S.O.S e - Voice For Justice - e-news weekly
Spreading the light of humanity & freedom
Editor: Nagaraja.M.R.. Vol.13..Issue.24........17 / 06 / 2017
JAIL CJI Khehar
Traitors in Judiciary
& Police
Crimes by Khaki
FIRST Answer Judges Police
Judiciary
Does Not Want Any Accountability or Transparency, Allege RTI Activists
– BY GAURAV VIVEK BHATNAGAR
The RTI Act has faced resistance
from the courts in recent years, especially when information is sought about
their functioning as public authorities, a new report says.
The
jury is out on whether the judiciary has over the years played the role it
ought to while dealing with matters pertaining to promoting transparency in
general and the Right
to Information (RTI) Act in particular. Legal luminaries and
RTI activists alike believe the court’s must play a more supportive role if
greater transparency in public life is to be achieved.
A recent report titled
‘Tilting the Balance of Power – Adjudicating the RTI Act’ by the Satark Nagrik
Sangathan (SNS) and the Research, Assessment and Analysis Group (RaaG), notes
that before the RTI law was passed, the judiciary played a seminal role in
recognising and furthering peoples’ right to information in India. In fact, as
far back as 1975, 30 years before the RTI law was enacted, the Supreme
Court adjudged the right to information to be a fundamental right.
Besides
being the final adjudicatory authority for the law, the Supreme Court and high
courts are also public authorities under the RTI Act. The report, authored by
RTI activists Amrita Johri, Anjali Bhardwaj and Shekhar Singh, suggests that
the RTI Act appears to be facing resistance from the courts, especially when
information is sought about their functioning as public authorities.
Is
RTI facing resistance from the judiciary?
In
the last ten years, scores of RTI applications have been filed by citizens
seeking information from the courts, many of which have required judicial
adjudication. Five such matters reached the Supreme Court, three of which were
referred to a constitution bench that is yet to be set up. The other two cases
were dismissed by the apex court at the stage of admission. About the
cases that were dismissed, the RaaG-SNS report notes:
“Unfortunately,
these cases raised matters of great public interest but were dismissed by the
SC without providing any details or reasons in their orders. One of them sought
information using the RTI Act, about cases pending with the Supreme Court in
which the arguments had already been heard but orders had been reserved. In the
other matter, the applicant sought the total amount of medical expenses of
individual judges reimbursed by the Supreme Court, citing a Delhi high court
ruling of 2010 which stated that, ‘The information on the expenditure of the
government money in an official capacity cannot be termed as personal
information’.”
Information
denied on appointment of judges
In
one of the three cases referred to the constitution bench, an RTI applicant
filed a request to the Supreme Court in 2009 seeking a copy of the complete
correspondence, with file notings, exchanged between the chief justice of
India (CJI) and other concerned constitutional authorities relating to the
appointment of Justice H.L. Dattu, Justice A. K. Ganguly and Justice R.M. Lodha
as judges of the Supreme Court, superseding the seniority of Justice A.P. Shah,
Justice A.K. Patnaik and Justice V.K. Gupta. The information sought was denied.
When the Central Information Commission (CIC) directed that the information be
furnished, the information officer of the apex court appealed directly to the
Supreme Court against the order.
CIC
order on assets of judges challenged before apex court
In
the second case, the RTI applicant asked if any declaration of assets was ever
filed by the judges of the Supreme Court or high courts to the respective CJIs.
The Supreme Court’s 1997 resolution requires judges to declare to the CJI the
assets held by them in their own name, in the name of their spouse or any person
dependent on them. The information was denied but the CIC directed that the
information sought by the applicant be provided. The CIC order was challenged
by the Supreme Court in the Delhi high court, which held that the contents
of asset declarations were entitled to be treated as personal information
under Section 8(1)(j) of the RTI Act,
but since the applicant only sought to know whether the 1997 resolution was
complied with, the sought information should be provided. A three-judge bench
of the high court stated:
“…A
judge must keep himself absolutely above suspicion, to preserve the
impartiality and independence of the judiciary and to have the public
confidence thereof.…Accountability of the judiciary cannot be seen in
isolation. It must be viewed in the context of a general trend to render
governors answerable to the people in ways that are transparent, accessible and
effective. Well defined and publicly known standards and procedures complement,
rather than diminish, the notion of judicial independence. Democracy expects
openness and openness is concomitant of free society. Sunlight is the best
disinfectant.’’
This
judgement was subsequently challenged by the chief public information
officer before the Supreme Court.
In
the third case, quoting a media report, an RTI application was filed with the
Supreme Court seeking copies of correspondence between the then CJI and a judge
of the Madras high court regarding the attempt of a union minister to influence
judicial decisions of the said high court. The applicant also sought
information regarding the name of the concerned union minister. The CIC, in its
order, overturned the decision of the public information officer, which denied
the information sought. Bypassing the Delhi high court, the public information
officer of the Supreme Court directly moved a petition before the SC
challenging the CIC order to disclose information.
Three
cases clubbed together
In
its order, the Supreme Court, while hearing
the case related to correspondence between the CJI and other constitutional
authorities about the appointment of judges, clubbed the other two
cases with the matter. The apex court order stated that the consideration
of a larger bench was required as grave constitutional issues were at stake,
including the need to balance the independence of the judiciary and the
fundamental constitutional right of citizens to freedom of speech and
expression.
The
court listed three sets of questions which, according to them, raised
substantial questions of law as to the interpretation of the constitution:
· Whether
the concept of independence of judiciary requires and demands the prohibition
of furnishing of the information sought? Whether the information sought for
amounts to interference in the functioning of the judiciary?
· Whether
the information sought for cannot be furnished to avoid any erosion in the
credibility of the decisions and to ensure a free and frank expression of
honest opinion by all the constitutional functionaries, which is essential for
effective consultation and for taking the right decision?
· Whether
the information sought for is personal information and therefore exempt under Section
8(1)(j) of the Right to Information Act?
The
report by RaaG and SNS notes that while the first two sets of questions do seem
to relate to constitutional issues, like the adverse impact peoples’ right to
information might have on judicial independence, or amount to interference in
the functioning of the judiciary, or compromise its credibility, it is not
clear how the third question relating to exemption on grounds that it is
personal information under section 8(1)(j) of the RTI Act raises any constitutional
concerns.
The
report goes on to highlight the contradictions inherent in the stand taken by
courts in these matters by quoting judgements of the Supreme Court in which the
court has itself discussed one or more of these issues in relation to the judiciary
and other public functionaries and ruled in favour of transparency. For
instance, the Supreme Court in Manohar s/o Manikrao Anchule vs State of Maharashtra & Anr in
2012 stated that “It
cannot be doubted that transparency is the sine qua non of
restraint on abuse of judicial powers. Transparency in decision-making not only
makes the judges and decision-makers less prone to errors but also makes them
subject to broader scrutiny.”
In Union
of India vs Association for Democratic Reforms, 2002, the court
directed the Election Commission to call for information from
all candidates seeking election to parliament or a state legislature, and from
their spouses and dependants, about their assets as, “…there are widespread
allegations of corruption against the persons holding post and power. In such a
situation, question is not of knowing personal affairs but to have openness in
democracy for attempting to cure cancerous growth of corruptions by few rays of
light. Hence, citizens who elect MPs or MLAs are entitled to know that their
representative has not miscomputed himself in collecting wealth after being
elected.”
In PUCL
vs Union of India in 2003, while examining the plea
that contesting candidates should not be required to disclose the assets and
liabilities of their spouses as it would violate the right to privacy of the
spouses, the Supreme Court held that the fundamental right to information of a
voter and citizen is promoted when contesting candidates are required to
disclose the assets and liabilities of their spouses. The SC ruled that when
there is a competition between the right to privacy of an individual and the
right to information of the citizens, the former right has to be subordinated
to the latter right, as the latter serves a larger public interest.
