A case of judicial inaction

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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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Letter sent to former CJI had mention of Raja: Supreme Court Judge

Konakuppakatil Gopinathan Balakrishnan, Chief ...

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In an embarrassment to former Chief Justice of India K. G. Balakrishnan, Supreme Court Judge H. L. Gokhale on Tuesday contradicted his claim that he was not aware that it was former Union Telecom Minister A. Raja, who had tried to influence a Madras High Court judge in a criminal case. In a statement, Justice Gokhale, who was the Chief Justice of the Madras High Court at that time, said that in his letter to Justice Balakrishnan, the then CJI, he had clearly referred to the name of Mr. Raja.

Justice Gokhale’s statement totally contradicts Justice Balakrishnan’s claim that there was no mention of any Union Minister in the report sent by Justice Gokhale, then High Court Chief Justice, on Justice S. Reghupathi episode. “I regret to say that the allegations are absolutely incorrect,” Mr. Balakrishan had said last week referring to news reports that he had suppressed a letter purportedly written by Justice Reghupathi to him when he was the Chief Justice of India.

In a statement on Tuesday, Justice Gokhale said, “The former CJI has stated in his press conference that in my letter I did not mention the name of any Union Minister having talked to Justice Reghupathi over phone to influence him. “With respect to this statement I may point out that Justice Reghupathi’s letter was already with him and in the second paragraph thereof justice Reghupathi had specifically mentioned the name of Raja.

“I had no personal knowledge about the incident and observations in my reply wherein are in conformity with the contents of Justice Reghupathi’s,” Justice Gokhale said.

News reports had alleged that Mr. Balakrishan had suppressed that letter which had purportedly alleged that Mr. Raja had tried to influence Justice Reghupathi which cast aspersion on him (CJI) that he had committed dereliction of duty. “When this incident was reported in the media, I sought for a report from the then Chief Justice of Madras High Court Justice Gokhale and he sent me a report wherein nothing was mentioned about any Union Minister having made a telephonic talk with Justice Reghupathi to influence him,” Mr. Balakrishan had said

The truth should come out. What did the Chief Justice of India do when a High Court Judge was threatened by a Minister?

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Balakrishnan: I did not receive any letter from Regupathi when I was CJI

FROM THE HINDU

“Such reports cast aspersions on me, that I had committed dereliction of duty”

NEW DELHI: National Human Rights Commission (NHRC) chairman K.G. Balakrishnan on Wednesday denied reports in a section of the media that the former Madras High Court Judge, Justice R. Reghupathi, had written to him when he was the Chief Justice of India (CJI) alleging that the former Union Telecom Minister, A. Raja, had tried to influence him. Justice Balakrishnan also denied that he had suppressed that letter.

“Incorrect”

“Such reports cast aspersions on me, that I had committed dereliction of duty… The allegations are absolutely incorrect,” he said in a statement here. Justice Balakrishnan made it clear that he had not received any such letter or communication directly from Justice Reghupathi while he was in office.

Gokhale’s report sought

When the media reported the incident, at that time Justice Balakrishnan sought a report from the then Chief Justice of the Madras High Court, H.L. Gokhale, and the latter sent him a report wherein nothing was mentioned about the name of any Union Minister having talked over phone with Justice Reghupathi to influence him. “Therefore, there was no occasion for me to talk to the Prime Minister or to take any further action.”

‘Facts disclosed’

Justice Balakrishnan said he had disclosed these facts at the relevant time. “Moreover, if anything happened like that, which amounted to interference in the judicial function of Justice Reghupathi, he himself could have exercised his powers of contempt of court for which no permission is required from the CJI.”

‘Facts can be verified’

“It appeared that Justice Reghupathi made a statement that he reported the matter to the Chief Justice and he certainly meant the [then] Chief Justice of the Madras High Court and not the CJI,” Justice Balakrishnan said, adding that these facts may be verified.

The letter, which was written to him by Justice Gokhale, might be available in the office of the present Chief Justice, Justice Balakrishnan said.

Regupathi says he did mark a copy to CJI

Mohamed Imranullah S.IN THE HINDU

MADURAI: The former Madras High Court judge, R. Regupathi, on Wednesday said that he had written a letter on July 2, 2009 to the then Chief Justice of the High Court, regarding the attempt to influence him in an anticipatory bail case, with a “specific endorsement to forward the copy to the [then] Chief Justice of India” (CJI) K.G. Balakrishnan.

Speaking to The Hindu on the phone, Justice Regupathi said he did not make sure whether the letter reached the CJI or not because “if I had followed it up closely, people would have attributed motives against me. In fact, I avoided meeting the CJI after that even though he had come to the judicial academy in Chennai and I too visited the Supreme Court to meet my lawyer friends.”

He gave two reasons for not initiating suo motu contempt proceedings against the individuals concerned. “Firstly, the issue was so big and the person involved was the Chairman of the Bar Council of Tamil Nadu. If I had initiated contempt, then I would have been holding my own brief. At times, judges may also commit mistakes. So I was careful in not dealing with the issue myself. Secondly, I thought it appropriate that some other judge should hear the matter. Therefore, I passed a judicial order requesting the Chief Justice of the High Court to transfer the case to another Bench. Coupled with it, I also addressed a letter to him on the administrative side. Being a sensitive issue, I was very careful and I am still sure I made the right decision,” he said.

