Lessons from the Thomas verdict

Supreme Court of India

R.K. Raghavan IN THE HINDU

The Supreme Court’s verdict pronounced on March 3 on the appointment of Central Vigilance Commissioner P.J. Thomas could not have come at a more appropriate time. Each day seems to bring up a new scam, and this confirms that the nation’s moral fibre is in tatters. Unless this dangerous trend is reversed, India’s future generations will become hostage to a situation where they cannot afford to be even minimally honest. India’s current political leadership of all hues is unequal to the challenge. Their focus is solely on grabbing votes with blatantly false promises and alluring freebies at the cost of the exchequer. Only the judiciary is equipped and empowered to stem the rot, notwithstanding the fact that it has its own internal problems to solve.

There are some uninformed sections that take umbrage at the Supreme Court ‘taking over’ governance. This is an appallingly myopic view. Had the judiciary not intervened as strongly and decisively as it did over the past few months, India would have become the laughing stock of the world. Recent judicial rulings have enhanced the country’s image and sent across the message that it means business in handling the scourge of corruption. Today, the rest of the world is watching India admiringly and enviously for the way it is moving forward in creating knowledge and skills. The country will forfeit this enormous goodwill unless it comes down heavily on those who are robbing its national wealth without any fear whatsoever. The recent judicial decisions, however harsh they may seem, should serve, at least partly, to restore outsider-confidence in India’s resilience and capacity to move ahead on the economic front.

No proof is any longer required to show that the choice of Mr. Thomas was downright arbitrary, illegal and laughable. It was an exercise of executive authority that was questionable, whatever standards you apply. The Supreme Court’s ruling leaves no one in doubt that fundamental facts that should have agitated the minds of those who are authorised by law (read the Central Vigilance Commission Act) to make such a vital appointment were glossed over for reasons of expediency. It is beyond comprehension why the High Power Committee (HPC) chose to wear blinkers. Virtually anybody could have been appointed, except one facing a criminal trial. The clearance by the previous CVC that is touted in defence of Mr. Thomas is but a pro forma requirement that applies to less important jobs in government. It was certainly not applicable to an ‘Integrity Commission,’ as the court has chosen to label the Central Vigilance Commission.

Tale in the notings

The revelation that two members of the HPC were not convinced that the position required a 100 per cent corruption-free individual is, to say the least, sad and dismaying. The records speak for themselves, and the Department of Personnel and Training (DoPT) could not be faulted. Its notings since the year 2000 had made it abundantly clear that Mr. Thomas in fact had a serious problem. This was ignored. Mr. Thomas took the stand in court that the fact that he had been made Secretary to government was proof enough that he was untainted. But he was greeted the very next day with the arrest of the former Telecommunications Secretary, Siddharth Behura, by the Central Bureau of Investigation in connection with the 2G spectrum scam. Integrity is by no means the exclusive preserve of the higher echelons in society, and certainly not the bureaucracy.

The magnitude of corruption in the higher levels of the civil services is actually enormous compared to that in the lower rungs. The arrest last week of the Chairman of the National Aluminium Company and his wife, and the seizure of significant quantities of gold and cash, are testimony to the need for anti-corruption agencies to focus on senior levels of the officialdom with greater aggression. The CBI is doing an admirable job on this front, and it deserves much larger annual accretions in manpower and more incentives to its staff. Their morale needs to be propped up substantially and meaningfully if the government is serious about tackling graft. In Parliament, the Opposition parties should concentrate on this agenda rather than seek to score brownie points over those in government who have grievously erred and lost their reputation for objectivity and clear thinking. This subject can do with a lot less of politics and more time-bound action, in order that everyone in high places would think twice before doing anything that is even remotely dishonest.

