30 August 2022 has to be a
Grey Letter Day in the history of free India’s judiciary. That is the day when a three member bench of
the apex court closed the contempt of court case against Adv Prashant Bhushan
and journalist, Tarun Tejpal. The case was simple. The acclaimed crusader for
judicial reforms had, in an interview given to Tehelka, in 2009, alleged that 8
Chief Justices of India were corrupt. Later in an affidavit submitted to the
court he had named them and explained his reasons for making such an
allegation.
The case had been hanging
fire over the two for over 13 years, while the nation itself had been wondering
whether it will ever be decided in their life time. The case had been listed
many times and partly heard by many judges, the last of which was a bench
headed by Arun Mishra in 2020, after a gap of eight years.
During that hearing,
Bhushan had said “In my interview to Tehelka in 2009, I have used the word
corruption in a wide sense meaning lack of propriety. I did not mean only
financial corruption or deriving any pecuniary advantage. If what I have said
caused hurt to any of them or to their families in any way, I regret the same”.
When the bench did not
accept the regrets, Bhushan had asked the
three judges to send the case to a Constitution Bench and suggested five issues
that it could be asked to rule on. The important among the five was: “Whether
the expression of a bona fide opinion about the extent of corruption in any
section of the judiciary would amount to contempt of court.” And If yes,
“Whether the person who expresses such opinion…is obliged to prove that his
opinion is correct or whether it is enough to show that he bona fide held that
opinion.” (‘Supreme Court closes 2009 contempt case against Prashant
Bhushan, Tarun Tejpal’, Aug 30, 2022 at https://www.hindustantimes.com/india-news/supreme-court-closes-2009-contempt-case-against-prashant-bhushan-tarun-tejpal-101661868144791.html)
Arun Mishra did not decide
the case. But in another contempt case on two tweets, the same judge went on to
award a fine of Re 1/- to the same contemnor. While the judge might have placed
such a low cost for criminal contempt, it cannot be said of the tax payer.
The recent verdict by the
3 judges’ bench, headed by Indira Banerjee, indicates that the regrets were finally
accepted after senior advocate Kapil Sibal informed the bench that an
apology has been tendered. (‘Supreme Court closes contempt case against
Prashant Bhushan, Tarun Tejpal’, August 31, 2022 at https://indianexpress.com/article/india/supreme-court-contempt-case-prashan-bhushan-tarun-tejpal-8120346/)
Incidentally, the copy of
the judgment could not be accessed at the apex court’s website even though
searches were made based on date of verdict, judge name and free text.
For one who has been
demanding the abrogation of the contempt of court provisions of the
Constitution simply because it is anathema in a democracy, this judgment hardly
merited rejoicing. The scepticism was born out of my own observations of the
functioning of our courts which had been succintly captured by Radha Rajan, in
an article ‘High Court and Supreme Court ‘jallikattu’ the PCA Act’, published
on 21 February 2012 at http://www.vijayvaani.com/FrmPublicDisplayArticle.aspx?id=2195. She had written: '...for
judges of the Madras High Court and the Supreme Court, the PCA Act is a dog is
a monkey is a bear is an elephant; intriguingly, a dog is also not a dog on
another day.' I normally refer to such series of judgments as judicial flip
flops. In this case my thoughts were also influenced by the quip Let the dogs bark, the caravan will move on…
which paraphrased for our context could well be let the mango people criticize, we, the judges, couldn’t care less..
And vindication has not
been long in coming.
M.A. Shaikh, Vice President of ‘Indian Lawyers
and Human Rights Activists' Association’ had recently filed a petition before
the apex court seeking to disqualify CJI designate D Y Chandrachud, from
assuming office on 09 November 2022. The allegations include misuse of power by Justice D.Y. Chandrachud
in discriminating between ‘Senior and Junior Lawyers’ and ‘rich and poor
litigants’ and passing contrary orders in the similar cases. The instances show
that Justice Chandrachud granted relief to rich people and Senior advocates and
dismissed the request of poor people and junior advocates.
