LAW RESOURCE INDIA

A case of judicial inaction

Posted in CONTEMPT OF COURT, JUDICIAL REFORMS, JUDICIARY, SUPREME COURT by NNLRJ INDIA on December 20, 2010
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BY RAJEEV DHAWAN , IN THE MAIL TODAY

IT ALL started on May 19, 2008, with the murder of V. Jayaraman of Pondicherry, who exposed a University marksheet scam. A Central Bureau of Investigation inquiry indicted a student named Sridharan and his father, C. Krishnamurthy who applied for bail in May 2009 which was before Justice R. Reghupathi. Then, impropriety broke loose. Allegedly, lawyer R. K. Chandramohan met Justice Reghupathi in his chambers in the Madras High Court on June 12, 2009, inviting him to speak to ‘ minister Raja’ over the telephone to let the accused father and son off.

Justice Reghupathi refused to oblige. By June 29, the matter became newsworthy when Chandramohan was reported to have upset court proceedings. Reported in a national daily the next day, the imbroglio stood exposed. Justice Reghupathi himself announced in open court on him being approached by a lawyer on behalf of a Union minister.

Raja

It was certainly the duty of Justice Reghupathi to report the matter to Chief Justice H. L. Gokhale of the Madras High Court. This he did on July 2, 2009. Sadly, Justice Gokhale who could have constituted a bench and issued a notice for contempt to the advocate through whom the minister’s name would have come out did not do so. Instead, Justice Gokhale wrote a letter on July 5, 2009, to the then Chief Justice of India K. G. Balakrishnan, which was dispatched on July 7 with his own covering letter which was duly acknowledged by CJI Balakrishnan. As it happens, the CJI did nothing, taking the view that there was nothing to act on! Subsequently, some action was taken to suspend lawyer Chandramohan.

Difficult though it is to believe, the then chief justices of Madras and India failed to take appropriate action. This total failure on the part of the judiciary does not do it credit. These acts of judicial forbearance would have died a natural death but for the fact that Minister Raja was in the news over the 2G spectrum scam. Media memory is stronger when triggered by whip- lash revivals. The matter resurfaced in December 2010 after 18 months of inaction.

The connecting point was the result of a Public Interest Litigation ( PIL) before the Madras High Court which ruled that action be taken to suspend lawyer Chandramohan. Wounds healed by judicial nonfeasance amounting to misfeasance were reopened. Retired Justice Reghupathi cannot be blamed for inconsistency. In retirement, faced with the new situation, he confirmed not only what he had said in open court in June 2009, but that he had sent everything to CJ Gokhale who had transmitted it to CJI Balakrishnan.

What happened next was an ex- post facto judicial ‘ blame- game’ between the two Chief Justices. On December 14, 2010, Chief Justice Gokhale, now a sitting judge of the Supreme Court, decided to contradict former CJI Balakrishnan who, according to Gokhale had “ given erroneous impression of my ( Gokhale’s) role in the matter.” A press release by a sitting SC Judge against a former CJI is unprecedented.

But its contents were illuminating. He said the former CJI knew from paragraph two of Reghupathi’s letter that Raja was the erring Minister. CJI Balakrishnan also wrote back to apprise CJ Gokhale of parliamentary concern addressed to the Prime Minister. Gokhale did nothing except to affirm that he had already sent Reghupathi’s letter to the CJI. In a sense, CJ Gokhale can be read to confirm that he failed to take appropriate action.

In December 2010, a controversy bordering on farce erupted between Gokhale and Balakrishnan, with Gokhale insisting that the former CJI knew that Raja was the minister in question, Balakrishnan denying this and Reghupathi thanking Gokhale. But whether Balakrishnan knew whether the Minister involved was Raja is mostly irrelevant.

Issues

Four issues stand out. The first is that the controversy was in the public domain. Everyone knew about it. The Prime Minister, parliamentarians, the two Chief Justices, the Madras Bar and, through the media, the general public. The two Chief Justices could have acted but failed to do so. CJ Gokhale was directly armed with the power to issue notices for contempt. CJI Balakrishnan could have used the Nadiad ruling to issue notices or prompted CJ Gokhale to do so. The controversy was allowed to lie fallow by the combined inaction of both Chief Justices. Second, Justice Reghupathi had declared what happened in Court and informed CJ Gokhale. He could not have constituted a contempt bench. That was for CJ Gokhale to do.

Third, CJ Gokhale should have issued notices for contempt. He, and — in some sense — only he had the power and jurisdiction to do so. He need not have passed the buck on to CJI Balakrishnan. But that was easier for him because, presumably, he did not want to ruffle the feathers of the Madras Bar of which lawyer Chandramohan was the President. Any controversy may have blighted his chance for a Supreme Court appointment. Clearly Gokhale’s abnegation does not seem worthy of a Chief Justice even if hitherto, he had a relatively colourless judicial career. Fourth comes CJI Balakrishnan who though from Kerala, was also a former Chief Justice of the Madras High Court with connections in the city. The issue was important enough for him to act.

His forbearance is astonishing. For him now to say that he did not know that Raja was involved is ducking the hook. In terms of his overall responsibility, this was irrelevant. At best, all this would show is that he was not shielding Raja. If so, who was he shielding? And, if nobody, why did he not act? There are things said about CJI Balakrishnan that may not bear repetition. But, his term as CJI is not regarded with enthusiastic commendation. He did not have to wait for Gokhale to act. Nor, indeed, did Gokhale have to wait for Justice Balakrishnan to act.

Judges

It took a PIL to ignite the controversy to effect the suspension of the gobetween lawyer. By this time, the justices have moved on. Reghupathi has retired. Gokhale has become a judge in the Supreme Court. But he thought it fit to make a ‘ holier- than- thou’ press release against Balakrishnan who, in turn had retired as CJI to hold the post- retirement job of heading the NHRC. Everyone is saved precipitous embarrassment though there are calls for Balakrishnan’s resignation from the NHRC. But there is no point denying that the reputations of former Chief Justices Gokhale and Balakrishnan are affected.

Neither discharged their duty. In the Bhattacharya case ( 1995), Justice K. Ramaswami declared that judicial misdeeds could only be cured by complaints to High Court CJs and the CJI. These incidents have made that plea hollow. The judicial record in protecting judicial probity has been embarrassing. As far as the facts are concerned, the situation is aptly described by the poet Tom Gunn: “ Youknow- I- know- you know- I know- you- knew.” The judiciary cannot be trusted to cleanse itself without an objective process that does not depend on the personality of individual Chief Justices. A proper process of appointments and complaints machinery is necessary. In this controversy, the law minister has sided with CJI Balakrishnan. We hope his Bill to create a new machinery to discipline the judiciary and make it accountable for judicial corruption is not half- hearted!

The writer is a Supreme Court lawyer

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