Debatable aspects

There are two aspects of the Supreme Court judgment of March 3 that are, however, debatable. The first is the direction that the pool for the choice of a CVC need not be confined to civil servants, and that it should be wider. Will this give heavily politicised individuals who may otherwise be known for their personal integrity, the opportunity to infiltrate the institution? This issue remains in the realm of conjecture. Given the proclivity among those in power or outside to look at every appointment through a political prism, I fear that the provision to appoint even a person who is not a civil servant to the office could become a mischievous tool in the hands of an unscrupulous executive. This direction to expand the zone of consideration will have to be read along with the Supreme Court’s rejection of the plea to make the appointment on the basis of a consensus. Indeed, giving the veto power to one member could stymie the process of selection, and this is not desirable. At the same time, the experience in the case of Mr. Thomas makes you wary of the possible designs of those in power to steamroll the process just to gain political mileage.

Recent events should convince the concerned citizen that maturity and magnanimity do not necessarily go with authority. This is why I would still plump for statutory recognition of the need for a consensus in making the appointment. This may seem preposterous, but is worth a trial. Even if this process leads to several names being rejected and a consequent delay, ultimately the Prime Minister, the Home Minister and the Leader of the Opposition should be able to agree on one name. The CVC’s job is not a fire-fighting assignment. Even if the position remains vacant for several months because of a lack of consensus, the heavens will not fall before an acceptable candidate is found. And there are other members of the Commission who can hold the fort till a chief is appointed. Let us hasten slowly and arrive at a universally acceptable candidate, rather than be saddled with the wrong individual who is surrounded by controversies.

The court judgment reinforces the widespread feeling that the judiciary is the last bastion of Indian democracy. It must be guarded zealously and at all costs. Let not petty minds be allowed to take pot-shots at it. Or else India will surely be on the road to disaster.

Chief Justice S.H. Kapadia will go down in history for his unparalleled courage and candour. He has no agenda except to bring order to a derailed nation. I understand that total reform in the police system — on the lines set out by the court’s landmark decision of September 22, 2006 — tops his wish list. This is heartening. The whole nation, especially the poor, will be ever-grateful to him if only he can achieve this aim before his term ends. Fortunately, he will not have to labour much to do this. He has a ready blueprint on his desk. What he needs to do is to sternly enforce the deadline that he has set for this. Or else the States will continue to dodge reforms, with a view to continuing the misuse of the police force for narrow political ends. In such a situation, most of the Indian police will remain people-unfriendly and dishonest. The distinguished Chief Justice knows that this task brooks no delay, because the victim of crime goes first to the police and only later to the judiciary. This is the crux of the problem.

(Dr. R.K. Raghavan is a former Director of the Central Bureau of Investigation.)

http://www.hindu.com/2011/03/05/stories/2011030552421200.htm

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Institution more important than individual: SC

Supreme Court of India

PUBLISHED FROM THE TRIBUNE

Here are excerpts from the Supreme Court judgement in the CVC case. The ruling was given by a Bench consisting of Chief Justice SH Kapadia, Justice KS Panicker Radhakrishnan and Justice Swatanter Kumar:

THE government is not accountable to the courts in respect of policy decisions. However, they are accountable for the legality of such decisions. On September 3, 2010, the High Powered Committee (HPC), duly constituted under the proviso to Section 4(1) of the 2003 Act, had recommended the name of Shri P.J. Thomas for appointment to the post of Central Vigilance Commissioner. The validity of this recommendation falls for judicial scrutiny in this case.

If a duty is cast under the proviso to Section 4(1) on the HPC to recommend to the President the name of the selected candidate, the integrity of that decision making process is got to ensure that the powers are exercised for the purposes and in the manner envisaged by the said Act, otherwise such recommendation will have no existence in the eye of law.

Vigilance is an integral part of all government institutions. Anti-corruption measures are the responsibility of the Central Government. In Australia, US, UK and Canada there exists a concept of integrity institutions. In our opinion, CVC is an integrity institution.

In the present case, this vital aspect has not been taken into account by the HPC while recommending the name of Shri P.J. Thomas for appointment as Central Vigilance Commissioner. We do not wish to discount personal integrity of the candidate. What we are emphasizing is that institutional integrity of an institution like CVC has got to be kept in mind while recommending the name of the candidate.

