JUDICIAL PERFIDIES-10

 

In any case before a judge, there are two parties, the petitioner and the respondent or the prosecutor and the defendant. And both parties will have their own facts, laws, rules and case laws in support of their cases. So a judge has a lot of discretion, and the onerous responsibility that goes with it, to come to a fair decision. And like all human qualities, discretion comes with ease and responsibility poses a burden. Under the circumstances, it would have been only logical to ensure systemic checks to ensure that discretions are not misused and responsibility is carried scrupulously. Unfortunately, as we have seen, our Constitution has not only failed to do it, it has gone overboard to protect those who could misuse such discretion due to various reasons, including corruption. At least whenever I see decisions that do not appeal to my sense of logic and fairness, I always suspect corruption.

 

Let me present the case of Capt Satish Sharma , who had been mired in controversies during his tenure as the Minister for Petroleum in the Union Cabinet, between 1993 and 1996.

 

One of the scams, fairly well reported, was the petrol pump allotment scam. Here is the scam in the words of three apex court judgments…

 

2 judge bench in Common Cause A Regd Society  Vs. Union of India and Ors, on 25/09/96:

This Court in The Centre for Public Interest Litigation case (supra) has endorsed the guidelines submitted by the Attorney General for allotment of petrol pumps, gas agencies etc. The Court in that case did not have before it the actual manner of exercise of discretion by the Minister in the allotment of pups/agencies. The allotment orders which are now before the Court clearly indicate that leaving the authorities to enjoy absolute discretion even within the guidelines would inevitably lead to gross violation of the constitutional norms when the persons for allotment are picked up arbitrarily and discriminatory.

We, therefore, hold and direct as under:

1. The orders - reproduced in earlier part of this judgment - allotting petrol pumps to the above mentioned fifteen persons are hereby quashed.

2. The allocation, allotment of the petrol pumps/retail outlet dealerships by the Government of India, Indian Oil Corporation Ltd. or any other corporation in names of the above said fifteen persons shall stand cancelled with immediate effect.

Above bench, on 04/11/1996:

The petrol pumps - public property - have been doled out in a wholly arbitrary manner." ..... "All these allotments are wholly arbitrary nepotistic and are motivated by extraneous consideration."

 “…we direct Capt. Satish Sharma to pay a sum of Rs. 50 lac as exemplary damages to the Government Exchequer. Since the property with which Capt. Sharma was dealing was public property, the Government which is "by the people" has to be compensated.”

3 judge bench in Common Cause A Regd Society  Vs. Union of India and Ors, on 03/08/1999:

"Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality."

We have already held above that in the judgment under review, there are errors apparent on the face of the record, which has resulted in serious miscarriage of justice. It is for this reason only that we have proceeded to exercise the power of review.

For the reasons stated above, the application for Review is allowed. The direction for payment of Rs.50 lakhs as exemplary damages as also the direction for a case being registered by the C.B.I. against the petitioner for Criminal Breach of Trust and investigation by them into that offence and the further direction to investigate whether petitioner has committed any other offence are recalled. The amount of Rs.50 lakhs, if paid or deposited by the petitioner with the Union of India, shall be refunded to him. All applications for impleadment or intervention filed on behalf of allottees are rejected.

 

Now, here are some reports from the media.

 

A report in India Today (‘Ex-petroleum minister Satish Sharma and his beneficiaries come under CBI scrutiny’, April 15, 1997, updated April 26, 2013; https://www.indiatoday.in/magazine/nation/story/19970415-ex-petroleum-minister-satish-sharma-and-his-beneficiaries-come-under-cbi-scrutiny-831260-1997-04-15) states:

When captain Satish Sharma ruled the Petroleum Ministry, a joke in the corridors of Shastri Bhavan, where the ministry is housed, had it that an allotment letter for a petrol agency was easier to obtain than a ration card. All that was required was the right connection.

At times the allotment letter was just a phone call away. And depending on the "weight" of the recommendation, Sharma would favour his visitors with a petroleum dealership, a cooking gas agency, or a kerosene oil depot.

But the good Captain's benevolence boomeranged last November when the Supreme Court, acting on a public-interest petition, cancelled 15 such allotments, terming them mala fide. It also slapped a Rs 50 lakh fine on Sharma for behaving "as if he was a king and the petrol pumps his personal property".

Ministry officials point out that Sharma may not have got "cuts" for these allotments, most of which were doles meant to placate party-men, including dozens of Congress workers from his constituency Amethi, and Andhra Pradesh, Rao's home state.