“Once a judge delivers a judgment, he becomes ‘ functus officio’ [having performed his office]. Therefore, I made my decision that the matter should be handled my some other judge and put down everything in writing to the head of the institution and left the matter at that. “Having been a criminal lawyer for nearly 30 years, I know that this was the right way to deal with such issues,” he added.

http://www.hindu.com/2010/12/09/stories/2010120955981400.htm

Picking their own men

Manoj Mitta | October 9, 2010 IN THE TIMES OF INDIA CREST EDITION

 

Judge Selection for The Supreme Court of India

Judge Selection for The Supreme Court of India

 

Judges know best who can be trusted to join their ranks. The judiciary, therefore, assumed “primacy” in the appointment process in 1993. If an outsider is allowed to have a say in the selection of judges, it is bound to compromise judicial independence. Such are the rather self-serving assumptions on which the judiciary has been resisting all attempts to reform the appointment system in which a “collegium” of five senior-most judges of the Supreme Court, including the Chief Justice of India, make recommendations that are binding on the government.

But in the last year or so, this self-perpetuating oligarchy has unraveled like never before. This is due mainly to the scandals triggered by a couple of collegium decisions. Justice A P Shah, despite his internationally acclaimed judgment decriminalising homosexuality, was found unfit to be elevated to the Supreme Court. The then CJI, K G Balakrishnan, at the same time, spared no effort to promote Justice P D Dinakaran, despite allegations of corruption, land grab, and abuse of office.

Given its secretive style of functioning, there has been no word of explanation from the collegium on why Justice S H Kapadia, who has since become CJI, opposed the candidature of Justice Shah, who has since retired. Or why it was only after the Rajya Sabha initiated impeachment proceedings against him that the collegium abandoned its efforts to promote Justice Dinakaran to the Supreme Court and instead transfered him from Karnataka to Sikkim. The credibility of the Supreme Court suffered another blow in the course of the impeachment proceedings against Dinakaran. One of its judges, V S Sirpurkar, withdrew under a cloud in September as the chairman of the statutory probe related to the impeachment motion.

The withdrawal followed allegations of bias against Justice Sirpurkar on the ground that he and Justice Dinakaran had developed a close friendship during the seven years they had worked together at the Madras high court. The last straw was the disclosure that even after both had left Chennai, Justice Dinakaran reportedly attended the wedding of Justice Sirpurkar’s daughter in Nagpur, while Justice Sirpurkar reciprocated by attending Justice Dinakaran’s daughter’s wedding in Bangalore.

If judges are facing such a trust deficit, the lack of transparency in the appointment system is surely a contributory factor. Yet, law minister Veerappa Moily never followed up on his one-year-old “vision statement”, which proposed that the executive and legislature should be involved in selecting judges. His much-touted but yet-to-be-introduced Judicial Standards and Accountability Bill is meant to deal with allegations against those already in the judiciary.

Much as it is important to strengthen accountability safeguards, Moily seems to have adopted a symptomatic line of treatment as his Bill does not address the actual ailment, namely, deficiencies in the method of recruitment. He is persisting in his folly of limiting himself to accountability even after he suffered the mortification of withdrawing his earlier Bill, which sought to exempt the courts from disclosing assets of judges under the Right To Information Act.

It is time the government mustered the courage to undo the 1993 Supreme Court judgment through which the judiciary appropriated the authority to decide judicial appointments. There is no reason to believe that the collegium misused this authority only in the cases of Shah and Dinakaran. Shah was as much a casualty as Dinakaran was a beneficiary of the give-and-take negotiations that have become endemic in the collegium.

It is clear that the collegium system is flawed as it contains no checks and balances to ensure that the judges entrusted with the responsibility of choosing successors always act in public interest. This is not to suggest, however, that India revert to the pre-1993 situation when the likes of H R Bharadwaj misused the constitutional power conferred on the executive to appoint judges in “consultation” with the judiciary.

In its game-changing 1993 verdict, the Supreme Court swung to the other extreme by interpreting “consultation” as concurrence. As a corollary, the judiciary usurped the prerogative to select candidates. Things are unlikely to be any better if the prerogative is restored to the executive. What is needed is a system that is transparent and inclusive, so that all stakeholders are allowed to have a say on who should man the crucial institution that renders justice.

Such radical reform would require a constitutional amendment, which may be a tough task for a coalition government, but it is a worthwhile cause for mobilising an all-party consensus. Lawyers and judges profiteering from the existing opacity are bound to question the wisdom of opening up the appointment system. They would, however, be hardpressed to justify India’s dubious distinction of being probably the only country in which judges choose their own successors.

When our founding fathers empowered the executive to select judges, they were following the example of the UK, the mother country in matters constitutional. The UK too has taken away judge-selection power from the executive. But it did not hand it over to the judiciary. For the past five years, new judges have been selected by an autonomous body.

Only a third of the 15 members of the UK’s Judicial Appointments Commission (JAC) are from within the judiciary. Of the remaining 10 members, two are from the bar, one from among the tribunals, and seven are statutorily required to be ‘lay persons’. The remit of the JAC – which incidentally is headed by Usha Prashar, a PIO – is to select judges “through fair and open competition, from the widest range of eligible candidates”.

If the British idea of demystifying the judiciary seems unrealistic in India, the UPA government could at least take a fresh look at the NDA’s lapsed Bill seeking to create a selection panel consisting of judges, the law minister, and an eminent person. The NDA model could be improved by expanding the panel to include representation from the legislature, bar and civil society. Another model worth emulating is the American system, under which the president nominates federal judges subject to open and rigorous questioning by the bipartisan Senate Judiciary Committee.

Whatever the shortcomings of the American and British systems, the important thing is their judges, unlike ours, are democratically selected. Democracy in the context of the judiciary is not about judges representing popular aspirations or being prone to partisanship. The lessons that can be drawn from the US and the UK demolish the assumptions on which the Indian judiciary has been running its collegium system. We can no longer be kept in the dark about why a Shah has been rejected or a Dinakaran selected.