The HPC has to take into consideration the values, independence and impartiality of the institution. It has to consider the institutional competence and take an informed decision keeping in mind the vital aspects indicated by the purpose and policy of the 2003 Act. Appointment to the post of the Central Vigilance Commissioner must satisfy not only the eligibility criteria of the candidate but also the decision making process of the recommendation.

Under the proviso to Section 4(1), the HPC had to take into consideration what is good for the institution and not what is good for the candidate. When institutional integrity is in question, the touchstone should be “public interest” which has got to be taken into consideration by the HPC and in such cases the HPC may not insist upon proof.

In the present case, the entire emphasis has been placed by the CVC, the DoPT and the HPC only on the bio-data of the empanelled candidates. None of these authorities have looked at the matter from the larger perspective of institutional integrity including institutional competence and functioning of CVC.

Moreover, we are surprised to find that between 2000 and 2004 the notings of DoPT dated June 26, 2000, January 18, 2001, June 20, 2003, February 24, 2004, October 18, 2004 and November 2, 2004 have all observed that penalty proceedings may be initiated against Shri P.J. Thomas. Whether the State or the Centre should initiate such proceedings or the Centre was not relevant. What is relevant is that such notings were not considered in juxtaposition with the clearance of CVC granted on October 6, 2008.

Even in the brief submitted to the HPC by DoPT, there is no reference to the said notings between 2000 and 2004.

Even in the CV of Shri P.J. Thomas, there is no reference to the earlier notings of DoPT recommending initiation of penalty proceedings against Shri P.J. Thomas. Therefore, even on personal integrity, the HPC has not considered the relevant material.

The system of governance established by the Constitution is based on distribution of powers and functions amongst the three organs of the State, one of them being the executive whose duty is to enforce the laws made by Parliament and administer the country through various statutory bodies like CVC which is empowered to perform the function of vigilance administration.

Thus, we are concerned with the institution and its integrity including institutional competence and functioning and not the desirability of the candidate alone who is going to be the Central Vigilance Commissioner, though personal integrity is an important quality. It is the independence and impartiality of the institution like CVC which has to be maintained and preserved in larger interest of the rule of law. Institution is more important than an individual. In the present case, the HPC has failed to take this test into consideration.

For the above reasons, it is declared that the recommendation made by the HPC on September 3, 2010 is non-est in law. We reiterate that the government is not accountable to the courts for the choice made but the government is accountable to the courts in respect of the lawfulness/legality of its decisions when impugned under the judicial review jurisdiction.

Guidelines of the court

The 2003 Act came into force on and from September 11, 2003. In the present case, we find non-compliance of some of the provisions of the 2003 Act. No reason has been given as to why in the present case the zone of consideration stood restricted only to the civil service. We therefore direct that:

(i) In our judgement we have held that there is no prescription of unanimity or consensus under Section 4(2) of the 2003 Act. However, the question still remains as to what should be done in cases of difference of opinion amongst the Members of the High Powered Committee. As in the present case, if one Member of the Committee dissents that Member should give reasons for the dissent and if the majority disagrees with the dissent, the majority shall give reasons for overruling the dissent. This will bring about fairness-in-action.

(ii) In future the zone of consideration should be in terms of Section 3(3) of the 2003 Act. It shall not be restricted to civil servants.

(iii) All the civil servants and other persons empanelled shall be outstanding civil servants or persons of impeccable integrity.

(iv) The empanelment shall be carried out on the basis of rational criteria, which is to be reflected by recording of reasons and/or notings.

(v) It shall be carried out by a person not below the rank of Secretary to the Government of India in the concerned Ministry.

(vi) The empanelling authority, while forwarding the names of the empanelled officers/ persons, shall enclose complete information, material and data of the concerned officer/person, whether favourable or adverse. Nothing relevant or material should be withheld from the Selection Committee. It will not only be useful but would also serve larger public interest and enhance public confidence if the contemporaneous service record and acts of outstanding performance of the officer under consideration, even with adverse remarks is specifically brought to the notice of the Selection Committee.