What however is known to everyone in the Petroleum Ministry is that the "going rate" for a petrol dealership was anywhere between Rs 20 and Rs 30 lakh, depending on the location.

 

Another report ‘Capt. Satish Sharma discharged in petrol pump cases’ dated Nov 22, 2005 at https://zeenews.india.com/news/nation/capt-satish-sharma-discharged-in-petrol-pump-cases_257505.html informed the readers that The investigating agency had filed the closure report in the cases against Sharma, who was Union Minister of Petroleum and Natural Gas between 1993 and 1996, as the Home Minister refused sanction for his prosecution. Also, The court, however, said the cases against the other 14 accused would continue and asked the CBI to file an investigation report at the earliest.

 

Relevant extract of a third report ‘SC reviews decision to fine ex-Petroleum minister’ dated Jan 21, 2007 at https://www.hindustantimes.com/india/sc-reviews-decision-to-fine-ex-petroleum-minister/story-4dew3bZLkiiE9whP2i93QJ.html is as given below (emphasis added):

 

Over seven years after recalling its order to former Petroleum Minister Capt Satish Sharma to pay a fine of Rs 50 lakh as fine in the petrol pump allotment scam, the Supreme Court now finds 'considerable force' in arguments against its decision.

The issue was raised in a petition filed by one Vikram Dhillon who claimed a compensation of Rs 10.5 lakh for being 'wrongfully' denied admission in a Medical College in Haryana.

Though the court dismissed his petition but during the course of arguments, a Bench of Chief Justice YK Sabharwal (since retired), Justice CK Thakker and Justice RV Raveendran had an occasion to reflect on Capt Satish Sharma’s case.

Petitioner’s counsel had argued that in a review petition the court was not right in setting aside the direction for payment of Rs 50 lakh personally from Capt Sharma, particularly when it had recorded a finding earlier that the allotments were illegal, improper and unconstitutional.

He had also submitted that the apex court applied a wrong test in a review by adopting an analogy of a criminal trial and referring to provisions of the Indian Penal Code.

Further, it did not apply the correct test by observing that in case of criminal breach of trust, entrustment of property was an essential ingredient, which was not proved, he had contended.

On a PIL by Common Cause, a Bench headed by Justice Kuldeep Singh (since retired) had in 1996 cancelled the arbitrary allotments of petrol pumps/LPG distributorships made by Sharma in favour of his friends/relatives and imposed a penalty of Rs 50 lakh on him.

However, on a review petition filed after Justice Singh’s retirement, the order was recalled in 1999.

(Just for the record, I could not access the order of this bench at https://main.sci.gov.in/judgments. Since the search could not be carried out using the judge’s name, it was done for the dates between 01/12/2006 and 31/01/2007. I could not find this case in the list of 186 cases displayed.)

 

Two facts that struck me in these three verdicts of the apex court are:

One, the order dated 25/09/1996, considering the 15 cases of ‘discretionary allotment’ of petrol pump was in 26 pages, the order dated 04/11/1996, convicting Capt Satish Sharma was in just 5 pages while the one exonerating him, dated 03/08/1999, was in 61 pages. It reminded me of the quip: a person’s depth of knowledge of a subject can be measured by his ability to express it precisely.

Two, the judgment of 03/08/1999 began initially on a review petition with different prayers- for constituting Lokpal, making CAG, CVC, CBI etc effective- but was effectively diverted to a review of the judgment dated 04/11/1996.  And this was a case that had its origins in 1990, when Capt Satish Sharma was not even the Petroleum Minister.

 

Now, the disturbing question: Ab initio the case was misuse of discretion by the minister in the allotment of petrol pumps. So, who has erred? The bench of 1996 which imposed Rs 50 lakh penalty on Capt Satish Sharma? Or, the bench of 1999, which reviewed that judgment and recalled the order of 1996? With a 3 judge bench headed by the then CJI Y K Sabharwal in 2007 openly expressing that the 1999 order was legally wrong, where does that leave the citizens of this society, supposedly ruled by law, , seeking justice as interpreted by the courts?

 

There are two questions that struck me as I searched the website of the Supreme Court for copy of the orders.

The table below shows the chronology of events when viewed based on docket numbers, case numbers and actual dates of judgment.