Similarly,
to ensure transparency and improve the process of selection of judges in
Supreme Court in Advocates-on-Record Association and Ors. vs Union of India in 2015,
a five-judge bench laid down broad guidelines for the government of India which
was tasked with the responsibility of preparing the Memorandum of Procedure for
the appointment of judges. Among other things, the guidelines stated that the
eligibility criteria and procedure for selection of judges must be transparent
and put up on the website of the court concerned and the department of justice.
In addition, they required the provision of an appropriate procedure for
minuting the discussions including recording the dissenting opinion of the
judges in the collegium.
Supreme
Court’s changing position
Former
information commissioner Shailesh Gandhi believes the Supreme Court’s
stance towards RTI has changed in the past few years.
“If
I look at the Supreme Court judgments on transparency and Right to Information
before the Act came in 2005 and after the Act, it looks like these are two
different countries, two different courts,” he said. Gandhi said he had earlier
come out with another report which showed how out of 17 orders of the SC on
RTI, in only two it ordered information to be given.
On
what could have prompted the change, he said, “I can guess very easily. Before
the RTI Act came freedom of speech was fine but nobody questioned the court and
nobody tried to find out anything about the courts and people would only say,
“I have great faith in the judiciary”. The Right to Information for the
first time changed that paradigm. A reporter of any newspaper would be wary of
what he writes as far as the judiciary is concerned. But RTI people started
asking all kind of inconvenient questions. And some things have come out which
have been very unpalatable, to say the least.”
Gandhi
said now the judiciary refuses to look at RTI applications that have
anything to do with them. “When you are in a public office and right to
information is there, people will ask all kinds of things. When I was a
commissioner, someone had filed an RTI application asking how much bribe
Shailesh Gandhi has taken in the last two years. Now, things like this can be
upsetting to people. And in my opinion, that is why they have gone against
transparency and RTI Act.”
He
said that often the judiciary has been very direct in showing its anger against
the RTI. “In the first CBSE judgment, they said RTI should not be allowed
to damage the peace, integrity and harmony of India. Such a view is okay for
terrorists, but not for citizens. I have noticed over time that everyone in
power dislikes being transparent.”
Recalling
how the website of the Supreme Court was probably the best which existed under
Section 4(1)(b) when he was the chief information commissioner, the first chief
of the CIC, Wajahat Habibullah said he also, however, understands that
having a website and making disclosures are two different things. “And
therefore it is quite possible that in this case the Supreme Court has not been
very favourably inclined towards the RTI. It simply means that the current
phase of RTI in the courts is one that is defensive. It is not anti-RTI, it is
more defensive in terms of the openness of the RTI.”
‘Judiciary
too resists accountability’
Senior
advocate Prashant Bhushan concurred that the judiciary too does not like
transparency when it concerns its own accountability. “Unfortunately we have
seen that when it comes to themselves, the courts do not want any
accountability or any transparency and this we have seen in all kinds of
issues.”
For
example, he said, “in judicial appointments, the court shies away from
transparency, by and large, some judges are exceptions who ask for it, but
otherwise they don’t want transparency. Same thing happens with accountability.
They don’t want any accountability and, in fact, they have progressively
whittled down their accountability.”
Habibullah
believes that at the moment “RTI is facing challenges”.
“When
I was there [as the Chief Information Commissioner] my dealing was basically at
the high court level as there were few cases in the Supreme Court then. The
high court decisions were generally very supportive of the RTI. It was the time
of the actual establishment of the jurisdiction or expanse of the RTI and these
orders were very constructive. Now it is passing through a different phase
where there has been some sort of a retreat,” he said.
‘Public
pressure can change the tune’
Bhushan
said the judiciary has also very often taken contempt action against people who
have written anything against the judiciary or the judges. “Therefore, it is
very clear that by and large judges do not want any accountability, nor any transparency.
And that is why now that the RTI Act has also been applied to them they are
passing judicial orders basically obstructing the orders of the CIC. This is
what has happened. Ultimately these matters are for the courts to decide. But
once there is sufficient public opinion then probably they will change their
tune.”
According
to Bhardwaj of SNS, given the extremely progressive orders related to
transparency by the Supreme Court before the RTI Act was passed, people expect
the judiciary to champion the cause of transparency and expand the scope of the
law. “The reluctance of the judiciary to submit itself to the RTI Act is very
concerning and we really hope that the constitution bench will give a
progressive ruling on the questions referred to it. One of the main objectives
of the RaaG-SNS report is to provoke a public debate on the manner in which the
RTI Act is being interpreted by the adjudicators and to mobilise public opinion
to demand greater openness in the functioning of all public authorities
including the courts.”
Dushyant Dave
speaks on Pul’s suicide note, Sahara-Birla and Supreme Court
A few weeks ago, a suicide note
purportedly written by late Arunachal Pradesh Chief Minister Kalikho Pul raised
more than a few eyebrows amongst the legal fraternity. The note, which first
surfaced about six months after Pul’s suicide, made some shocking allegations
against sitting and retired Supreme Court judges, lawyers and politicians.
Quite
astonishingly, the national media, which usually goes into top gear at the drop
of a hat, chose to maintain silence over the issue.
And
then something interesting happened.
Pul’s
widow, Dangwimsai Pul, wrote a letter to Chief Justice of India JS Khehar
seeking his permission for the registration of an FIR on the basis of the
allegations made in the suicide note, putting the CJI in an awkward situation.
Surprisingly,
the letter was converted into a petition and was listed before a bench of
Justices AK Goel and UU Lalit.
That
is when Senior Advocate Dushyant Dave took up the matter and appeared for
Dangwimsai Pul in the Supreme Court. Bar & Bench’s Pallavi Saluja spoke to
Dave on this controversial issue and Sahara-Birla judgment.
“I
think the developments over the last few weeks have shaken me. I respect
judiciary immensely. I love the judiciary. I have been a judge’s son, I have
been a lawyer for 38 years and I don’t know where we are heading with this kind
of a judiciary. It’s very difficult for people to really get justice, if
everything is going to be controlled in one form or the other by executive.
It’s going to be really sad.”
Below
are the edited excerpts of the conversation:
Pallavi
Saluja: Why did you take up this matter? Do you see any truth in the
allegations that have been made in the suicide note?
Dushyant
Dave: It is not part of my job to decide whether the contents of the suicide
note are truthful or not. That is a matter to be investigated by a fiercely
independent and absolutely credible institution. Unless that is done, we will
never really know.
Secondly,
there is no doubt about the fact that a suicide note is equivalent to a dying
declaration under Section 32 of the Evidence Act. There is a long line of
judgments delivered by the Supreme Court, where they have categorically held
that a suicide note can be relied on to prove various offences.
So
having said that, the reason why I accepted the brief was because I was
appalled by fact that the judges, particularly the Chief Justice of India, were
attempting to give a judicial burial to this whole issue and that is what
really shook me beyond imagination. Like in the Sahara-Birla judgement, the
attempt here was to somehow put the controversy beyond investigation by anybody
else in the country.
That
was clearly unacceptable to me and therefore, as a lawyer, and as somebody who
loves Constitution, the institution of the judiciary, particularly the Supreme
Court, I felt that it was necessary for someone to stand up.
PS:
What do you make of the timing of the suicide note’s release?
DD:
I am not really bothered about the timing of the suicide note. The fact of the
matter is that there exists a suicide note; the question is somebody has to
take up the matter. Apparently, there is a story going around that Governor
Rajkhowa had suggested a CBI inquiry into the suicide note.
Yes,
there may have been some delay, but ultimately it is in the interest of the
institution that the investigation is made by a fiercely independent
institution as early as possible and the truth is brought out. Twice during my
arguments, I mentioned before the Court that I am not on the contents of the
suicide note, and that I pray that after such investigations the allegations
are proved to be wrong, but my argument was that you cannot determine that
without having an independent inquiry.
It
is too serious a matter; the charges are very, very serious and they really go
to the very foundation of the institution (of the Supreme Court), which has now
been shaken because of this.
Chief Justice Khehar
PS: In both Sahara-Birla and Pul’s matter questions have been raised regarding the constitution of the bench(es), which heard the matters respectively. Do you see a connection?