(vii) The Selection Committee may adopt a fair and transparent process of consideration of the empanelled officers.

For the above reasons, it is declared that the recommendation dated September 3, 2010 of the High Powered Committee recommending the name of Shri P.J. Thomas as Central Vigilance Commissioner under the proviso to Section 4(1) of the 2003 Act is non-est in law and, consequently, the impugned appointment of Shri P.J. Thomas as Central Vigilance Commissioner is quashed

 

WHOSE AMICUS IS Harish Salve?

Harish Salve

Harish Salve

PUBLISHED IN THE TEHELKA

Can the renowned lawyer do justice to the 2002 Gujarat riot victims while referring business deals to the Narendra Modi government? ASHISH KHETAN has the evidence of impropriety and conflict of interest

THE SPECIAL Investigation Team that was formed by the Supreme Court to reinvestigate the Godhra riot cases has long since failed its mandate. It has been unsuccessful in nailing the senior functionaries of the Gujarat government while being content with the cosmetic arraigning of a few inspectors and VHP members with the sole exception of the arrest of BJP MLA Mayaben Kodnani.

It has been left to Zakia Jafri, the 72-year old widow of former Congress MP Ehsan Jafri — who was butchered by a riotous Hindu mob — and a few human rights activists to doggedly pursue the riot cases in the Supreme Court. Senior Supreme Court lawyer Harish Salve has been the amicus curiae — in simple words, friend of the court — in the petition which resulted in the re-investigation of nine major Gujarat riot cases including the massacres of Naroda Goan, Naroda Patiya and Gulberg Society in Ahmedabad where more than 200 Muslim men, women and children were hacked and burnt to death.

In India, while handling cases of extreme public interest, the courts have often appointed senior advocates with impeccable integrity as amicus curiae. The job of an amicus is to assist the court with objective and impartial analysis so that justice is served and public interest prevails.

In his capacity as an amicus for the past eight years, Salve has been assisting the court in finding the truth of the Gujarat riots. It was Salve who, along with the counsel of the Gujarat government, finalised the names of the police officers who were appointed SIT members.

After the SIT was formed in March 2008, Salve has supposedly been scrutinising the SIT investigation and advising it on how to proceed further and nail all the culprits. At the same time, Salve he has been guiding the court on the question of the fairness of the SIT probe and the further investigation required.

Over the past two years, the victims have been petitioning the court that the SIT had failed to book senior state government functionaries on whose watch the riots had taken place. In the case of the Gulberg Society massacre, for instance, the SIT held an inspector responsible for the deliberate failure of the entire police machinery, while recommending mere departmental action against senior police officers of the rank of joint commissioner and deputy commissioner.

The complainants told the court that the SIT had failed the cause of justice and thus should be disbanded and a new investigation team should be formed. In fact, the apex court has become the repository of all the hopes of the riot victims, and if they lose faith in the amicus curiae, justice might not be seen to be done.

Citizens for Justice and Peace (CJP), a Mumbai-based advocacy group and one of the main petitioners before the Supreme Court, had complained that Salve had not heeded their complaints of shoddy investigation being carried out by the SIT.

On 9 February 2010, senior Supreme Court lawyer Kamini Jaiswal, appearing on behalf of the riot victims, told the Supreme Court that she had no faith in Salve as an amicus. She pointed out that Salve, besides being an amicus in the riot cases where the Gujarat government is a suspect, had been appearing for the Narendra Modi government in the Ishrat Jahan encounter case (in which a teenage girl from Mumbai was gunned down by Gujarat policemen under suspicious circumstances) defending the tainted policemen before the apex court.

Jaiswal said it was a clear case of conflict of interest as all these cases were interconnected as they were all related to the persecution of Muslims at the hands of a communal government and the absence of a constitutional rule for minorities in Gujarat. But the court overruled Jaiswal. The three-judge bench of Justice DK Jain, Sathashivam and Aftab Alam said, “It’s not your faith which matters. We have full faith in Salve’s impartiality.” As a result, Salve has continued to be the amicus. Interestingly, before the same bench, the Gujarat government had objected to senior civil liberties lawyer Prashant Bhushan holding the post of amicus in the case of Ehsan Jafri’s wife Zakia’s complaint against Modi.

