Outlook Magazine
October 1, 2007
http://www.outlookindia.com/full.asp?fodname=20071001&fname=Sabharwal+(F)&sid=1
SCANDAL IN THE PALACE
Judges in India are divine beings. And if you're
an ex-CJI, your sins are above mortal reproach.
............
by Arundhati Roy
Scandals can be fun. Especially those that knock
preachers from their pulpits and flick halos off
saintly heads. But some scandals can be corrosive
and more damaging for the scandalised than the
scandalee. Right now we're in the midst of one
such.
At its epicentre is Y.K. Sabharwal, former Chief
Justice of India, who until recently headed the
most powerful institution in this country-the
Supreme Court. When there's a scandal about a
former chief justice and his tenure in office,
it's a little difficult to surgically excise the
man and spare the institution.
But then commenting adversely on the
institution can lead you straight to a prison
cell as some of us have learned to our cost. It's
like having to take the wolf and the chicken and
the sack of grain across the river, one by one.
The river's high and the boat's leaking. Wish me
luck.
The higher judiciary, the Supreme Court in
particular, doesn't just uphold the law, it
micromanages our lives. Its judgements range
through matters great and small. It decides
what's good for the environment and what isn't,
whether dams should be built, rivers linked,
mountains moved, forests felled. It decides what
our cities should look like and who has the right
to live in them. It decides whether slums should
be cleared, streets widened, shops sealed,
whether strikes should be allowed, industries
should be shut down, relocated or privatised. It
decides what goes into school textbooks, what
sort of fuel should be used in public transport
and schedules of fines for traffic offences.
It decides what colour the lights on judges' cars
should be (red) and whether they should blink or
not (they should). It has become the premier
arbiter of public policy in this country that
likes to market itself as the World's Largest
Democracy.
Ironically, judicial activism first rode in on a
tide of popular discontent with politicians and
their venal ways. Around 1980, the courts opened
their doors to ordinary citizens and people's
movements seeking justice for underprivileged and
marginalised people. This was the beginning of
the era of Public Interest Litigation, a brief
window of hope and real expectation. While Public
Interest Litigation gave people access to courts,
it also did the opposite. It gave courts access
to people and to issues that had been outside the
judiciary's sphere of influence so far. So it
could be argued that it was Public Interest
Litigation that made the courts as powerful as
they are. Over the last 15 years or so, through a
series of significant judgements, the judiciary
has dramatically enhanced the scope of its own
authority.
Investigate Sabharwal L-R: Arvind Kejriwal, Swami
Agnivesh, Shanti Bhushan and Prashant Bhushan at
a press meet
Today, as neo-liberalism sinks its teeth deeper
into our lives and imagination, as millions of
people are being pauperised and dispossessed in
order to keep India's Tryst with Destiny (the
unHindu 10% rate of growth), the State has to
resort to elaborate methods to contain growing
unrest. One of its techniques is to invoke what
the middle and upper classes fondly call the Rule
of Law. The Rule of Law is a precept that is
distinct and can often be far removed from the
principle of justice. The Rule of Law is a phrase
that derives its meaning from the context in
which it operates. It depends on what the laws
are and who they're designed to protect. For
instance, from the early '90s, we have seen the
systematic dismantling of laws that protect
workers' rights and the fundamental rights of
ordinary people (the right to
shelter/health/education/water).
International financial institutions like the
imf, the World Bank and the adb demand these not
just as a precondition, but as a condition, set
down in black and white, before they agree to
sanction loans. (The polite term for it is
structural adjustment. ) What does the Rule of
Law mean in a situation like this? Howard Zinn,
author of A People's History of the United
States, puts it beautifully: "The Rule of Law
does not do away with unequal distribution of
wealth and power, but reinforces that inequality
with the authority of law. It allocates wealth
and poverty in such indirect and complicated ways
as to leave the victim bewildered."