 

Docket Numbers	Case Numbers	Judgment Dates	Judgment Dates as shown in Search Result
76199/1990	WP(Civil) 821/1990	03/08/1999	01/01/1970
18305/1994	WP(Civil) 26/1995	25/09/1996	01/01/1970
18306/1994	WP(Civil) 24/1995	04/11/1996	01/01/1970

Legend:           1          2          3

 

 

Now the first question is when the orders dated 25/09/1996 and 04/11/1996 are practically pertaining to the same case- the first one cancelled some allotment orders of the minister and issued show cause notice for not imposing penalty on him and the next one, after receipt of reply from the minister, convicted him and imposed the - how come they were registered under two dockets in 1994? And why is the case numbers allotted to two consecutive dockets not consecutive?

The third is why was the date of judgment in the search result showing up as 01/01/1970 in all these cases? For now I will leave it for the readers to ponder

 

Since the analysis of just one case has taken up most of the space meant for this critique, I shall conclude this with some assertions made by the courts in these judgments:

From the judgment of 25 September, 1996-

- None of these cases fall within the categories placed before this Court in writ petition (civil No. 886/93 titled Centre for public interest ligation vs. Union of India & Anrs. decided on March 31, 1995 but even if we assume for argument sake that these cases fall in some of those or similar guidelines the exercise of discretion was wholly arbitrary.

- … leaving the authorities to enjoy absolute discretion even within the guidelines would inevitably lead to gross violation of the constitutional norms when the persons for allotment are picked up arbitrarily and discriminatory (sic) (As an aside, may I ask, two questions? One, what about those who enjoy absolute discretion without even any guidelines? And, two, how about replacing ‘persons for allotment’ with ‘cases for judgment’?)

- This Court in Lucknow Development Authority versus M.K. Gupta (1994) 1 Supreme Court Cases 243, approved "Misfeasance in public offices" as a part of the Law of Tort. Public servants may be liable in damages for malicious, deliberate or injurious wrong-doing.

From the judgment of 04 November, 1996-

- "All these allotments are wholly arbitrary nepotistic and are motivated by extraneous consideration."

From the judgment of 03 August, 1999-

- The Civil Service as such has no Constitutional personality or responsibility separate from the duly constituted Govt. (Really? Aren’t they the ones who provide continuity to government?)

- "It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away."

 

These are what I call judicial flip flops. And they are very common in our courts, quite often with serious repercussions.

 

Currently there is an IIT alumni, Anil Gidwani, who is on a Fast unto Death at Azad Maidan, Mumbai since 26 Jan 2022. He had done his post graduation from the US of A and had a successful career there for many years before returning to serve in India in 1998.  A senior citizen, he is seeking speedy disposal of his cases pending with the courts in Mumbai. There is an online petition at https://chng.it/vyGxzhdFfL seeking support for his cause, which effectively is the cause of justice, which affects us all.

 

I dedicate this critique to the righteous justice seeker Anil Gidwani and two martyrs for the cause of justice-Indur K Chhugani and Mohini Kamwani-who have died, one due to covid and the other, reportedly by suicide, without getting justice.

 

 

Here is a Face book post, dated 30/04/2013 of Indur Chuggani:

Both PILs adjourned to 22nd June - Why? - I do not know.

- Appears Judges like to see me in court periodically - to double check "Is Chhugani still alive" --- Once they find he's still alive - they adjourn the case.

- Waiting for me to die - So that they can close the petition for demolishing 4000 illegal police chowkies across Maharashtra.

- My petition dragging on since 2007 - It was listed today at High Court

Mohini Kamwani, widow of a freedom fighter, had been illegally arrested by the police, acting, as per her, at the behest of land mafia who were trying to grab her property. She and her son were kept in jail for 4 days. The gutsy senior citizen sought justice and got an order in her favour, granting compensation for wrong done to her and directing the authorities to take action against the police personnel. While the compensation was paid justice did not prevail because the wrong doers were not punished. She had even gone to the then Chief Justice of Mumbai High Court and threatened him with citizen’s arrest. The lady had even protested in front of the apex court in February 2016. She had been posting her updates on Face book regularly, till a couple of years back. She has reportedly committed suicide on 30 October 2021, at a ripe old age of 83 years, due to financial problems.

Here is one of her last Face book posts:

P M Ravindran/raviforjustice@gmail.com/040222

JUDICIAL PERFIDIES-9

 

One of the first things that I did while settling to a retired life, almost a quarter century ago, was to buy an annotated copy of The Constitution of India, supposedly the most voluminous book on the subject in the world. I have always had this gut feeling that the fruits of sacrifices of the millions, during the freedom struggle that lasted almost a century, had been whisked away by one family. Some crumbs had been thrown to its courtiers, functioning as government employees, but the masses have certainly been left out.