Chief Justice Khehar
PS: In both Sahara-Birla and Pul’s matter questions have been raised regarding the constitution of the bench(es), which heard the matters respectively. Do you see a connection?
DD:
There is no doubt about the fact that the Chief Justice Khehar constituted the
bench presided by Justice Arun Mishra and Justice Amitava Roy to which the
Sahara-Birla matter was assigned, after dismantling two other benches presided
by two judges senior to Justice Mishra – Justice Ramana and Justice RK Agrawal.
This
was completely unacceptable, because when senior judges are available, you
never allow a junior judge to preside, unless the senior judges are sitting in
a Constitution Bench or something. This rule was overlooked in the Sahara-Birla
matter. Curiously, the two learned senior judges, Justice Ramana and Justice Agrawal,
have started to preside again after two or three weeks’ gap. So what was the
point of taking away the presiding assignment from them?
In
Mrs. Pul’s matter, when the request was made in the letter to simply pass an
administrative order, with a clear request that the matter be placed before an
appropriate judge, Chief Justice Khehar should never have touched the matter.
He
should have simply directed that letter to Justice Chelameswar, who is the
number three in seniority, as there were allegations against the Chief Justice
and Justice Dipak Misra in the suicide note, or maybe he should have
constituted a 5 or 7 judge bench considering the seriousness of the matter, as
he did in Justice Karnan’s case.
So
sending the matter to Court 13 knowing that he (the CJI) and Justice Goel have
been colleagues in Punjab & Haryana High Court and that it would send wrong
signals, he still did it.
Regrettably
one gets an impression that on the one hand state government and central
government were not taking any action on the suicide note and on the other hand
Supreme Court was deciding the Sahara-Birla matter giving clean chit to alleged
recipients from across political spectrum. This is a very complex but curious
co-incidence. The existence of the suicide note and its seriousness were within
the knowledge of the concerned persons.
Justice Arun Mishra
PS: But what is wrong in Justice Arun Mishra being allocated the Sahara-Birla case?
Justice Arun Mishra
PS: But what is wrong in Justice Arun Mishra being allocated the Sahara-Birla case?
DD:
I will tell you why I am a little troubled. Justice Khehar was present on
December 18 at a function at Justice Arun Mishra’s place where I was also
present. Justice Khehar saw that a large number of politicians and ministers
from the ruling party, as also the Congress party and others were present. Once
you see that the judge has amongst his friends these top politicians, he (the
CJI) had to be circumspect and not assign the Sahara-Birla case to a bench
presided by that judge.
That
was the least expected of him, and he did not do it. On the contrary, he
changed benches and reconstituted the Bench to allow Justice Mishra to preside
and sent the matter there. (Earlier I had written an article about Justice
Mishra’s friendship with the Chief Minister of Madhya Pradesh, one of the
recipients of alleged payments in Sahara Diary and his attending Justice
Mishra’s nephew’s wedding in Gwalior, away from Bhopal on December 10th, while
the matter was actually being heard by him and Justice Khehar.)
There
is no doubt about the fact that the Sahara-Birla case was an extremely
explosive case. It was so serious that it demanded a 5-judge bench of the
senior-most judges of the Supreme Court to hear it.
However,
as is evident from the judgment in that case, the approach of the judges shows
that they have neither appreciated the seriousness of the matter nor have they
really understood the legal position; they have completely forgotten their
constitutional obligation.
They
have been completely overawed by the fact that the persons against whom
allegations have been made, particularly the Prime Minister, are constitutional
functionaries. Nobody is above the Constitution. And if the allegations are
true, then everybody has to face the music. But the truth of those allegations
have to be ascertained by an extremely independent investigation.
My
own feeling is that the manner in which the matter was handled and the
judgement itself was perhaps to protect the Chief Justice himself, so that no
constitutional functionary is proceeded against without cogent material. That
is really something which is bothering me deeply.
PS:
What was the logic of converting the letter into a writ petition and AK Goel
and Justice UU Lalit?
DD:
The Supreme Court has laid down one principle of administrative law, which must
equally apply to judges – that no man can be a judge in his own cause.
Therefore,
there is no doubt in my mind that Chief Justice Khehar committed a gross
judicial impropriety by dealing with that letter; and by directing that letter
to be converted into a writ petition; and then listing it before a particular
bench.
By
dealing with it in the manner he did, I think he has raised more doubts about
the allegations contained in the suicide note rather than actually giving
answers to them.
Justice AK Goel
PS: We understand that during the argument in court, you kept asking for
Justice Goel’s recusal?
Justice AK Goel
PS: We understand that during the argument in court, you kept asking for
Justice Goel’s recusal?
DD:
I don’t know what Justice Goel wanted to do. I was very clear in my mind that I
did not want the judges to deal with the matter because Mrs. Pul had not sought
a judicial relief. So, the Chief Justice had no authority to convert that into
a petition on the judicial side without her consent.
In
this case, I genuinely felt that the Bench was not likely to give justice
fairly because of the connection between Justice Goel and the CJI. I am
entitled to request him to recuse and I am really shocked that despite repeated
requests, Justice Goel refused.
PS:
Do you think the independence [of the judiciary] is being compromised?
DD:
Well, I am not sure what has happened. But, there is no doubt that something
seems to have happened – to try and ensure that a quiet burial is given to two
of the most sensitive matters in our public life raises very serious questions,
which I don’t think can be answered for a long – long time.
PS:
There are also rumours that Mrs Pul has some political ambitions.
DD:
Even if she has some political ambitions, there is nothing wrong about it. The
fact of the matter is that a former Chief Minister of a state has committed
suicide and has left a suicide note that raises very serious allegations against
very powerful people. Nobody is saying that the suicide note is correct. But
the nation expects that some action must take place. So, an independent SIT,
which is monitored by 5 of the senior most judges of the Supreme Court, has to
be constituted. Only then can something happen.
PS:
And do you see that happening?
DD:
I don’t see anything happening in this country, everything can be easily put
under carpet. We are not a democracy in the real sense. We are increasingly
becoming a banana republic. I am sorry to tell you that not many Seniors are
willing to stand up and condemn. Top Seniors, who would otherwise love to issue
statements on anything and everything, should have got together and issued a
statement condemning Chief Justice Khehar’s conduct in this case. Why is it not
happening? I heard rumors that some Seniors are advising the Chief Justice. If
that is true, then those lawyers must stop appearing in this court.
Uttarakhand chief justice not
elevated “under govt pressure”: Demand to make public dissenting note
Well-known legal rights organization, Campaign for
Judicial Accountability and Reforms (CJAR), has said that Justice KM Joseph’s
non-elevation to Supreme Court judge is linked with his “bold decision striking
down the imposition of President’s rule by the Centre in Uttrakhand last year.”
Alleging that the decision not to elevate the Uttarakhand chief justice “has been influenced by pressure from the government”, CJAR has demanded that the full text of Justice J Chelameswar’s dissenting note to the collegium objecting to the non-elevation of Justice Joseph be “put in public domain.”
Alleging that the decision not to elevate the Uttarakhand chief justice “has been influenced by pressure from the government”, CJAR has demanded that the full text of Justice J Chelameswar’s dissenting note to the collegium objecting to the non-elevation of Justice Joseph be “put in public domain.”
One of the most influential legal rights organization of
India, those associated with CJAR include top Supreme Court advocate Prashant
Bhushan, former former judges PB Sawant and H Suresh, well-known Magsaysay
winning writer Aruna Roy, senior right to information activist Nikhil Dey,
other senior activists, experts and lawyers.
Says a CJAR, “As a member of the Supreme Court
collegium, while Justice Chelameswar has not disagreed with the names of the
five other judges that have been proposed for elevation to the Supreme Court,
his criticism that Justice Joseph has been sidelined, is right and justified.”
This is the first time in the annals of the Supreme Court collegium that a member has written a dissent note. Normally such views are conveyed orally.
This is the first time in the annals of the Supreme Court collegium that a member has written a dissent note. Normally such views are conveyed orally.