[Photo:] Papa's the best judge: Justice
Sabharwal's sons were running their businesses
out of his 'official' Motilal Nehru Marg house
As it becomes more and more complicated for
elected governments to be seen to be making
unpopular decisions (decisions, for example, that
displace millions of people from their villages,
from their cities, from their jobs), it has
increasingly fallen to the courts to make these
decisions, to uphold the Rule of Law.
The expansion of judicial powers has not been
accompanied by an increase in its accountability.
Far from it. The judiciary has managed to foil
every attempt to put in place any system of
checks and balances that other institutions in
democracies are usually bound by.
It has opposed the suggestion by the Committee
for Judicial Accountability that an independent
disciplinary body be created to look into matters
of judicial misconduct. It has decreed that an
fir cannot be registered against a sitting judge
without the consent of the chief justice (which
has never ever been given). It has so far
successfully insulated itself against the Right
to Information Act. The most effective weapon in
its arsenal is, of course, the Contempt of Court
Act which makes it a criminal offence to do or
say anything that "scandalises" or "lowers the
authority" of the court. Though the act is framed
in arcane language more suited to medieval ideas
of feminine modesty, it actually arms the
judiciary with formidable, arbitrary powers to
silence its critics and to imprison anyone who
asks uncomfortable questions.
Small wonder then that the media pulls up short
when it comes to reporting issues of judicial
corruption and uncovering the scandals that must
rock through our courtrooms on a daily basis.
There are not many journalists who are willing to
risk a long criminal trial and a prison sentence.
Until recently, under the Law of Contempt, even
truth was not considered a valid defence. So
suppose, for instance, we had prima facie
evidence that a judge has assaulted or raped
someone, or accepted a bribe in return for a
favourable judgement, it would be a criminal
offence to make the evidence public because that
would "scandalise or tend to scandalise" or
"lower or tend to lower" the authority of the
court.
Yes, things have changed, but only a little. Last
year, Parliament amended the Contempt of Court
Act so that truth becomes a valid defence in a
contempt of court charge. But in most cases (such
as in the case of the Sabharwal...er... shall we
say "affair") in order to prove something it
would have to be investigated. But obviously when
you ask for an investigation you have to state
your case, and when you state your case you will
be imputing dishonourable motives to a judge for
which you can be convicted for contempt. So:
Nothing can be proved unless it is investigated
and nothing can be investigated unless it has
been proved.
The only practical option that's on offer is for us to think Pure Thoughts.
For example:
a. Judges in India are divine beings.
b. Decency, wholesomeness, morality,
transparency and integrity are encrypted in their
DNA.
c. This is proved by the fact that no judge
in the history of our Republic has ever been
impeached or disciplined in any way.
d. Jai Judiciary, Jai Hind.
It all becomes a bit puzzling when ex-chief
justices like Justice S.P. Bharucha go about
making public statements about widespread
corruption in the judiciary. Perhaps we should
wear ear plugs on these
occasions or chant a mantra.
It may hurt our pride and curb our free spirits
to admit it, but the fact is that we live in a
sort of judicial dictatorship. And now there's a
scandal in the Palace.
Last year (2006) was a hard year for people in
Delhi. The Supreme Court passed a series of
orders that changed the face of the city, a city
that has over the years expanded organically,
extra-legally, haphazardly. A division bench
headed by Y.K. Sabharwal, chief justice at the
time, ordered the sealing of thousands of shops,
houses and commercial complexes that housed what
the court called 'illegal' businesses that had
been functioning, in some cases for decades, out
of residential areas in violation of the old
master plan.
It's true that, according to the designated
land-use in the old master plan, these businesses
were non-conforming. But the municipal
authorities in charge of implementing the plan
had developed only about a quarter of the
commercial areas they were supposed to. So they
looked away while people made their own
arrangements (and put their lives' savings into
them.) Then suddenly Delhi became the capital
city of the new emerging Superpower. It had to be
dressed up to look the part. The easiest way was
to invoke the Rule of Law.
