, Justice Punchhi made an adverse
inspection report questioning his integrity, against KS Bhullar, Sub-Judge-cum- Judicial Magistrate of
Punjab, for the reason that Bhullar had refused to decide a case before him involving Justice
Punchhi’s co-brother in his favour.

4. As a Judge of the Supreme Court, Justice Punchhi attempted to hear and decide a case involving
the validity of section 8 (a) of the Capital of Punjab (Development and Regulation) Act, 1952 though
he was personally interested in the outcome of the case.

He decided on a case about a law when he was personally


interested in the outcome
5. That Justice Punchhi attempted to browbeat officials of the Registry of the Punjab & Haryana High
Court when they came to take inventory of items of furniture at the residence of the then Chief Justice
of the Punjab & Haryana High Court, Justice V Ramaswami. He ordered them to mention in the
inventory report that all the items had been found in order even when these had not been verified and
this was not true. Thereafter, when this matter became subject of the impeachment proceedings and
was put in issue in Writ Petitions filed in the Supreme Court, Justice Punchhi attempted to hear and
decide that case, though in view of his role in the matter, he was clearly disentitled from doing so.

6. That as Judge of the Supreme Court, Justice Punchhi, kept pending with him a matrimonial
proceeding involving one Ashok and Rupa Hurra from Gujarat, even after it had become infructuous.
The matter was kept pending in order that a fresh petition to be filed by the husband also come before
him. These proceedings were finally decided by him for extraneous considerations in a manner which
was contrary to law.

5. AS ANAND (10.10.1998 - 01.11.2001)


JUSTICE ANAND, who succeeded Justice Punchhi, too enjoyed a very controversial tenure as Chief
Justice of India. During his tenure, evidence of several acts of very serious misconduct came to light
and came to the possession of the Committee on Judicial Accountability. As a result of this, an
impeachment motion was also prepared by the Committee on Judicial Accountability against Justice
Anand, which contained four serious charges which are detailed below:

1. That AS Anand, when he was the Chief Justice of the High Court at J&K, heard and passed
favourable interim orders in the case of one Krishan Kumar Amla, soon after he had accepted
gratification from Amla in the form of a 2 Kanal plot of land at Ganderbal, Srinagar. That Anand
accepted this gratification from Amla even though he had been as a judge hearing and dealing with
the cases of the companies owned by Krishan Amla and his father Tirath Ram Amla. These acts
constitute gross misconduct and misbehaviour on the part of a Judge.

2. That AS Anand abused his office and influence as a judge and Chief Justice of the J&K High Court
to hold on to the ownership of agricultural land which should have been vested in the government
under the J&K Agrarian Reforms Act of 1976.

3. That AS Anand while he was a judge of the Supreme Court abetted his
He passed an wife and mother-in-law in filing a suit based on false averments in a civil
order favouring a court in Madhya Pradesh. During the proceedings before the civil court,
person from whom he abused his influence and authority to get the revenue authorities to
he had received a suppress from the trial court the record of the proceedings before the
plot of land revenue court. That he subsequently used his influence to get the State
Government of MP to withdraw the Special Leave Petition filed by the
State against his wife.

4. That Anand abused his office and influence as Chief Justice of the J&K High Court to get from the
government of J&K a 2-kanal plot of land at Gandhinagar in Jammu for a price which was a small
fraction of the market price. That in doing so, he gave a false and misleading affidavit that he owned
no land or immovable property in Jammu.
Despite the fact that there was documentary evidence of serious charges of corruption against Justice
Anand it was not possible to get the impeachment motion signed by the requisite number of MPs
against a sitting Chief Justice of the Supreme Court. MPs are very reluctant to sign an impeachment
motion against a sitting judge of the Supreme Court or a sitting Chief Justice of a High Court, even if
one has documentary evidence of serious charges of misconduct against the judge concerned. This is
because of a fear of judicial backlash against the MP or his political party, most of whom have cases
pending in the courts.

6. YK SABHARWAL (O1.11.2005 - 14.01.2007)


ON 3 AUGUST 2007, the Campaign for Judicial Accountability had issued a press release detailing
several serious charges against Chief Justice YK Sabharwal. The most serious among these charges
was that he passed a series of orders for sealing commercial properties in Delhi, operating in
residential areas.

The immediate consequence of his orders was to force shops and offices to shift to shopping malls
and commercial complexes being constructed by builders and developers, which resulted in
increasing their prices enormously almost overnight. At precisely the time when Justice Sabharwal
passed these orders of sealing, his sons entered into partnerships with some of the largest shopping
mall and commercial complex developers and thus made huge profits. Moreover, the registered
offices of his sons’ companies were at the official residence of Justice Sabharwal at this time.