The government had pointed out that in the past, Bhushan had criticised the chief minister for his failure to control riots in newspaper columns and thus as an amicus he could not be impartial and objective in the probe against Modi. Bhushan had subsequently recused himself.

TEHELKA has dug out a string of emails between Salve and senior officials of the Modi government that show Salve had routed an ambitious business proposal of a major company to Modi’s office. On 27 April 2010, Salve received an email about a business proposal of setting up two 50 MW solar power plants in Gujarat from Eros Energy, a company promoted by London-based billionaire Kishore Lulla, whose family fortune was pegged at £206 million by the Sunday Times Rich list.

The proposal attached with the email shows that Lulla wanted 200 hectares of government land to set up the power plants. The project report was attached with a personal letter written by Lulla and addressed to Modi. It read: “Dear Shri Modi. Eros Energy, part of Eros Group, has been established to develop and operate solar power stations in India. The company is particularly keen to develop such projects in Gujarat because of the favourable investment climate.” he concluded the letter by saying, “We respectfully urge you to consider this application and allot government land as requested.”

On 28 April, Salve forwarded the letter and the project report to Gujarat government’s Additional Advocate General Tushar Mehta. Mehta in turn forwarded Salve’s email to Girish Chandra Murmu, the additional principal secretary to Modi and Sanjay Bhavsar, the officer on special duty to the chief minister.

ON 29 APRIL, Mehta wrote back to Salve, providing him the cellphone numbers of Murmu and K Kailashnathan, principal secretary to the chief minister, as requested by Salve. If one logically infers from the email trail it would appear that Salve must have spoken to Murmu or Kailashnathan about the project. There could be no other reason for asking the cell phone numbers of Modi’s key aides.

Both Murmu and Bhavsar figure as accused in Zakia Jafri’s criminal complaint for their alleged complicity in the subversion of justice. It is alleged that Modi had used Bhavsar’s cell phone number during the riots. Former Additional Director General of Police RB Sreekumar had alleged that Murmu had tried to threaten him into giving a false testimony on Modi’s failure in controlling the riots before the Justice Nanavati Commission.

What is intriguing is the fact that the same project report mentions that Eros Energy officials had already had a few rounds of meetings with senior bureaucrats of the Gujarat government with regard to this project. Still, to push their project further, Lulla chose to route his expression of interest and his letter to Modi through Salve.

The email exchanges clearly show that the Modi administration identified the project with Salve. While forwarding the Eros project proposal to Modi’s top officials, Mehta in his emails emphasised upon the fact that the project report had been forwarded by Salve.

One could argue that Salve was lobbying with Modi’s office for a corporate company and the government would have been only too pleased to oblige Salve who holds the important office of amicus curiae in the riot cases where the Modi government stands accused. Eros Energy finally got the clearance and the required land to set up a 25 MW power project. Speaking to TEHELKA on the phone from London, Lulla said, “We have got the land to set up a 25 MWpower project in Gujarat. I don’t have all the details. I will ask my CEO to call you and provide you the full information.” however, the CEO never called.

In his defence, Salve told TEHELKA that he had not made any money from the Eros deal and the mails he wrote were in his personal capacity as a friend of Lulla. He said that one should not make too much out of his email exchanges with Modi’s top officials as he had routinely advised his friends from the corporate world to invest in Gujarat. Salve asserted that Mehta had asked him to recommend foreign investors interested in setting up solar power projects in Gujarat and that’s the reason why he referred Lulla to Mehta. But Salve’s claims are belied by the fact that Lulla’s project report itself mentions that his company had already had a few meetings with Energy Secretary DJ Pandian and Gujarat Energy Development Agency CMD VH Buch on the subject, before Lulla chose to route his request to Modi for land allotment through Salve.