The blog, dated 27 Oct
2022, at https://rashidkhanvaccineblog.blogspot.com/2022/10/important-justice-chandrachud.html also informed its readers that Supreme Court Advocate Anand Jondhale is going to represent the
petitioner and around 70 counsels from Indian Lawyers Association are going to
assist him.
While a bench headed by
CJI Lalit had dismissed the plea on 02 November 2022, after an impromptu
hearing, the redeeming fact is that the petitioner has neither been penalized
for wasting the court’s time nor hauled up for contempt. May I say that Indira
Banerjee judgment in Prashant Bhushan case has survived this one time?
The petition was listed
post haste on 02 November and dismissed by a 3 member bench, headed by the
outgoing Chief Justice himself, with the observation that the entire petition was "misconceived. While we should be thankful that the apex
court did not repeat the faux paus as in the case of a former Chief Justice of
India accused of molesting a woman, I find there are reasons to go a little
deeper into the matter than swallow, hook, line and sinker, whatever the
reasons for the dismissal, as given by the court.
One of the allegations, in
the 764 pages writ, which is available at FINAL
WRIT FOR UPLOAD.pdf - Google Drive , is as
follows:
For hearing a case where he is
disqualified because of two reasons:
(a) His son Adv. Abhinav Chandrachud
appeared for the one of accused before High Court for the same connected FIRs.
[Writ Petition (Cri) No. 3199/ 2021 order dated 20.09.2021]
(b) Because in the impugned order before
him Adv. Nilesh Ojha appeared as a counsel who, on earlier occasions also in 2018 acted as a
counsel for complainant when a complaint is filed against Justice D. Y.
Chandrachud and his son Adv. Abhinav Chandrachud [Case No. PRSEC/ E/2018/21401]
This allegation is simple
to understand and validate.
We are aware of Bar
Council rules that forbid relations of judges from appearing before them. But
like Prashant Bhushan’s definition of corruption, today the definition of relation
also has a wide connotation. Here, let me quote from a report ‘Judge Dread’,
published on 08 November 2004 at http://www.outlookindia.com/article/Judge-Dread/225624.
"It is true that the solution
suggested is unusual, but unusual situations which pervert the judicial system
require unusual and unorthodox remedies." -Eminent jurist H.M.Seervai in
his book, Constitutional Law of India
This was the very quote that Binod Kumar
Roy, Chief Justice of the Punjab and Haryana High Court, used to justify his
five-page administrative directive restricting relatives of certain judges from appearing before them. The Bar
Council rule is clear that lawyers can't appear before their own kin. Roy's
directive identified a dozen judges whose relatives are advocates (see All in
the Family) and forbade them from appearing before any of these 12. This
ensured that a judge cannot help even a fellow judge's kin.
Within a month of this directive, the SC
collegium recommended his transfer to the Patna High Court.
It is ironic that the axe is falling not
on the transgressor but on the one who cracked the whip against
transgression," states a memorandum signed by 1,001 lawyers of the high
court. It was sent to the President this week, urging him to send the file
regarding Justice Roy's transfer back to the collegium for reconsideration.
The first time differences between him
and the judges came out into the open was last December when 19 judges refused
in writing to do administrative work, including inspection of subordinate
courts in the districts allotted to them.
When Justice Roy issued notices to the
two judges, it united all the others against him and led to an unprecedented
strike on April 19 this year.
Given the developments in
communication technology and the prevalence of the Global Village concept, one
can very well imagine the (ir)relevance of geographical boundaries, even in the
context of the court complexes.
Does anyone recollect the
scam involving the relations of the then CJI K G Balakrishnan?
As per a report at http://www.business-standard.com/article/news-ians/sc-moved-for-balakrishnan-s-removal-as-nhrc-chief-113080201258_1.html (‘SC moved for Balakrishnan's removal as NHRC chief’,
August 2, 2013) NGO Common Cause has
sought direction to the government that it should make a reference to the apex
court under Section 5(2) of the Protection of Human Rights Act for holding an
inquiry against Justice Balakrishnan for his alleged acts of misbehaviour
during his tenure as CJI.