The sealing affected the lives and livelihoods of
tens of thousands of people. The city burned.
There were protests, there was rioting. The Rapid
Action Force was called in. Dismayed by the
seething rage and despair of the people, the
Delhi government beseeched the court to
reconsider its decision. It submitted a new 2021
Master Plan which allowed mixed land-use and
commercial activity in several areas that had
until now been designated 'residential'. Justice
Sabharwal remained unmoved. The bench he headed
ordered the sealing to continue.
Vasant Kunj Mall: When Rule of Law winked and looked away
Around the same time, another bench of the
Supreme Court ordered the demolition of Nangla
Macchi and other jhuggi colonies, which left
hundreds of thousands homeless, living on top of
the debris of their broken homes, in the
scorching summer sun. Yet another bench ordered
the removal of all "unlicensed" vendors from the
city's streets. Even as Delhi was being purged of
its poor, a new kind of city was springing up
around us. A glittering city of air-conditioned
corporate malls and multiplexes where mncs
showcased their newest products. The better-off
amongst those whose shops and offices had been
sealed queued up for space in these malls. Prices
shot up. The mall business boomed, it was the
newest game in town. Some of these malls,
mini-cities in themselves, were also illegal
constructions and did not have the requisite
permissions.
But here the Supreme Court viewed their
misdemeanours through a different lens. The Rule
of Law winked and went off for a tea break. In
its judgement on the writ petition against the
Vasant Kunj Mall dated October 17, 2006 (in which
it allowed the construction of the mall to go
right ahead), Justices Arijit Pasayat and S.H.
Kapadia said:
"Had such parties inkling of an idea that
such clearances were not obtained by DDA, they
would not have invested such huge sums of money.
The stand that wherever constructions have
been made unauthorisedly demolition is the only
option cannot apply to the present cases, more
particularly, when they unlike, where some
private individuals or private limited companies
or firms being allotted to have made
contraventions, are corporate bodies and
institutions and the question of their having
indulged in any malpractices in getting the
approval or sanction does not arise."
It's a bit complicated, I know.
A friend and I sat down and translated it
into ordinary English. Basically,
a. Even though in this present case the
construction may be unauthorised and may not have
the proper clearances, huge amounts of money have
been invested and demolition is not
the only option.
b. Unlike private individuals or private limited
companies who have been allotted land and may
have flouted the law, these allottees are
corporate bodies and institutions and there is no
question of their having indulged in any
malpractice in order to get sanctions or approval.
The question of corporate bodies having indulged
in malpractice in getting approval or sanction
does not arise. So says the Indian Supreme Court.
What should we say to those shrill hysterical
people protesting out there on the streets,
accusing the court of being an outpost of the New
Corporate Empire? Shall we shout them down? Shall
we say 'Enron zindabad'? 'Bechtel, Halliburton
zindabad'? 'Tata, Birla, Mittals, Reliance,
Vedanta, Alcan zindabad'? 'Coca-Cola aage badho,
hum tumhaare saath hain'?
This then was the ideological climate in the
Supreme Court at the time the Sabharwal "affair"
took place.
It's important to make it clear that Justice
Sabharwal's orders were not substantially
different or ideologically at loggerheads with
the orders of other judges who have not been
touched by scandal and whose personal integrity
is not in question. But the ideological bias of a
judge is quite a different matter from the
personal motivations and conflict of interest
that could have informed Justice Sabharwal's
orders. That is the substance of this story.
In his final statement to the media before he
retired in January 2007, Justice Sabharwal said
that the decision to implement the sealing in
Delhi was the most difficult decision he had made
during his tenure as chief justice. Perhaps it
was. Tough Love can't be easy.