Several profound questions on the subject of legal ethics and propriety arise from this.Why did Eros Energy have to route their letter to Modi and the project report through Salve when they were already in touch with the Gujarat government? Does this act of Salve not amount to corporate lobbying? Should Salve, who is an amicus in one of India’s most critical cases, which involves the struggle for justice of thousands of riot victims against a powerful chief minister and his entire government machinery, send business proposals to the same chief minister who stands accused?

Could Salve have been fair, impartial and objective in his analysis of the SIT investigation into the Gujarat riots while recommending corporate deals to the Modi government?

Doesn’t this cast a cloud of suspicion on Salve’s submissions to the Supreme Court on the SIT investigation?

Doesn’t this revelation give credence to the riot victims’ allegations that Salve had condoned the shoddy SIT investigation and had gone soft on the Modi government?

A few legal luminaries, speaking to TEHELKA have strongly condemned Harish Salve’s conduct.

Retired Supreme Court Judge PB Sawant said that it would be highly unethical and untenable for Salve to continue as an amicus after this exposé. “If the email exchanges cited by you are true then in my view it amounts to corporate lobbying,” he says. “The court had appointed Salve to assist the judges. But corporate lobbying will make people doubt his impartiality and objectivity. He must resign and I’m sure he will do that.”

Noted civil liberty lawyer Shanti Bhushan said, “The email exchanges show that if this corporate entity had not gone through Salve, their business proposal would not have got the preferential treatment from the Gujarat government. Salve should have realised his delicate status of an amicus in a case involving a profound cause of justice. His conduct is clearly not in the keeping with the high traditions of amicus curiae.”

Many other senior lawyers contacted by TEHELKA refused to be drawn into the controversy, citing their acquaintance with Salve. Arun Jaitley, leader of the Opposition in the Rajya Sabha and a distinguished lawyer himself, said, “Since I don’t know the merits of the case, I would not be in a position to comment. But I can say that during my tenure as law minister, Salve was solicitor general and I always found him professionally independent and apolitical in his functioning as a law officer.”

Given the political context, the issue is poised to generate a heated debate in legal circles in the coming days. THIS IS how the Eros Energy deal played out. On 27 April 2010, Daniel Coyle, a senior official of Eros Energy, wrote to Harish Salve on his email id harish@hsalve.com: “Dear Harish. Please find attached a letter from Eros Energy to Shri Narendra Modi with an expression of interest document outlining our plans for Gujarat. Best Regards. Daniel.” The mail was copied to Kishore Lulla and Eros Energy Group CEO Sean Hanafin. On 28 April, Salve forwarded Lulla’s project report and his letter to Modi to the Gujarat government’s Additional Advocate General Tushar Mehta on his email id tusharmehta99@yahoo.co.in. He wrote: “Dear Tushar. Attached is a note on the solar project. Best wishes.”

On 29 April, Mehta forwarded Salve’s email along with Lulla’s project report and letter to Girishchandra Murmu, the additional principal secretary to the chief minister, on his email id gcm1@rediffmail.com. He wrote: “Dear Shri Murmu. Please find enclosed herewith a letter sent to me by Shri Harish Salve along with the project report of Eros Energy. Regards. Tushar Mehta.” Mehta wrote this mail at 10.02 pm.

Within four minutes, at 10.06 pm, Mehta emailed back to Salve: “Dear Shri Salve. As discussed, please find the mobile phone numbers of the following: 1. Shri K Kailashnathan, IAS, principal secretary to the chief minister, 9978406003. 2. Shri Girish Chandra Murmu, IAS, additional principal secretary to the chief minister, 9978406119. With Regards. Tushar Mehta.”

Further to this email correspondence, on 4 May 2010, Mehta forwarded Salve’s email along with Lulla’s project report and letter to Sanjay Bhavsar, officer on special duty to the CM, on Bhavsar’s email id osd2cm@gmail.com. He wrote: “Dear Shri Sanjaybhai. Kindly find herewith the mail received from Shri Harish Salve. Please do the needful.” The same day, bhavsar wrote back to Mehta: “Dear Sir. Received your mail. I will reply you shortly (sic). Thanks.”