The NGO, in its PIL, alleged that during the tenure of
Justice Balakrishnan, his close relatives including his daughters and
sons-in-laws acquired assets disproportionate to their known sources of income.
A later report, at https://economictimes.indiatimes.com/news/politics-and-nation/former-cji-k-g-balakrishnans-relatives-hid-crores-of-income-reveals-i-t-probe/articleshow/57162253.cms (‘Former CJI K G Balakrishnan’s relatives hid crores
of income, reveals I-T probe’, Feb 15, 2017) states: Bhushan, appearing for NGO Common Cause, said 21 properties were bought
by Balakrishnan's relatives whose source of income was limited. He also
produced sales deeds of the properties.
Although the Centre contended that the I-T department
had given a clean chit to Balakrishnan and his family members for allegedly
amassing disproportionate and benami assets, it admitted that some of the
properties were undervalued by them but they had now paid taxes as per market
value.
The Centre's contention was opposed by advocate
Prashant Bhushan who told a bench headed by Justice Dipak Misra that the
"shocking revelations" must be probed by an independent agency. AG
Mukul Rohatgi had earlier told the SC that the I-T wing had conducted a probe
but it failed to find any evidence of DAs against them.
Income as per ROI of his son-in-law P V Sreenijan in
2009-10 was Rs 26.61 lakh but the assessed income was found to be around Rs
1.64 crore. Similarly, his income was shown as Rs 47.47 lakh in 2010-11, but
was assessed at Rs 2.11 crore. He had to pay Rs 1.02 crore as tax and interest.
In case of his other son-in-law M J Benny, the report
says his income as per ROI was Rs 28.94 lakh in 2010-11, but assessed income
was Rs 1.79 crore and he had paid Rs 97.73 lakh as interest and tax.
The report says income of his daughter K B Sony was Rs
38.69 lakh as per ROI but was assessed at Rs 1.67 crore and she had paid Rs
38.74 lakh as interest and tax in 2010-11.
Why this case became
relevant here is due to the fact that even if the figures of RoI and assessment
are studied cursorily, it would show how relevant was Prashant Bhushan’s demand
of a probe by an independent agency.
Veteran journalist Kajal
Basu, writing on ‘The cost of criminalising criticism’ (
https://www.newindianexpress.com/opinions/2022/aug/10/the-cost-of-criminalising-criticism-2485883.html) concludes by stating Until trust is re-established through transparently dependable
judgements, there is no point in shutting out or even criminalising criticism
(personal-political though it may be)—criticism that, as in the best
democracies, can only aid in the improvement of judgements and judges alike.
For decades now, in the US, for instance, the
extrajudicial preferences of judges have been openly debated. Their judgements
are almost invariably put through the media mill, and what contributed to the
judgements lit up in neon.
In the UK, judicial accountability is a media free
for-all—admittedly, mostly, but not solely, in the contumacious
tabloids—unfettered by protestations, such as in India, from judges (because it
is sweepingly accepted that there exists substantial political interference at
the trials stage).
In Tamil Nadu a You Tuber,
Savukku Shankar, is facing trial for contempt of court and he has maintained
that he stood by his statement that the entire judiciary is riddled with
corruption. (https://www.livelaw.in/news-updates/madras-high-court-youtuber-savukku-shankar-stands-by-his-statement-in-court-contempt-case-208080) A reader commented: Savukku is right judiciary is highly corrupt but I would like to remind
him that politicians, bureaucracy, business, media are equally or more corrupt
than the judiciary. My only question is: How can politicians, bureaucracy,
business, media be more corrupt when they can all be hauled up before the
judiciary? And you can't haul up judges before anybody!
P M Ravindran/ raviforjustice@gmail.com 04 Nov 2022
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