In May 2007, the Delhi edition of the evening
paper Mid Day published detailed investigative
stories (and a cartoon) alleging serious judicial
misconduct on the part of Justice Sabharwal. The
articles are available on the internet. The
charges Mid Day made have subsequently been
corroborated by the Committee for Judicial
Accountability, an organisation that counts
senior lawyers, retired judges, professors,
journalists and activists as its patrons. The
charges in brief are:
1. That Y.K. Sabharwal's sons Chetan and Nitin
had three companies: Pawan Impex, Sabs Exports
and Sug Exports whose registered offices were
initially at their family home in 3/81, Punjabi
Bagh, and were then shifted to their father's
official residence at 6, Motilal Nehru Marg.
2. That while he was a judge in the Supreme Court
but before he became chief justice, he called for
and dealt with the sealing of commercial
properties case in Delhi. (This was impropriety.
Only the chief justice is empowered to call for
cases that are pending before a different bench.)
.
3. The Midday journalists have been held for
contempt. Why? For an imagined insult to unnamed
judges!
That at exactly this time, Justice
Sabharwal's sons went into partnership with two
major mall and commercial complex developers,
Purshottam Bagheria (of the fashionable Square 1
Mall fame) and Kabul Chawla of Business Park Town
Planners (BPTP) Ltd. That as a result
of Justice Sabharwal's sealing orders, people
were forced to move their shops and businesses to
malls and commercial complexes, which pushed up
prices, thereby benefiting Justice Sabharwal's
sons and their partners financially and
materially.
4. That the Union Bank gave a Rs 28 crore loan to
Pawan Impex on collateral security which turned
out to be non-existent. (Justice Sabharwal says
his sons' companies had credit facilities of up
to Rs 75 crore.)
5. That because of obvious conflict of interest,
he should have recused himself from hearing the
sealing case (instead of doing the
opposite-calling the case to himself.)
6. That a number of industrial and commercial
plots of land in Noida were allotted to his sons'
companies at throwaway prices by the Mulayam
Singh/ Amar Singh government while Justice
Sabharwal was the sitting judge on the case of
the Amar Singh phone tapes (in which he issued an
order restricting their publication.)
7. That his sons bought a house in Maharani Bagh
for Rs 15.46 crore. The source of this money is
unexplained. In the deeds they have put down
their father's name as Yogesh Kumar
(uncharacteristic coyness for boys who don't mind
running their businesses out of their judge
father's official residence.)
All these charges are backed by what looks like
watertight, unimpeachable documentation.
Registration deeds, documents from the Union
ministry of company affairs, certificates of
incorporation of the various companies, published
lists of shareholders, notices declaring
increased share capital in Nitin and Chetan's
companies, notices from the Income Tax department
and a CD of recorded phone conversations between
the investigating journalist and the judge
himself.
These documents seem to indicate that while Delhi
burned, while thousands of shops and businesses
were sealed and their owners and employees
deprived of their livelihood, Justice Sabharwal's
sons and their partners were raking in the bucks.
They read like an instruction manual for how the
New India works.
When the story became public, another retired
chief justice, J.S. Verma, appeared on India
Tonight, Karan Thapar's interview show on CNBC.
He brought all the prudence and caution of a
former judge to bear on what he said: "...if it
is true, this is the height of
impropriety...every one who holds any public
office is ultimately accountable in democracy to
the people, therefore, the people have right to
know how they are functioning, and higher is the
office that you hold, greater is the
accountability...." Justice Verma went on to say
that if the facts were correct, it would
constitute a clear case of conflict of interest
and that Justice Sabharwal's orders on the
sealing case must be set aside and the case heard
all over again.
This is the heart of the matter. This is what
makes this scandal such a corrosive one. Hundreds
of thousands of lives have been devastated. If it
is true that the judgement that caused this
stands vitiated, then amends must be made.
Sealing fates: Is it Enron zindabad, to hell with the poor?
But are the facts correct?