Asked to explain, Lulla told TEHELKA, “We were interested in setting up solar power projects in the states of Gujarat, Madhya Pradesh, Rajasthan and Tamil Nadu. In all these states we approached the government independently.” When asked why he chose to contact Modi’s office through Salve in the case of Gujarat, Lulla said he wrote to Salve as a friend, seeking his help in the matter.

Salve claimed that he had not made any financial gain from the deal. However, when asked why he routed Lulla’s business proposal to Modi’s top officials, he gave conflicting and unconvincing replies (see the interview, page 26). On the one hand, he said that the Gujarat government was looking for investments in the field of solar power and that’s why he sent Lulla to Gujarat. At other times he said that since Lulla was a friend and he wanted to save him from bureaucratic hassles. Through it all, he maintained that his actions didn’t amount to impropriety. Instead, he claims his conduct was is in line with the highest traditions of the office of amicus curiae in the country.

IN APRIL 2002, Citizens for Justice and Peace Secretary Teesta Setalvad, along with several other human rights activists like former People’s Union for Civil Liberties chairman Devendra Pathak and Father Fredrick Prakash, had filed a petition before the apex court asking for an independent probe by the CBI and transfer of riot cases outside state of Gujarat. In 2003, the National Human Rights Commission (NHRC) also filed a petition asking for transfer of trials outside Gujarat. Both these petitions were clubbed by the Supreme Court and the case came to be known as NHRC vs State of Gujarat.

In 2003, the incumbent Chief Justice of India, Justice VN Khare appointed Salve as the amicus in the case. Since then Salve has continued to hold that office. But for the past two years, the NGOs representing the riot victims have been severely critical of Salve’s role as an amicus. Speaking to TEHELKA, Setalvad said, “Nearly six years after our criminal writ petition praying for the transfer of investigation in nine major riot cases to the CBI was filed, that on 26 March 2008 that the Supreme Court appointed a SIT. Though it was headed by a retired CBI director, it comprised of Gujarat police officials. When the matter of who would constitute the team came up, the CJP on behalf of the victim survivors pleaded that only those officers from Gujarat who enjoyed reputations of neutrality and impeccable integrity should be included. But to our shock the amicus accepted the names of officers given by the state of Gujarat without even consulting us. We placed our objections to this unfair procedure and suggested alternate names but nothing happened.”

The apex court had appointed retired CBI director Raghavan, a Tamil Nadu cadre officer, as SIT chairman. But three crucial members of the probe team — IGs Ashish Bhatia, Geeta Johri and Shivanand Jha — were all picked from Gujarat Police. It was these three officers who were entrusted with the direct supervision of the probes. Besides, the entire supporting team, from constables to inspectors to deputy SPs — who actually carried out the field investigation, including interrogation of the accused and examination of witnesses, were all picked from Gujarat Police.

Two officers of the SIT in particular — Jha and Johri — attracted censure of civil right activists for their alleged biased and shoddy investigation. While transferring the Sohrabuddin Sheikh fake encounter case from the Gujarat CID to the CBI, the Supreme Court had passed strictures against Johri. In April 2010, the Supreme Court finally ordered that both Johri and Jha should be removed from the SIT. But when the question of their replacements arose, Salve again didn’t consult the riot victims and their representatives and went along with the names suggested by Raghavan.

Besides, the victims claim that despite their highlighting the issue of shoddy and even motivated investigation, Salve did not pay much heed nor did he push the SIT hard enough for corrective action. ‘From October 2009 to April 2010, we kept on filing applications before the apex court highlighting innumerable instances of shoddy investigation but the amicus never gave us a hearing,” said Setalvad. “In January 2010, our counsels Aspi Chinoi and later Kamini Jaiswal even prepared written arguments detailing the failures of the SIT investigations, which were then sent to the amicus. But still he did not respond until the Supreme Court via its order dated 6 April 2010 specifically asked the amicus to hear us out.”