 

Winston Churchill while opposing grant of freedom to our country had said: “Power will go to the hands of rascals, rogues, freebooters; all Indian leaders will be of low caliber & men of straw.  They will have sweet tongues & silly hearts.  They will fight amongst themselves for power & India will be lost in political squabbles.  A day would come when even air & water would be taxed in India.” While Churchill had certainly underestimated the core strength of this nation and its people, his successor Clement Atlee cannot be blamed for not trying to make it prophetic by handing over the reins of power to Jawaharlal Nehru, the one who usurped the Prime Minister’s office after losing badly to Sardar Vallabhai Patel, through the first electoral manipulation in the nation’s history.

 

It did not need very long for me to realize the incongruities between what has been promised in the Preamble and what has actually been provided in the main text. It really set me wondering whether it was simple incompetence or a deliberate mash up by those who had written it and approved it. In fact, even the apex court had not accepted the Preamble as part of the Constitution initially and had accepted it after 12 years holding its first decision wrong. Then one had just passed it off as one of the flip flops that one is used to hearing about judicial verdicts. Thereafter, my perspective changed and I wouldn’t blame the judiciary for its initial conclusion because that is the extent of incongruities between what has been promised in the Preamble and what has been delivered through the details. And, it has been worse when translating words into actions.

 

It was much later that I read the revelation by none other than the acclaimed architect of the Constitution, Dr B R Ambedkar himself. On 2nd September 1953, he made a confession in the Rajya Sabha that “People always keep on saying to me, so you are the maker of the Constitution. My answer is I was a hack. What I was asked to, I did much against my will. I am quite prepared to say that I shall be the first person to burn it. It does not suit anybody.”

 

But, even before that, in the Constituent Assembly of India on 19 November 1949, Seth Damodar Swarup had said, 'this Constitution may be the biggest and bulkiest constitution in the world, may even be the most detailed one, it may be heaven for the lawyers, and may even be the Magna Carta for the capitalists of India, but so far as the poor and the tens of millions of toiling, starving and naked masses of India are concerned, there is nothing in it for them. For them it is a bulky volume, nothing more than waste paper.'

 

History has proved Seth Damodar Swarup true. It is only after a former tea seller gained access to the most powerful office of the land that things have started to look up at least for the poor and the tens of millions of toiling, starving and naked masses of India. But it is certainly a long haul, what with Narendra Damodardass Modi having to work with the rusted tools- the bureaucracy and judiciary- he has inherited with his office.

 

Since this critique is about judicial perfidies we will leave the bureaucracy for now. But it needs to be asserted that this series cannot be complete without mentioning how the clerks have been exploiting and continues to exploit the failure of the judiciary, to the hilt.

 

We are all used to blaming our politicians for everything going wrong in this country and it is rightly so, given that we are touted as a democracy and the people we elect, through periodical elections, have to be ultimately held responsible for the overall governance. The politician-bureaucrat-criminal nexus has even been the subject of official studies. The Vohra Committee Report of 1993, post the Mumbai serial bomb blasts, is available at

https://adrindia.org/sites/default/files/VOHRA%20COMMITTEE%20REPORT_0.pdf.

 

More recently, in December 2020, the apex court dismissed a plea seeking a Lokpal-monitored investigation into the "criminal-political nexus" as flagged in the 1993 Vohra Committee report, saying the prayers are all "utopian". By the way, Lokpal is a judiciary- headed, judiciary-heavy (the chairperson is a retired Supreme Court judge, half of the eight members are either retired Supreme Court judges or Chief Justices of High Courts) anti-corruption authority at the national level since March, 2019. But has anybody heard of any result of its activities? Or, of the Lokayuktas in the states, which have been in existence for a much longer period?

 

Before proceeding further, here in a nut shell is what I have concluded from a study, from first principles, of the Constitution and the performance of its three organs over the years.

 

Law makers without any prescribed qualifications, qualities or experience, law enforcers with all the scope for distorting and manipulating data required to aid decision making (by the law makers), without any accountability and the law interpreters with all the leeway for making whimsical and wayward decisions without even the fear of being questioned sums up the gifts of our Constitution.