“We regard Justice Jospeh to have had an outstanding
record as an independent judge of high integrity and holding secular views. His
being sidelined is surprising since his name for elevation to the Supreme
Court, was even recommended by the previous collegium headed by Justice TS
Thakur”, CJAR insists.
Pointing out that “transparency in the working of public functionaries, both the judiciary and the government, is critical in a democracy”, CJAR says, “It is ironic that there has been complete opacity from both these institutions” about “disclosing a draft of the memorandum of procedure for appointments to the High Court and Supreme Court.”
Pointing out that “transparency in the working of public functionaries, both the judiciary and the government, is critical in a democracy”, CJAR says, “It is ironic that there has been complete opacity from both these institutions” about “disclosing a draft of the memorandum of procedure for appointments to the High Court and Supreme Court.”
“The process has been shrouded in secrecy, excluding
public participation in this crucial process”, CJAR says, adding, “There have
only been leaked media reports and speculations on certain contentious clauses
in the memorandum that have been going back and forth between the government
and the judiciary.”
Contending that “repeated requests from CJAR for a draft
of the memorandum to be shared” have received “no response”, CJAR asks the
Supreme Court chief justice JS Khehar to make public the memorandum, which is
being how finalised by the judiciary.
Five Questions We Have to Ask
Before the Birla-Sahara Payoff Case is Buried Forever – BY PRASHANT BHUSHAN
The time has come for the judges of the
Supreme Court to sit together to apply their minds and devise a way for these
serious documents to be thoroughly investigated.
Corruption
continues to remain one of the most serious problems of our society.
Narendra Modi and the Bharatiya Janata Party won the 2014 Lok Sabha election
riding on the back of the anti-corruption campaign and promising a government
which would swiftly deal with corruption and the problem of black money. The
reality however, seems far from what was promised.
In
October 2013, the income tax (IT) department and the Central Bureau of
Investigation conducted simultaneous raids at various establishments of the
Aditya Birla group of companies. In these raids, cash worth Rs 25 crore was
recovered from their corporate office in Delhi along with a large number of
documents, note-sheets, informal account books, emails, computer hard disks and
the like. The CBI quickly handed all the papers over to the IT department,
which did an investigation in this matter. The department questioned the DGM
accounts, Anand Saxena, who was the
custodian of the cash which was recovered. He said that the cash was received
by the company from various hawala dealers, who used to come almost daily or
sometimes on alternate days and give Rs 50 lakhs or 1 crore in cash. The
IT department also questioned one such hawala dealer whom Anand Saxena had
mentioned, and this dealer also admitted that he had been doing that.
Saxena
also said that this cash would thereafter be delivered to certain persons,
specified by the group president, Shubhendu Amitabh. And apart from himself,
four other senior officer – whom he named – were deputed to deliver the cash.
Saxena further said that he did not know the purpose behind the cash
payments to those persons.
From
‘Gujarat CM’ to ‘Gujarat Alkalis and Chemicals’
Some
of the documents noting the cash received and payments made were in the
handwriting of Anand Saxena, which indicated Rs 7.5 crores paid to the ministry
of environment, with the noting of “(Project J)” scribbled next to the
entry. The documents also showed various other payments for environmental
clearances of Birla projects. The dates of these payments could easily be
correlated with the environmental clearances obtained for these projects.
The
emails recovered from the computer of Shubhendu Amitabh revealed a number of
messages which indicated payments to various DRI (Directorate of Revenue
Intelligence) officials for the purpose of slowing down/dropping
investigations, which the agency was conducting against the
under-invoicing of coal exports and other irregularities by the Birla group of
companies.
Amitabh’s emails
also contained one cryptic entry which said “Gujarat CM 25 crores (12 paid rest
?)”. When he was questioned about this entry, he said that ‘Gujarat CM’ meant
‘Gujarat Alkalis and Chemicals’. When asked as to whether there was any other
place where he had referred to Gujarat Alkalis and Chemicals as ‘Gujarat CM’,
Amitabh could not answer. He also could not produce any
document which could indicate any dealing between Gujarat Alkalis and
Chemicals and the Birla group for Rs 25 crores.
The
IT department then prepared a detailed appraisal report in which
it concluded that the explanations given by Shubhendu Amitabh about the
various payments etc. were not believable and that this matter needs to be
further investigated. Unfortunately however, the department did not send the
matter to the Central Bureau of Investigation for investigation under
the Prevention of Corruption Act – even though the payments to DRI officials,
the environment ministry and ‘Gujarat CM’ etc prima facie, all appeared to have
been made to public servants, which constitute offences under the Prevention of
Corruption Act. The CBI would have been the designated investigating agency for
this investigation.
It
is not surprising that the UPA government of Manmohan Singh – which was in
power when the Birla raid and recoveries took place – did not have
this matter pursued, because most of the payments mentioned in the diaries
were for officials of the UPA government. However, even after coming to
power, the Modi government, which obviously was in the know of this IT
department investigation, did not pursue the matter. Modi in his election
rallies at several times mentioned the “Jayanti tax”, which had to be paid by
companies for environmental clearances to then environment minister, Jayanti Natarajan.
And any investigation of the recovered papers from Birla would have
substantiated that. The reason for Modi’s reluctance to probe the Birla papers
can only be attributed to that one entry – of ‘Gujarat CM’ for 25 crores –
which any reasonable person would assume referred to him, for he was the
‘Gujarat CM’ at the time the Birla people made their noting.
The
Sahara smoking gun
In
November 2014, while the Modi government was in office, the IT department
raided the Sahara group of companies. In this raid, Rs 137 crore in cash was
recovered from the corporate office, along with several computer spreadsheets
and note sheets. These recovered documents also showed payments made to public
servants. One particular spreadsheet mentioned in detail the dates, amounts and
sources from which a total of Rs 115 crore in cash was received during the year
2013 to 2014, with the transactions being on 40 to 50 different days. On the
other side was the disbursement of this cash (Rs 113 crore out of this 115
crore, to be precise) to various people. The disbursement details were
consummate and exhaustive as they contained the dates, the amounts, the person
who was paid the cash, the place where it was paid as well as the person who
went and delivered the cash. In this spreadsheet, the largest recipient with
nine entries against his name was ‘Gujarat CM Modi Ji’. As per the entries, he
was paid a total of Rs 40 crore in nine instalments. The second biggest
recipient was the Madhya Pradesh chief minister Shivraj Singh Chouhan, with Rs
10 crore on two dates. There are also payments of Rs 4 crore to the
Chhattisgarh chief minister and a payment of Rs 1 crore to the Delhi chief
minister (who was Sheila Dixit at that time), among other people. Other
recovered note sheets contain details of payments made in 2010 to various
persons.
Each
of these documents was seized and signed by the IT officials, two
witnesses and an officer of Sahara. However, again, despite the highly
incriminating nature of these documents, the IT department, shockingly, did not
hand these over for investigation to the CBI under the Prevention of Corruption
Act.
The
IT department appraisal report on this is still not available, but we get a
hint on what it concluded on the matter from the order of the Income
Tax Settlement Commission, which came thereafter. The Sahara company
had moved the Settlement Commission for settling the case with the IT
department under Section 245C of
the Income Tax Act. One of the issues before the Settlement Commission was
whether or not the payments mentioned in the spreadsheets should be
added to the income of Sahara as undisclosed income. The IT department in
its statement said that these payments were clearly genuine since (a) these
were accounts maintained over a period of time, (b) that the cash received
shown in the spreadsheets matched with the ledger entries of MarCom – the
Marketing Communication Company of Sahara. This meant that the dates on which
cash was withdrawn from MarCom matched the dates and amounts on which the cash
is seemed to be received on these spreadsheets from MarCom. And (c) that the explanations
given by Sahara – which sought to question the validity of
these documents – were contradictory and did not appear to be correct.
It
was clear, therefore, that Sahara had not come with clean hands and yet the
Settlement Commission absolved Sahara of all criminal liabilities under
the Income Tax Act by asking the company to pay tax of a thousand odd
crore rupees on their concealed income.
