The judiciary has done the country proud despite failures and aberrations, mostly in its lower rungs. However, the dark chapter of the Emergency apart, the superior judiciary has generally inspired confidence and assurance that justice and the rule of law shall ultimately prevail.
There have however been rumblings over recent reports of malfeasance in the higher judiciary. Petitions have been filed, inquiries made and impeachment proceedings initiated involving high judicial functionaries. These have come to naught for a variety of reasons.
Seemingly well documented allegations have been levelled at Chief Justices of High Courts and judges of the Supreme Court and cases made out for not selecting some for higher appointments, but to no avail. A listing of these cases is to be found on the website of the Campaign for Judicial Accountability and Judicial Reforms (www.judicialreforms.org) and make distressing reading.
Nevertheless the demand for judicial accountability and a transparent procedure for the appointment, transfer and promotion of judges remains. In response, the Government drafted the Judges Inquiry Bill, 2005 and sent it to the Law Commission, which submitted its recommendations and amendments in January 2006. And there the matter rests, partly because Parliament has found little time for serious debate.
The Law Commission’s letter of transmittal to the Law Ministry emphasised that “Judicial independence is not absolute. Judicial independence and accountability are two sides of the same coin”. That remains the crux of the matter and must be the starting point of judicial reform.
What has now caused considerable dismay and surprise is the grave charge levelled against the just retired Chief Justice of India, Y K Sabharwal by eminent peers including Shanti Bhushan, Justice Krishna Iyer and Justice P B Sawant, all patrons of the Campaign for Judicial Accountability and Judicial Reform. The allegations were detailed at a press conference but received only a modicum of publicity.
A press statement was distributed, has been posted on at least three websites and was the subject of a vivid broadcast discussion anchored by Karan Thapar with senior advocate of the Supreme Court, Mr Bhushan, and a distinguished former CJI, J S Verma, as participants. Tehelka carried the story in print. Mr Sabharwal was pressed to furnish his side of the story but remained unavailable as though above the fray. But silence in the circumstances can lead to damaging inferences.
Equally surprising, the media, otherwise prone to make “breaking news” out of chaff, has ignored the story while the Bar has maintained a stiff upper lip, saying nothing. Is there then a conspiracy of silence? Why?
The charges against Justice Sabharwal, spelt out by the Campaign, predicates a conflict of interest as his sons were allegedly beneficiaries of his orders. The narrative is based on documents supplied by them to the Company Law Department. In brief, Justice Sabharwal, and later as CJI, gathered to himself as presiding judge certain cases pertaining to Master Plan (2001) violations through misuse of residential properties for commercial purposes in Delhi between 2004 and 2006, and passed sealing orders thereon.
Nothing untoward about this in itself but for the fact that his two sons, Chetan and Nitin, small time import-export businessmen, decided at this very juncture to take up real estate business where they made a killing, with mall and commercial property values skyrocketing as residential properties were targeted under Justice Sabharwal’s orders.
During this same period, their business offices were moved for a while from the family home in Punjabi Bagh to the official residence of Justice Sabharwal at No. 6 Motilal Nehru Marg. Concurrently, certain leading real estate developers decided to collaborate with the sons and one of the new entities thus formed, Pawan Impex, was subsequently to receive a Rs 28 crore loan from the Union Bank against a collateral of Rs 18 crore of “projected income from prospective buyers”! The Income Tax Department got interested.
Everybody would like to believe that there must be a simple and credible explanation and that Justice Sabharwal, otherwise described as an exemplary judge, would swiftly dispel all doubt and suspicion by putting the record straight. Sadly, this has not happened. The former CJI has chosen to remain studiously silent. Yet silence can be more eloquent than words. He has even now the opportunity to speak and dispel all doubts and will hopefully do so.
If not, what can be done? Contempt no longer applies, as truth can now be used as a defence. A retired Judge cannot be impeached. Since the Judge did not recuse himself at the time, knowing that there was or had developed a conflict of interest, can or should the relevant orders he passed be re-heard?
Does the Bar, the Bench, Parliament and the Government have no role but to watch and wait until corruption and untruth overwhelms us all? Justice is blind, it is said. But woe betide the land if Justice is not just blind but becomes deaf and dumb as well.