Apart from this, his sons were allotted huge commercial plots by the
While he heard the Mulayam Singh government of Uttar Pradesh in Noida at highly
Amar Singh tapes concessional rates, at a time when Justice Sabharwal was dealing with
case, his sons got the case of Amar Singh’s tapes, the publication of which he had stayed.
land allotments in
Noida As a result of these transactions, the sons of Justice Sabharwal, who till
he started dealing with the sealing case, were small traders having a
turnover of less than Rs. 2 crore went on to purchase a property of Rs. 15.43 crore in Maharani Bagh
in March 2007 and more recently a property at 7 Sikandra Road for Rs. 122 crore (in partnership with
their builder friends) in April 2010.

The property at Sikandra Road was purchased by Justice Sabharwal’s sons for Rs.122 crore with the
help of a number of unconscionable judicial orders of single judges of the Delhi High Court, at a time
when the property was worth well over Rs.150 crore.

Despite complaints to the CBI and the CVC, however, no FIR appears to have been registered nor
any investigation done by the CBI.
Conversation with Prashant Bhushan
Bar & Bench News Network
Oct 25, 2010

B&B: Have you personally experienced corruption in the judiciary?


PB: I have not personally experienced corruption. I don’t think I have ever
been asked for a bribe by any judge, but since I have been involved in this
campaign for Judicial Accountability or the Committee for Judicial Accountability for many years
therefore I get a lot of complaints and documents which provide evidence, against judges and a lot of
information about corruption or misdemeanor by judges which I have had the opportunity of going
through. In that sense I have secondary experience of corruption.
B&B: What are your thoughts on the rule of not having been able to register a FIR against a
judge, without the permission of the CJI?
PB: We have found from experience, that this too has had the effect of virtually stifling any criminal
investigation of judges, even when there is prima facie evidence of corruption. In the Provident Fund
Scam which involved several judges out of whom some have become High Court judges too, the
investigating agency had to seek permission from the Chief Justice of India, even though the FIR had
been registered by the High Court itself. In the first instance the permission was only granted to send
the judge’s written questions which asked them to send back written answers. Even oral interrogation
was not permitted. We have ourselves complained against several judges and sought permission to
register a FIR against them, but permission was never granted.
B&B: What do you think of the Contempt of Court Act? Any changes needed?
PB: Yes, I think that the definition of criminal contempt needs to be amended and the clause which
says scandalizing the court or lowering the authority of the court needs to be deleted from the
definition of criminal contempt. Reason being, this clause has been used to deter and stifle public
exposure of corruption in the judiciary. It has been used to effectively gag the press against exposing
corruption in the judiciary. In any case the reputation of the judiciary or judges does not depend on
whether this gag is there or not, reputation depends upon how they are perceived and how their
behavior is perceived by the people. If a judge is corrupt, generally the reputation travels.
If a person makes a completely wild allegation against a judge, people can see it’s a wild allegation.
Only allegations which are made with evidence are believed by the people or when allegations are
made by people who enjoy a great deal of credibility. This is the way it should be. Reputation cannot
be protected by preventing people from speaking out openly.
B&B: In what manner does your second affidavit differ from the one you had filed previously?
PB: In my first affidavit I had not given the evidence that I had regarding corruption of some of these
Chief Justices and that was because I had thought that it was not necessary, as it would further
embarrass the court. But I had mentioned in my view, half of the last 16 -17 Chief Justices were
corrupt, I was merely voicing my perception. It was based on some documentary evidence, oral
evidence and some circumstantial evidence and for this kind of voicing of one’s perception about the
level of corruption in the judiciary or at the apex of the judiciary, one should not come to providing
evidence to prove that. But when they passed the order of July, in which they said that contempt is far
more serious than even with the likes of Bal Thackeray or Shiv Shanker. Then I thought that maybe
they are under the impression that I had made a reckless, baseless and malafide statement and in
order to dispel any such impression, I should now provide some of the evidence that I have regarding
corruption of former Chief Justices, which I have done in my second affidavit.
B&B: What do you comprehend will be the outcome of your contempt proceedings and at the
same time apex court clearing its name?
PB: It’s very difficult to say what the outcome will be and I don’t know how they will proceed with this
difficult case. I don’t think they will be able to clear the name of the apex court, in the sense that
whatever evidence I have provided against six of these former Chief Justices cannot be erased or
wished away. Irrespective of what the apex court does, the fact is that those facts are now in the open
and it is for the people to draw their own conclusions by looking at those facts as to whether they
regard this evidence as strong and adequate evidence of corruption by those judges.
B&B: Do you think the Judicial Standards and Accountability Bill will make a difference?
PB: I don’t think it will make any substantial difference because the oversight committee is not really
going to be able to function credibly as it comprises of mostly sitting judges or sitting Attorney General
etc. They will not have the time to go into the allegations or corruption by judges. What we really need
is a ful- time body which is independent of both the judiciary and the Government. We can’t have