Even
more interestingly, this case was decided by the Settlement Commission in record time –
in virtually three hearings in less than three months, with the ruling coming
on November 10, 2016. It was also settled by just two members of the commission
since the third member had been transferred out by the government.
Enter
Chowdary the CVC
For
a long time, these documents remained buried within the Income Tax department
and eventually surfaced sometime towards the end of 2016, which was when I
received copies. They showed prima facie offences under the Prevention Of
Corruption Act, which needed a thorough investigation in accordance with the
Supreme Court judgement of the Jain hawala case,
where the recovery of cryptic entries in a diary – which only mentioned
initials and amounts paid – was held by the Supreme Court to be enough to merit
a thorough court-monitored investigation. It is another matter that despite this
ruling, the CBI in its investigation into the Jain diaries did not
examine the assets of the public servants involved and filed the chargesheet
only on the basis of the diaries recovered and thereafter this chargesheet was
quashed by the Delhi high court on the grounds that diaries by
themselves cannot be enough evidence for prosecuting anybody.
When
I received the Birla-Sahara documents, I also noticed that the person in charge
of the income tax investigations was K. V. Chowdary, who, at the relevant
period was holding the charge of member, investigations, in the IT department.
In June 2015, he was appointed by the Modi government as the country’s
Chief Vigilance Commissioner (CVC). This appointment was challenged by Common
Cause in the Supreme Court on various grounds – of scuttling tax investigations
and also being involved in the “Stock Guru” scam, in which IT officials working
under him were found to have taken crores in bribes from Stock Guru company in
return for favours from the IT investigation department.
As
counsel for Common Cause, we then decided to raise the Birla-Sahara
papers issue in the pending case challenging the appointment of Chowdary
itself, since the IT department’s decision to withhold these documents and not
send them to the CBI for criminal investigation constituted a serious
dereliction of duty on Chowdary’s part.
Knocking
on the Supreme Court’s door
This
application was heard in the Supreme Court on November 26, 2016 by a bench of
Justice J.S. Khehar and Justice Arun Mishra.
In
the hearing Justice
Khehar said that these documents do not constitute any evidence
for investigation and asked us to come back with better evidence. Just before
the next date of hearing, I received the three volume Income Tax appraisal
report from the Birla case and on that date I pleaded with the court that I
should be given more time to analyse the appraisal report and file additional
evidence. The court was reluctant to grant additional time and put up the
matter to be heard only two days thereafter. By this time, however, the
appointment of a new chief justice was coming close. Justice Khehar was the
next in line of seniority but the clearance of his name had still not been
given by the government despite his name having been recommended by the
outgoing chief justice. I told the court in the hearing that it would not be
appropriate for it to push through with the hearing of this matter at a
time when Justice Khehar’s appointment file is pending with the prime
minister, since this case also involved investigations into the payments made
to the prime minister as well. After showing some resentment and anger, the
court reluctantly adjourned the matter to January 11, 2017.
Justice
Khehar was sworn in as chief justice on January 4, 2017. On January 11, two
senior judges who would normally have headed benches in the Supreme Court were
made to sit with even more senior judges and a new bench was created headed by
Justice Arun Mishra (who would not otherwise be heading a bench), with Justice
Amitava Roy as the puisne judge. The Birla-Sahara matter was sent to this
bench. The judges heard the matter at some length, and finally passed an order
saying that since these were not regular books of accounts, therefore, in
accordance with the Supreme Court judgement in the Jain hawala case, these did
not constitute evidence on the basis of which any investigation could be
ordered. In particular, they said that high constitutional functionaries cannot
be subject to investigation on the basis of such loose papers. They also used
the order of the Settlement Commission to say that the Settlement Commission
did not find any proof of these documents being genuine and hence they did not
represent the true state of affairs.
A
little later, we discovered that while this case was being heard by Justice
Arun Mishra along with Justice Khehar, Justice Misra had celebrated the wedding
of his nephew from his official residence in Delhi as well as his residence in
Gwalior. We were informed of this by Dushyant Dave, former president of
the Supreme Court Bar Association, who had also attended the wedding reception.
He stated that a large number of BJP leaders were present at the event. A
photograph of Shivraj Singh Chouhan, the chief minister of Madhya Pradesh,
attending the reception at Gwalior also appeared in a newspaper. This is significant
because Chouhan was one of the alleged recipients of money in the Sahara
spreadsheets – the very matter Justice Mishra was considering in court.
The
Supreme Court has laid down a code of conduct which says that judges should
maintain a degree of aloofness, consistent with their status – which means that
they should obviously not socialise with politicians whose cases are likely to
come up for hearing before them. It also says that judges should not hear and
decide cases involving their friends and relatives. Putting these two together,
it is obvious that if a judge invites politicians for personal functions at his
residence, it can be safely assumed that these politicians are his personal
friends and that the judge must not hear and decide cases involving them.
Kalikho
Pul’s suicide note, the missing link
Shortly
after the dismissal of our application, The Wire on February 8, 2017, made public the 60-page suicide note of the late
Arunachal Pradesh chief minister Kalikho Pul. Kalikho Pul committed suicide on
August 9, 2016, barely three weeks after he was unseated by a judgment of a
constitution bench of the Supreme Court headed by Justice Khehar and Justice
Dipak Misra. In his suicide note, which was found with his hanging body, and
signed and initialled on every page, Pul details the alleged corruption of
various politicians as well of persons closely related to senior members of the
judiciary. In particular, the note shows that he is especially anguished at the
corruption of the judiciary. He says that prior to the Supreme Court’s judgment
in the case, which quashed president’s rule in Arunachal Pradesh and removed
him from office, a demand of Rs 49 crore was made for a favourable judgement by
Justice Khehar’s younger son Virendra Khehar. He also mentioned that another
demand of Rs 37 crores was made by Aditya Mishra, described as the brother of
Justice Dipak Misra, for a favourable judgement.
This
suicide note contained a number of very serious allegations of corruption which
obviously needed investigation, for which Pul’s eldest wife, Dangwimsai
Pul, had been making requests to the government. However, the note remained
uninvestigated and its copies were kept tightly under wraps and not made
available to anybody.
The
then governor of Arunachal Pradesh, J.P. Rajkhowa, himself went on record to
say that he had recommended a CBI investigation into the very disturbing
charges made in Pul’s suicide note. However, it still remained
uninvestigated. And it was only in early February that a copy of this suicide
note was obtained and published by The Wire, which published this note in
the original Hindi and
in an
English translation, after redacting the name of the judges
mentioned in the note. The unredacted note was thereafter published
by the Campaign for Judicial Accountability and Reforms (CJAR) in the interest
of transparency and to prevent the spread of rumours about the identities of
the redacted names.
The
questions that remain
The
manner in which the Supreme Court buried the Birla-Sahara diaries investigation
and the manner in which the government suppressed the suicide note of Kalikho
Pul and did not order any criminal investigation into the matter, raise several
disturbing questions:
1. Was Chief
Justice J.S. Khehar aware of the Kalikho Pul suicide note and that this note
mentioned his name, thus raising allegations about a cash for judgment
scam?
2. Was
Pul’s suicide note the reason that Chief Justice Khehar transferred the
case deliberately to a bench headed by Justice Arun Mishra?
3. Was
Justice Khehar aware of Justice Arun Mishra’s close ties with the BJP leaders?
4. Did the
proximity of Justice Arun Mishra to the BJP – and in particular to some of the
people specifically mentioned in the Birla-Sahara diaries as a recipient of
black money (such as Shivraj Singh Chouhan, the chief minister of Madhya
Pradesh, have a bearing on the decision to finally not order an
investigation?
5. Was the
Kalikho Pul suicide note used as an instrument by the government to put
pressure on the judges hearing the Birla-Sahara case?
6. Did the
Modi government decide to ignore Kalikho Pul’s suicide note (despite
the fact that it contains serious charges of corruption against Congress
leaders and the two senior most judges of the Supreme Court) so long as the
judiciary does not order an investigation into the Birla-Sahara payoffs ?