The SIT’s report card presents a dismal picture. At every stage, the victims had to petition the court to make the SIT investigate critical aspects of different cases. In one instance, even a special public prosecutor raised questions about the questionable conduct of senior SIT members. In April 2010, RK Shah, the special public prosecutor in the Gulberg Society massacre case, had resigned in disgust, accusing the SIT of being uncooperative and not providing him the necessary records required for successfully prosecuting the accused.

The Supreme Court had to finally ask a non-Gujarat police officer, AK Malhotra, to inquire into the apparent lapses in the investigation.

In many instances, the SIT, instead of taking criminal action, had recommended departmental action against senior police officers for their complicity in the riots. In the probe against Modi’s alleged complicity in the riots, the SIT has submitted an ex- 12 MARCH 201 1 TEHELKA extremely flawed and self-contradictory report. TEHELKA through its cover story (Here’s the Smoking Gun, 12 February) had exposed the cover-up behind the probe.Questions about SIT’s credibility and the role of Salve as an amicus are being raised.

FOR SAFEGUARDING their business interests in court, it is Salve who has often been the first choice of doyens of the corporate world. Recently, when Ratan Tata petitioned the Supreme Court on the issue of the leakage of the Niira Radia tapes, he approached Salve to fight his claim of right to privacy. Before that, Salve had secured a favourable verdict from the apex court for his client Mukesh Ambani in the hotly contested gas pricing dispute with his younger brother Anil.

Besides, Salve has also been the counsel for top politicians like Mulayam Singh Yadav, Mayawati, Prakash Singh Badal and Amarinder Singh. Salve, whom India Today had once ranked as the 18th most powerful man in the country, is seen as an expert in the field of Constitutional law, commercial law and taxation law. He was also the solicitor general of India from November 1999 to November 2002. Recently, Salve in his capacity as an amicus in the decades-old forest preservation case, filed a contempt petition against senior lawyer Prashant Bhushan when, in an interview to TEHELKA, Bhushan had questioned the integrity of the past 16 Chief Justices of India.

In his counter-affidavits, Bhushan accused Salve of playing a dubious role as an amicus in various cases of public interest and accused him of professional misconduct. Bhushan argued, “The contempt petition has been filed by a person who has repeatedly misused his position as amicus curiae and has taken briefs/retainers to appear for various private parties in matters in which he has been appearing as amicus curiae as well.”

Bhushan cited several instances where Salve had appeared both as an amicus and also as a counsel in the same case. But Salve claimed that Bhushan’s allegations are not true. He claimed he had always maintained his objectivity. “In so many big cases we appear for a client and the next day we appear against the client. The court respects our objectivity because we are able to delink from the situation and are able to deal with the matter,” he said.

In matters of immense public interest, the Supreme Court has often appointed lawyers of impeccable integrity having the finest knowledge of law as amicus curiae. As a friend of the court, the amicus represents neither of the contesting parties but acts purely in public interest.

In the past, senior advocates like Anil Divan have performed the role of amicus with aplomb. In the 1996 Jain Hawala case, Divan’s submissions to the court pushed the CBI into investigating the matter deeper and prosecuting the bigwigs of Indian politics. He submitted to the court that the CBI chief should be restrained from consulting the then Prime Minister PV Narasimha Rao on the case. The court upheld the submission, thus freeing the probe from the ambit of the PMO.

He later nixed the United Front government’s move to amend the Prevention of Corruption Act by excluding MPs and MLAs from the ambit of ‘public servant.’ The court intervened and the United Front government had to hurriedly drop the proposal which was aimed at protecting the politicians in the ongoing Jain Hawala investigation. He had successfully pushed the PMO to demit the then Uttar Pradesh governor Motilal Vohra and Kerala governor P Shiv Shankar from their offices so that they could be prosecuted. Divan had to often let go lucrative assignments when he refused briefs from corporate companies as he thought they conflicted with his position as an amicus in related cases.

Salve maintains that his conduct as an amicus has been in keeping with the high standards set by people like Divan. The decision lies with the reader.

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