 

However, of all the people constituting the three organs, the law maker, politician, is the only one who, at least once in a couple of years, actually comes to the people and presents a balance sheet to them. It is for the people to evaluate their candidate objectively and choose the right one. How the people in the other two organs have failed the voting population in accessing the data that would facilitate informed decision making shall be covered separately. However, even after being elected, the fact remains that NO politician can be corrupt, or do anything wrong, without the active support of a bureaucrat. Then there is the media always on the prowl looking for news to slander the politicians. And ultimately the politician can always be hauled up before a court even by any citizen.

 

Though it is the President of India who is the Head of State and the Executive, but, unfortunately, it has been reduced, practically, to a ceremonial office. It is the bureaucrat who is the main stay of the Executive. While he provides continuity in governance and is responsible for delivering government services to the people, he is actually a behind the scene operator and the real power broker. By twisting facts and laws he can actually make the politician policymaker, a puppet. Of course, he can be seen using the same ploy for not performing himself. But, officially at least, he is supervised by the politician, the courts and the media!

 

Coming to the judiciary, judges enjoy a lot of immunity. In the case of higher judiciary it goes to the preposterous extent of absolute immunity! I need not highlight this further as the media is so full of reports about the crimes committed by judges and the existing system looking helplessly on! P D Dinakaran, Soumitra Sen etc cases have been covered in an earlier part of this series. The provision of impeachment is a fraud. It is as good as promising free medical aid on the moon to any poor patient who can transport himself there, at his own cost! Nowhere is the truism 'power corrupts, absolute power corrupts absolutely' more evident than in our judiciary.

 

While being taught about the Constitution and its three organs in school, we had been told, that there are enough checks and balances between the various organs. But a cursory reading of the Constitution will reveal that it is not so.

 

My study tells me that Articles 129 and 215 of the Constitution are the most obnoxious provisions that can be imagined in a document that lays down the frame work for a democratic society with rule of law as its cardinal principle. These articles are reproduced for ease of understanding:

129. The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself

215. Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself

The short and crisp provisions may only have been intended to be a deterrent for those likely to take the verdicts of the courts lightly. But still, the prosecutor and judge being the same is not only anathema to the concept of justice but also questionable for its very rationale.  As James Madison, often referred to as the Father of the Constitution in the U S of A, put it, No man is allowed to be a judge in his own cause; because his interest will certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay greater reason, a body of men are unfit to be both judges and parties at the same time.

 

The Contempt of Court Act, 1971 aggravated the situation by defining contempt with a broad brush in the following manner:

2. Definitions.—In this Act, unless the context otherwise requires,—

 (a) “contempt of court” means civil contempt or criminal contempt;

(b) “civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;

(c) “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which—

(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

 (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;

 

As far as civil contempt is concerned it is more or less catered for under Sec 188 of Indian Penal Code which deals with Disobedience to order duly promulgated by public servant.

Interfering with and obstructing judicial proceedings or administration of justice is beyond the scope of anybody other than advocates and judges. That leaves the issue of scandalizing and/or lowering the authority of any court. Here again, strictly speaking, it is only the conduct of the judges and advocates that can scandalize or lower the dignity of the courts.  When four judges get together to address a press conference, that too during working hours when they should have been in their respective courts, and casts aspersions of the then Chief Justice of India himself, literally questioning his very integrity, without even substantiating them and knowing well that there was nothing that the public could do about their allegations, and they get away with it, that is when the courts are scandalized and their authority is lowered.

 

The courts were scandalized even when an advocate in Kerala was arrested for misbehaving with a woman in public, the advocates united to protest, manhandled media persons and even locked up the press room in the High Court complex for a prolonged period.

 

We are aware that our jurisprudence is based on some premises like even if a thousand criminals escape one innocent shall not be punished and capital punishments are awarded in the rarest of rarest cases. In spite of this the Supreme Court itself had admitted in 2009 that it had wrongly sentenced 15 people to death in 15 years. In 2012, 14 retired judges wrote to the President, pointing out that since 1996 the Supreme Court had erroneously given the death penalty to 15 people, of whom two were hanged. (‘You were wrong, My Lords’, 02 August 2015, https://www.telegraphindia.com/7-days/you-were-wrong-nbsp-my-lords/cid/1314002) Did the judges offer any apology? Was any compensation offered to the families of the victims? No? Haven’t those judges scandalized and lowered the authority of the courts?