It
is a fundamental principle in law that even a reasonable apprehension of bias
in the minds of the litigants constitutes a violation of natural justice and
renders the judgment a nullity. The content of the documents recovered in the
Birla-Sahara raids as well the contents of the Kalikho Pul suicide note
are amongst the most lethal revelations of political corruption in the
country and they raise questions about the highest constitutional
positions in our country – the prime minister and the chief justice of India.
In hardly any case does one obtain documentation which mentions in such detail,
the payments made of large sums of money to political personalities and
officials. The Kalikho Pul suicide note, in particular, is like a dying
declaration and that too of a chief minister, which must be treated very
seriously in law because of the jurisprudential maxim ‘nemo
mariturus presumuntur mentri’ i.e. a man will not meet his
maker with a lie in his mouth.
The
people of India have known for a long time the pervasive and rampant corruption
in the polity. Narendra Modi claimed to be above all this, but the Birla
and Sahara documents suggest otherwise. The Kalikho Pul suicide note has shaken
the faith of the people in the integrity of the highest levels of our judiciary.
Burying the Birla-Sahara documents and the Kalikho Pul suicide note without
investigation will not make the public suspicion go away. In fact, it would
only strengthen those suspicions and irredeemably erode the fate of the people
in the integrity of Modi and the judiciary. It is imperative, therefore,
that the contents of these documents are subjected to thorough and
credible investigation. In fact, they pose one of the most serious challenges
in independent India for the judiciary itself.
The
time has come for the judges of the Supreme Court to sit together to apply
their minds and devise a way for these serious documents to
be thoroughly investigated. Nothing less than this is going to the restore
the shaken faith of the people of this country in the highest political and
judicial offices of this country.
Supreme
Court averse to Transparency
By M.J.Nedumpara
While the government often comes under fire for not
effectively implementing the RTI Act, few have noticed that India’s highest
court violates the Act routinely, and with an impunity that makes the
government’s evasion of the RTI Act seem benign.
Consider the following:
· On
20th February 2008, Satnam Singh, a prisoner in Ludhiana’s Central Jail
sent a Right to Information (RTI) request to the Supreme Court (SC) asking for
a copy of its guidelines on police reforms. The Public Information Officer
(PIO) of the SC denied the request and referred Singh to the SC website. Singh
filed a first appeal pointing out that as a prisoner, he had no access to a
computer, and that, by not sending him the information, the SC was denying him
his right. Hearing the appeal, the Registrar, SC too denied the request, now
asking him to apply under the Supreme Court Rules 1966, instead of the RTI Act.
· On
10th November 2007, Subhash Chandra Agrawal filed an RTI request with the
SC asking for information concerning declaration of assets by Supreme Court
Judges, among other things. The PIO denied the request, claiming he did not
hold the information. Agrawal filed a first appeal asking that his application
may be transferred to the Public Authority holding the information. The
Registrar asked the PIO to re-consider the request, but he denied the
information again. Agrawal moved the Central Information Commission (CIC) which
in January 2009, asked the PIO to furnish the
information [PDF].The SC challenged this order twice before the
Delhi High Court (HC) even as it made some information about judges’ assets
public on its website, but the HC upheld the CIC’s ruling.
· In
2007, N. Anbarasan filed an RTI request before the Karnataka High Court (HC)
for information pertaining to the scrutiny and classification of writ
petitions, among other things. The PIO denied the information and asked
Anbarasan to apply under the Karnataka HC Act and Rules. Anbarasan approached
the Karnataka Information Commission (KIC), which ruled in his favor. The PIO
challenged the KIC’s order before the HC, which quashed it. Subsequently, AKM
Nayak, the State Chief Information Commissioner, and a former Additional Chief
Secretary, appealed against the HC ruling before the SC. The SC not only
dismissed the appeal but fined Nayak 1 lakh rupees for “wasting public money for
satisfying their ego.” [PDF]
Although the SC frequently agonises over governments’ lack
of transparency, its own Registry has steadfastly resisted yielding information
under the Act. In the past decade of the Act’s existence, the SC has fought
many RTI applicants tooth and nail, forcing them to the stage of second appeal.
Where the CIC has ruled in favor of the applicants, the SC has typically
challenged its decisions before the Delhi HC.
The SC has fought these battles not for some significant
intrusion of transparency, but for routine matters such as providing pendency
figures: for example, the applicant who sought this information in 2009 had to
wait until 2014 just to get the Delhi High Court to rule that the
[PDF] SC may provide the information.
I was unaware of the SC’s hostility towards the RTI Act,
until two years ago, when I called the office of the Assistant Registrar &
PIO to confirm the address where I should send an RTI request. For my research,
I wanted a copy of the affidavits filed in a public interest litigation (PIL)
heard by the SC between 1999 and 2004.
The official who answered my call wouldn’t identify himself,
and asked me if I was party to the case. When I answered no, he said, “We do
not provide copies of the judicial record to non-parties,” and hung up. In all
my experience of seeking information under the RTI Act, never before had an
officer declined to provide information so transparently. I called back to ask
how might one access judicial records. The official asked me to look up SC
Rules 1966.
RTI Act vs Supreme Court Rules
As I found out after reading about several RTI cases
involving the SC, referring applicants to its own rules is a significant tool
deployed by the SC to keep the RTI Act at bay. Order XII, Rule 2 of the SC Rules 1966 [PDF] says:
“The Court, on the application of a person who is not a
party to the case, appeal or matter, may on good cause shown, allow such person
search, inspect or get copies of all pleadings and other documents or records
in the case, on payment of the prescribed fees and charges.”
In several ways, this rule gives the SC greater powers to
withhold information from citizens, vis-à-vis the RTI Act. Unlike the RTI act:
· The
rule insists on the applicant providing a reason, and makes the availability of
information contingent upon “good cause shown.”
· It
prescribes no time limit within which information is to be provided.
· It
lists no penalties for delaying or failing to provide the information.
· It
has no mechanisms for appeal.
These inconsistencies have to be resolved in favour of the
RTI Act as per the non-obstante clause provided in Section 22 of the RTI Act.
Yet, I found that the SC has been maintaining that it can deny RTI requests,
and limit citizens to the SC Rules.
The SC, represented by its Assistant Registrar and Registrar
has been relying on two ruses. First, as per the SC Rules, it was “the Court” [PDF]
which could take a decision on admitting requests to access judicial records
and the humble Registrar and the humbler Assistant Registrar could scarcely
usurp the authority of “the Court.” Second was the ruse that the RTI Act, under
Section 6(3), allowed Public Authorities to frame rules to access information
and the SCR were Supreme Court’s Rules to address RTI. By this logic, the
Supreme Court had framed rules in 1966 itself anticipating the RTI Act, which
came after 40 years.
The Role of the CIC
The dispute over RTI and SC Rules came before the CIC as
early as 2006 – a year after the passage of the Act – in the case of Manish Khanna vs. The Supreme Court
of India. [PDF] The
appeal was heard by former bureaucrat and then Chief Information Commissioner,
Wajahat Habibullah. Ignoring the four fundamental inconsistencies listed above,
Habibullah startlingly ruled that there was “no inherent inconsistency” between
the Act and Order XII Rule 2. In his view, Rule 2 merely provided an
“alternative procedure” to access the information without denying it in any way
– ignoring the “on good cause shown” condition.
With this as the foundation, he ruled that the Rule 2 was a
“special enactment,” not superseded by a general law enacted later. This ruling
established the precedent by which the CIC has consistently ruled in favour of
the SC Rules 1966 against the RTI Act.
By my rough calculation, the SC’s refusal to provide
information about judicial records under the RTI Act has come before the CIC
nearly 50 times in the last ten years – this is just counting the cases which
have been decided by the CIC; many more await a hearing. Keeping in mind that
not every applicant has the time, resources and the skills to draft first and
second appeals, one can say that a very large number of RTI requests are being
summarily denied by the SC each year – conservatively speaking about 20
annually. Thus, on the back of this ruling, the SC Registry has found a third
ruse to deny information: citing the precedent set by Habibullah’s ruling.
