Judges frightened of TRUTH
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Editor: NAGARAJA.M.R… VOL.11
issue.23…… . 14 / 06 / 2017
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Khehar Answer
https://sites.google.com/site/sosevoiceforjustice/cji-khehar-answer ,
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.
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