Scandals about powerful and well-known people can
be, and often are, malicious, motivated and
untrue. God knows that judges make mortal
enemies-after all, in each case they adjudicate
there is a winner and a loser. There's little
doubt that Justice Y.K. Sabharwal would have made
his fair share of enemies. If I were him, and if
I really had nothing to hide, I would actually
welcome an investigation. In fact, I would beg
the chief justice to set up a commission of
inquiry. I would make it a point to go after
those who had fabricated evidence against me and
made all these outrageous allegations.
What I certainly wouldn't do is to make things
worse by writing an ineffective, sappy defence of
myself which doesn't address the allegations and
doesn't convince anyone (Times of India,
September 2, 2007).
Equally, if I were the sitting chief justice or
anybody else who claims to be genuinely
interested in 'upholding the dignity' of the
court (fortunately this is not my line of work),
I would know that to shovel the dirt under the
carpet at this late stage, or to try and silence
or intimidate the whistle-blowers, is
counter-productive. It wouldn't take me very long
to work out that if I didn't order an inquiry and
order it quickly, what started out as a scandal
about a particular individual could quickly
burgeon into a scandal about the entire judiciary.
But, of course, not everybody sees it that way.
Days after Mid Day went public with its
allegations, the Delhi high court issued suo motu
notice charging the editor, the resident editor,
the publisher and the cartoonist of Mid Day with
Contempt of Court. Three months later, on
September 11, 2007, it passed an order holding
them guilty of criminal Contempt of Court. They
have been summoned for sentencing on September 21.
What was Mid Day's crime? An unusual display of
courage? The high court order makes absolutely no
comment on the factual accuracy of the
allegations that Mid Day levelled against Justice
Sabharwal. Instead, in an extraordinary, almost
yogic manoeuvre, it makes out that the real
targets of the Mid Day article were the judges
sitting with Justice Sabharwal on the division
bench, judges who are still in service (and
therefore imputing motives to them constitutes
Criminal Contempt): "We find the manner in which
the entire incidence has been projected appears
as if the Supreme Court permitted itself to be
led into fulfilling an ulterior motive of one of
its members.
The nature of the revelations and the context in
which they appear, though purporting to single
out former Chief Justice of India, tarnishes the
image of the Supreme Court. It tends to erode the
confidence of the general public in the
institution itself. The Supreme Court sits in
divisions and every order is of a bench. By
imputing motive to its presiding member
automatically sends a signal that the other
members were dummies or were party to fulfil the
ulterior design."
Nowhere in the Mid Day articles has any other
judge been so much as mentioned. So the
journalists are in the dock for an imagined
insult. What this means is that if there are
several judges sitting on a bench and you have
proof that one of them has given an opinion or an
order based on corrupt considerations or is
judging a case in which he or she has a clear
conflict of interest, it's not enough. You don't
have a case unless you can prove that all of them
are corrupt or that all of them have a conflict
of interest and all of them have left a trail of
evidence in their wake. Actually, even this is
not enough. You must also be able to state your
case without casting any aspersions whatsoever on
the court. (Purely for the sake of argument: What
if two judges on a bench decide to take turns to
be corrupt? What would we do then?)
So now we're saddled with a whole new school of
thought on Contempt of Court: Fevered
interpretations of imagined insults against
unnamed judges. Phew! We're in La-la Land.
In most other countries, the definition of
Criminal Contempt of Court is limited to anything
that threatens to be a clear and present danger
to the administration of justice. This business
of "scandalising" and "lowering the authority" of
the court is an absurd, dangerous form of
censorship and an insult to our collective
intelligence.
The journalists who broke the story in Mid Day
have done an important and courageous thing. Some
newspapers acting in solidarity have followed up
the story. A number of people have come together
and made a public statement further bolstering
that support. There is an online petition asking
for a criminal investigation. If either the
government or the courts do not order a credible
investigation into the scandal, then a group of
senior lawyers and former judges will hold a
public tribunal and examine the evidence that is
placed before them. It's all happening. The lid
is off, and about time too.
--
Anivar Aravind
moving Republic
Peringavu.P.O
Thrissur-18
Kerala
http://anivar.movingrepublic.org/about
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