The only exception to this has been a decision in 2011 by
Information Commissioner Shailesh Gandhi, who observed that Order XII curtailed
the fundamental right of citizens to free information because of the aforementioned
inconsistencies. He ruled [PDF] that
the PIO must provide information subject to the provisions of the RTI Act, and
that it was up to applicants to decide whether they wished to seek information
under the RTI Act or the SC Rules.
The SC instantly moved the Delhi HC against this ruling,
where Justice S. Muralidhar immediately stayed the matter and, further,
restrained the CIC from hearing matters on similar questions. The case remains
pending before the HC. Perhaps to do away with the criticism that rules framed
in 1966 could scarcely be said to address a landmark law enacted in 2005, the
Supreme Court revised its rules in 2013. Under SC Rules 2013, issued in August
2014, Order XII Rule 2 has become Order XIII Rule 2 – with no meaningful
difference for the information-seeker.
Seeking information
Despite the nameless SC officer telling me outright that
they will not provide me with copies of the affidavits I was seeking, I decided
in January 2014 to file my RTI request anyway. For good measure, I requested
the same information under Order XII, Rule 2 as well. It would be one thing if
the SC was providing information to citizens under its own rules, but even that
is not the case, as I found out, and as others have experienced too
[PDF].
The PIO denied my RTI request and asked me to approach the
Court under Order XII Rule 2, which I had already done. This second request got
no reply for over a month, at which point I followed up with the SC over the
phone. After several evasive conversations, an officer finally informed me,
again, that they would not release the information to me. When I asked the
officer for her name so that I may state this position in my first appeal, she
declined and hung up.
I eventually received a reply to my request under Order XII,
Rule 2. The Assistant Registrar (Copying) now insisted that I apply under Order
XII, Rule 2 read with Order X Rule 6(1),
i.e., I present my application for information in person at the filing counter
of the Court. This additional hurdle was entirely new, as the SC had not
mentioned it before the CIC. Moreover, it is entirely inconsistent with the RTI
Act because it limits the availability of information only to those who can
make their way to the filing counter of the SC – not the easiest of tasks for
most citizens, particularly the vast majority of Indians who do not live in
Delhi.
I filed a first appeal before the Registrar, pointing out
that SC had refused information through both the routes, and invented new
hurdles to access information. The Registrar found my appeal “to be without any
merit” and dismissed it. I filed a second appeal before the CIC in July 2014,
which is yet to be scheduled for hearing.
In my experience of filing RTI requests with multiple public
authorities, no government body comes close to the SC in terms of contempt
towards RTI applications. This attitude seems to be pervasive in the higher
judiciary. The summary denials, fighting ordinary applicants before the CIC,
and even hauling them before the Delhi HC suggests that as far as India’s
higher judiciary is concerned, transparency is good for others, not for itself.
Probe CJI for Kalikho
Pul's suicide, his widow petitions Vice-President Ansari
TNN | Updated: Mar 1, 2017,
06.48 AM IST
Giving a new twist to former
Arunachal chief minister Kalikho Pul's
`suicide' note case, his widow Dangwimsai Pul met Vice-President Hamid Ansari on Tuesday, seeking
registration of an FIR and investigation into allegations of corruption against
Chief Justice of India Justice J S Khehar and sitting Supreme Court judge Dipak
Misra.
In her memorandum, Dangwimsai said since the matter involved the CJI and another sitting SC judge, the allegations should be "seriously investigated by a credible investigation team", a Special Investigation Team (SIT), and not a government-controlled body. She argued that composition of the SIT should be left to 3-5 judges, next in seniority to CJI Khehar and Justice Misra. The 60-page 'suicide note' of Pul, who committed suicide on August 9 last year in his official residence in Itanagar, allegedly contained details of several allegations of corruption against politicians and judges, as also against President Pranab Mukherjee.
In her memorandum, Dangwimsai said since the matter involved the CJI and another sitting SC judge, the allegations should be "seriously investigated by a credible investigation team", a Special Investigation Team (SIT), and not a government-controlled body. She argued that composition of the SIT should be left to 3-5 judges, next in seniority to CJI Khehar and Justice Misra. The 60-page 'suicide note' of Pul, who committed suicide on August 9 last year in his official residence in Itanagar, allegedly contained details of several allegations of corruption against politicians and judges, as also against President Pranab Mukherjee.
According to the purported diary, captioned "Mere Vichar", of the former Arunachal CM, Pul blamed his suicide on corruption among Congress leaders of Arunachal and the judiciary which unseated him. Saying that her husband was under depression after his removal as CM and that 'Mere Vichar' was actually his suicide note, Dangwimsai told the vice-president: "Given the gravity of the allegations contained in the note and the fact that many of them are from his personal knowledge and that a suicide note is treated like a dying declaration, this matter needs to be seriously investigated by a credible investigation team. However, since it also involves the CJI and another sitting judge of the Supreme Court, to protect the independence of the judiciary , it should not be investigated by an investigative body controlled by the government."
Dangwimsai was accompanied by activist-lawyer Prashant Bhushan, his Swaraj Abhiyan colleague Yogendra Yadav, bureaucrat-turned-activist Harsh Mander and RTI campaigner Anjali Bhardwaj. Her move to meet the vice-President followed her decision to withdraw from the SC her petition seeking a CBI probe into the death.
Talking about the independence of the judiciary,
Dangwimsai's memorandum said, "It was to protect the independence of the
judiciary that the SC in Veeraswami's case said that any allegations against
the sitting judges of the higher judiciary can only be investigated by an
investigating authority after obtaining the prior permission of the Chief
Justice of India." It further said, "The judgment says that in case
there are allegations against the Chief Justice, the President will consult
other judges. This, in terms of the spirit of the judgment, would mean the
judgejudges next in seniority ."
The letter said, "Since in this case, the allegations are also against the sitting CJI and sitting President, I am therefore addressing this request to you (Vice-President) to exercise the authority which normally the President would have exercised in terms of the Veeraswami's judgment."
Editorial : Jail CJI
Khehar
- Few
Judges deserve Contempt NOT Respect
Legally prosecute and send CJI
Khehar to Jail. Covering up crimes is also a crime.
He and his predecessors are covering up crimes.
Justice Karnan was
convicted for “Contempt of Court” , in a super fast manner. Why NOT
Supreme Court Judges who have committed anti national crimes , sex crimes
, etc are not punished in such a super fast manner since
years ? Why Supreme Court Judges are NOT punished for “Contempt of
Court , contempt of constitution of India , Contempt of
Citizens “ since years ? Are these people Judges or Dictators ?
CJI Khehar Murders Justice
& Truth
Few judges even
after committing crimes are escaping from legal prosecution. They are not
allowing RTI replies , enquiry , investigation into their crimes ,
illegal actions. Therefore they cann’t be legally prosecuted and convicted in a
court of law. As a result by farce they are innocent , technically
innocent till proven guilty.
We have highest respect for
all constitutional offices including courts of law , office of judge.
However we have utter CONTEMPT towards few corrupt
individuals occupying those honourable offices. Respect towards a Judge
comes involuntarily in a citizen , when he sees that judge performing his
constitutional duties honestly , bringing glory to the office. A corrupt
judge himself is the first contemnor of his own office , who
shows disrespect to his office by working against law. By fear of contempt law
, fear of imprisonment a corrupt judge will not get respect ,
he will get a mechanical salutation from citizens but inside
citizen’s heart there will be utter contempt towards the corrupt judge.
Judges don’t behave like
dictators , you are accountable to people as you are surviving on people’s
money. Remember You are inferior to our motherland india and our
constitution.
Judges Smother
Truth about ex Arunachal CM’s Suicide : Justice Karnan to President
The Supreme Court of India refused to
recall the arrest order against sitting Calcutta High Court Judge Justice
Karnan, who has been found guilty of contempt of court by a seven-judge bench
headed by the Chief Justice of India.