 And now, on 18 January 2022, we get to read a report at https://www.asianetnews.com/amp/india-news/bombay-hc-commutes-death-sentence-to-sisters-who-killed-children-r5wjzt according to which the Mumbai High Court has ruled that the indefinite delay in the mercy petition could not be accepted at a time when communication was so fast due to advances in technology but rejected the demand of the accused to be released. The facts pertaining to the case are:

Renu and Seema, two half-sisters, were arrested in 1996 in connection with the kidnapping of 13 children and the murder of nine of them; their death sentence was upheld by the Supreme Court in 2006; mercy petition to the President has been pending since then. Following the commutation of death sentences of the convicts in Rajiv Gandhi assassination case, on grounds of delay, in 2014, the convicted sisters approached the High Court for reprieve which has now been partly granted.

Is it some good (or bad) fall out of the letter written by 14 retired judges in 2012? Give me a reason for believing it is not. But what is striking is the delay from award of death sentence by the trial court to its confirmation by the apex court and even in disposing the petition for reprieve. Wasn’t this issue of commutation of death due to delay in decision on mercy petition another encroachment of executive jurisdiction by the judiciary?  What we have to acknowledge here is another simple fact- for the politician every decision has a political angle to it and it is always guided by the assessment of how people will react to such decisions. For the courts, it is not so. And that is what they have been claiming too in public.

Contempt of court for scandalizing and lowering the authority of the court is a provision that has been used as a Damocles sword on the freedom of speech and expression guaranteed under the Constitution. It has been used more than civil contempt for disobeying the orders of the courts. But even here the waywardness is evident when almost always ordinary citizens are hauled up and not everyone. While Karnan’s case has proved that even sitting high court judges can be punished, we have read enough reports of many members of the judicial fraternity committing such offences and getting away with it.

Articles 124(4), 124(5) and 218 which provide for only removal of judges of Supreme Court and high courts through impeachment and Articles 129 and 215 which provide for contempt of court are surely against the principle of equality enshrined in the Preamble of the Constitution and in violation of Articles 14 and 19 of the same Constitution. It is interesting to note that Article 19 had been had been amended for the first time in 1951 itself to restrict freedom of speech and expression in the matter of contempt of court while its restriction in the matter of sovereignty and integrity of India was included only in 1963.   But there can be no doubt that the overall effect has been to make our judges unaccountable and hence that much less credible.

Writes Jay Bhattacharjee in his book Resurgent Bharat:

“In a long and disjointed judgement, the bench ordained that any criminal case against a Supreme Court or High Court judge would be registered only after the President sanctions the prosecution, after consulting the Chief Justice of India (CJI) and in accordance with his advice. The overt logic for this decision was that the higher judiciary required protection from any executive interference...  Let’s be very clear. This was a veritable coup against the Republic’s citizens.”

 

There is this case of Ajit Kumar Sengupta, a judge of the Kolkatta High Court, to prosecute whom permission was sought from the then Chief Justice of India, Venkatachaliah, who was well known for his integrity. However, even Justice Venkatachaliah did not give permission. The strength of the evidence can be gauged from the fact that Sengupta was raided and arrested soon after he retired because after retirement, permission of CJI was not required.

 

 A report at https://www.business-standard.com/article/specials/a-calcutta-scandal-197050601041_1.html ((‘A Calcutta Scandal’, 27 Jan 2013) concludes with the following assertions:

Justice Senguptas career represents only an extreme case of the freedom under which our judiciary functions. This freedom was guaranteed by our Constitution to safeguard its integrity. But as Justice Sengupta proved, the constitutional guarantee equally extends to arbitrariness, and even to lack of integrity. The judiciary faces little scrutiny from the media, which are mortally afraid of being charged with contempt of court. No one outside has the power to discipline it, and its own mechanisms of self-discipline are woefully inadequate. Only the judges can reform the judicial system. They should make a beginning.

 

Is anybody aware of any beginning being made? I am not. In fact I am not only aware but convinced that even in the subversion of the Right to Information Act, the role of the judiciary has been anything but commendable. Difficult to believe?  Here is just one example.

The Right to Information Act, 2005, which became law on 15 June 2005, mandates that all public authorities disclose certain basic information of their organization as per Section 4(1)(b). This was to be done within 120 days from the enactment of the Act. I have been using compliance with its sub sections (ix) and (x) as a yardstick to measure the transparency of common public authorities. These sub sections require disclosure of

(ix)             a directory of its officers and employees;

(x) the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations;

As on 09 April 2021 when I tried to access these details I could not find details for the judges but the details of Secretary General and below were available under the Compliance under Section 4(1)(b) of Right to Information Act, 2005 option.

 

P M Ravindran/raviforjustice@gmail.com/300122