sitting judges or an Attorney General who is not independent from the judiciary or the Government.
Therefore we are suggesting an independent and credible full-time body called the National Judicial
Commission. We need to change the procedure of removal as currently the procedure goes through
impeachment, the Parliament etc. Even in this Judicial Standards and Accountability Bill it will
eventually still have to go through the procedure of impeachment. We are suggesting a constitutional
amendment to suggest a full-time body which has the disciplinary powers over the judges of the
higher judiciary.
This Judicial Accountability Bill also provides that when there is a vexatious complaint, one can be
sent to jail. With this kind of a provision, even honest complainants will be afraid to file a complaint
because who knows if there are two sitting judges and if the judges happen to be a good friend of the
judge concerned against whom the complaint is made, they might persuade the oversight body to
hold that this is a vexatious complaint and impose heavy penalty on the complainant.
B&B: Your thoughts on the present Chief Justice of India?
PB: The present CJI is regarded as a very honest and having great financial credibility and I have no
reason to think or doubt that perception. However I have mentioned in my affidavit regarding the order
that he passed in the ‘Vedanta’ case and I felt and still feel that those orders were unconscionable. I
feel he ought to have not dealt with this case, having his shares and the explanation that has been
given on his behalf for having dealt with that case is not really proper or correct explanation.
Therefore, I have certainly faulted him for that.
B&B: Your thoughts the cash-at-door scam with Justice Nirmal Yadav and on Justice
Dinakaran’s probe?
PB: In Justice Nirmal’s case I believe initially the prosecution sanction was denied to the CBI, but
finally it was given. But we still don’t know what the current situation is, or what the CBI has said in its
report. Unfortunately, these things are shrouded in secrecy and people don’t even come to know
what’s really happened. There was a Judges Committee which indicted Nirmal Yadav and it was also
said, that the CBI has also indicted her and then some sanction was denied. Nothing is clear as to
what had happened. Therefore we have been pleading for more transparency and ideally we need an
investigating agency which is not under the Government. The CBI is also under the Government. We
need investigating judges who are under the Judicial Performance Commission or Judicial Complaints
Commission.
Regarding Justice Dinakaran, the charges against him are so strong and so well documented that by
now the Enquiry Committee should have finalized its report and indicted him. Unfortunately, ten
months were wasted because the Chairman of that Committee happened to be a close friend of his,
who did not even frame charges against him (for ten months). Now he has recused himself and a new
Committee has come, let’s hope they will deal with the matter expeditiously.
B&B: What made you decide on taking up law as a career?
PB: That’s a long story. I completed my law and afterwards in-between went to Princeton to do a
Ph.D in Philosophy of Science and at that point of time I had every intention of becoming an academic
philosopher, but I somehow got disillusioned with Philosophy and the way philosophy was dealt with
and the manner in which people were thinking about philosophical issues so I returned to law. I got
intense exposure during Mrs. Gandhi’s elections case which was essentially in 1975 and I had heard
the arguments in the Allahabad High Court and the Supreme Court. I wrote a book about it which was
published in 1977, while I was still a first year student of law. Also, I had attended the hearings in the
Habeas Corpus case during the Emergency. I had fairly had an intense exposure to law also because
of the fact that my father was a lawyer. I found that law was interesting, but at that point of time I
found Philosophy and Physics more interesting and that’s what made me pursue my Ph.D, but came
back after two and a half years and joined the profession.
Fairly earlier on also, I had started getting interested in public interest issues and wanted to focus
more there, than normal disputes which I didn’t find any interest in and it was quite frustrating as they
hardly ever get decided.
B&B: What inspirational lessons have you learned from your father?
PB: Yes, The ability to think from first principles i.e. to analyse every issue and problem from the
fundamentals and I think that’s the most important lesson that I have learnt from my father. The other
thing about my father which has inspired me is his integrity and his remaining steadfast on his
principle. These are the most important lessons and one should stay true to your values and
principles, because then you are hardly ever likely to get into trouble.
B&B: What is your next plan of action?
PB: I live from day to day and week to week, but we are setting up an institute in Palampur which is
for educating young people on public policies and we hope to educate some of the new generation of
young activists, who will spend their time engaging with the Government and with civil society to
pansteer public policies of the country which are not towards public interest.
Unfortunately, public policies in India are largely influenced by and run by corporations with
commercial vested interests and most of these are not in public interest. One of the reasons why this
happens is because those with commercial vested interests, atleast understand the issues and they
have a strong motivation to steer those in their own commercial interest. And on the other side there
is hardly anybody who understands the issues as well or as deeply and also who is as motivated,
purely from public interest. It’s the main reason why public policies are held hostage to commercial
vested interests. In order to break that hold, we need to create a cadre of young activists who are
motivated only by public interest and who have the energy and time to engage with all stakeholders
and the policy issues.