Justice Karnan, on May 12, had sought
a review of his conviction and six-month jail sentence.
"We won’t allow you to stop
court proceedings like this, you have been doing it repeatedly," CJI JS
Khehar told Justice Karnan’s legal aide Mathews Nedumpara on Monday.
Justice Karnan became the first
Indian judge to be convicted, after incidentally also being the first judge to
be summoned by a court. On May 9, Justice Karnan was sentenced to six months’
imprisonment after he failed to appear before court in a contempt case against
him.
“We are punishing him for contempt of
Indian judiciary as well as judicial process and his act was of greatest nature
of contempt,” the seven-judge bench headed by Chief Justice JS Khehar had said.
SC gives 6 month jail term to Justice
Karnan for contempt, orders media gag on his statements
The West Bengal DGP was tasked with
carrying out the arrest of Justice Karnan “immediately” but Justice Karnan had
evaded arrest until Monday morning and has remained at large. Searches were
carried out at his Kolkata residence and in parts of Chennai and Tamil
Nadu-Andhra border by several senior police officials from different states.
There were rumours doing the rounds that he had left the country or he would
appear before the SC himself.
Meanwhile, Justice Karnan on Monday
wrote a letter addressed to President Pranab Mukherjee, that was also addressed
to Vice President Hamid Ansari, Prime Minister Narendra Modi, Lok Sabha Speaker
Sumitra Mahajan, MPs and to leader of all political parties.
‘Committed no offence’
In his three-point letter, Justice
Karnan alleges that his impeachment and imprisonment is “without authority of
law” and goes on to level allegations of corruption against the Chief Justice
of India JS Khehar. While arguing that he committed no offence, the HC judge
goes on to observe that the Supreme Court ‘usurped’ the jurisdiction invested
in the parliament” and his trial was held without charges being framed.
Justice Karnan alleges that the order
by the seven-judge bench of the apex court was a “violation of the
Constitution” in addition to “the usurpation of the jurisdiction of
parliament”.
As per Article 217 of the Indian
Constitution, a judge can be removed by an order of the President passed after
both Houses of Parliament vote for their removal on grounds of proven
"misbehaviour" and "incapacity". And this vote must be by a
two-thirds majority, where at least 66% of the member who are present and
voting must vote for their removal.
“The President of India appointed me
as a judge and the President alone could have removed me and that too upon an
impeachment motion which has received the ⅔rd majority of the members of Parliament. But I am not
only impeached, but even being sent to the jail without any such impeachment
motion against me, by a mere judicial order of a 7 judges bench,” he writes.
Reiterating that he committed no
offence, Justice Karnan says that all he did was to raise the “little voice
from within” against corruption in the higher judiciary. In January, he had
written a letter to PM Modi accused various judges and officers of the Madras
High Court of corruption in. He also added that if central agencies probe the
matter, his charges could be proved too..
Justice Karnan goes on to level more
charges, alleging that in the suicide note left behind by former Arunachal
Pradesh CM Kalikho Pul, he accused CJI Khehar and SC judge Justice Dipak Misra
of “venturing to sell justice for a huge sum running into crores” through their
relatives. However, he claimed that no FIR has been registered and
despite efforts to file a writ petition in the Delhi High Court, no case has
been listed.
He concludes his letter writing, “I
part with the unstinted faith that the two issues…my impeachment and
imprisonment without authority of law and allegations of corruption against
incumbent Hon'ble Chief Justice of India will be looked into, which I believe
is the solemn duty of your excellencies.”
Former SC judge approached me
on behalf of CJI: Dave
The CJI had ordered the letter to be listed as a writ petition before a bench of Justices A K Goel and U U Lalit.
At the high-wattage hearing on Thursday with the CJI at its centre, Dangwimsai's counsel Dushyant Dave made the sensational claim that a former SC judge had approached him on Khehar's behalf. He also questioned the decision to turn the letter into a writ petition to be disposed of by the SC when his client had sought an administrative inquiry, as also the choice of Justices Goel and Lalit to hear the petition
Dangwimsai's letter cited the SC's 1991 judgment in the Veeraswami case where the apex court had ruled that SC and HC judges could be probed for corruption but only with the prior permission of the CJI.
The Constitution bench ruling had also said, "If the Chief Justice of India himself is the person against whom the allegations of criminal misconduct are received, the government shall consult any other judge or judges of the Supreme Court."
Dangwimsai's letter had said, "I am sure you (the CJI) will have the matter placed before the appropriate judge in accordance with the judgment in the Veeraswami case for consideration of my request."
Dave raised a series of questions and levelled many allegations. "Why was Dangwimsai's letter converted into a criminal writ petition? Why was it put up for hearing in open court for a judicial decision when the CJI was expected to take a decision on the administrative side? Is the CJI precluded from taking a decision on the letter as the allegations in the suicide note concerned the CJI's son?" Dave asked.
"We had sought an administrative direction, why was it taken on the judicial side? We want to know the reason behind it. There was a development on Monday evening. A former judge of the Supreme Court met me on behalf of the CJI. I do not want to say more. I beg your lordships to stay away from this case," Dave urged the bench of Justices Goel and Lalit.
The CJI had ordered the letter to be listed as a writ petition before a bench of Justices A K Goel and U U Lalit.
At the high-wattage hearing on Thursday with the CJI at its centre, Dangwimsai's counsel Dushyant Dave made the sensational claim that a former SC judge had approached him on Khehar's behalf. He also questioned the decision to turn the letter into a writ petition to be disposed of by the SC when his client had sought an administrative inquiry, as also the choice of Justices Goel and Lalit to hear the petition
Dangwimsai's letter cited the SC's 1991 judgment in the Veeraswami case where the apex court had ruled that SC and HC judges could be probed for corruption but only with the prior permission of the CJI.
The Constitution bench ruling had also said, "If the Chief Justice of India himself is the person against whom the allegations of criminal misconduct are received, the government shall consult any other judge or judges of the Supreme Court."
Dangwimsai's letter had said, "I am sure you (the CJI) will have the matter placed before the appropriate judge in accordance with the judgment in the Veeraswami case for consideration of my request."
Dave raised a series of questions and levelled many allegations. "Why was Dangwimsai's letter converted into a criminal writ petition? Why was it put up for hearing in open court for a judicial decision when the CJI was expected to take a decision on the administrative side? Is the CJI precluded from taking a decision on the letter as the allegations in the suicide note concerned the CJI's son?" Dave asked.
"We had sought an administrative direction, why was it taken on the judicial side? We want to know the reason behind it. There was a development on Monday evening. A former judge of the Supreme Court met me on behalf of the CJI. I do not want to say more. I beg your lordships to stay away from this case," Dave urged the bench of Justices Goel and Lalit.
Initially, Dave gave the impression that he was totally against the letter being put up for hearing in open court. Later, he wanted to know if it was to be put up for hearing, then why before a bench headed by a junior judge like Justice Goel, who is number 13 in seniority among the 28 SC judges.
"This letter brings forth a more serious issue than the one raised by Calcutta HC's Justice C S Karnan, which is being heard by a five-judge bench. So, why was a five-judge bench not constituted for this case? Why has it been assigned to a junior judge and not to number three (Justice J Chelameswar) or number four (Justice Ranjan Gogoi) or number five (Justice Madan Lokur)?" Dave asked.
When the bench appeared determined to proceed with the
hearing, Dave said, "You (Justice Goel) were a colleague of the CJI in
Punjab and Haryana HC. You should recuse yourself." Finally, Dave said his
client (Dangwimsai) wanted to withdraw the letter to explore other avenues.
"We will now approach the vice-president for relief as the suicide note contains allegations against the President also. If the Supreme Court decides on the letter after converting it into a writ petition, then all other avenues for remedies will be closed," Dave said. The bench permitted Dangwimsai to withdraw the letter and said the withdrawal would mean that the cause of action initiated by the widow in writing to the CJI had ended.
Edited, printed , published owned by NAGARAJA.M.R. @ # LIG-2 No 761,HUDCO FIRST STAGE ,
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