Two developments have
attracted adverse attention to the procedures adopted for appointing
senior judges. The first is the assent given by the President to the
appointment of Justice Jagdish Bhalla as Chief Justice of the Himachal
Pradesh High Court. The second is the admission by the government that
between January 1999 and July 2007, 351 additional judges were made
permanent by successive Chief Justices of India without consulting the
collegium of the apex court — or a constituted panel of senior judges —
against rulings of the Supreme Court itself.
These episodes highlight issues not merely relating to judicial
appointments but also the way in which a judge of questionable
integrity should be penalised. Who judges judges? Should they be
accountable only to other judges? These questions need to be debated
not only by the judiciary but by all citizens.
In January 2006, a proposal to elevate Justice Bhalla as CJ of the
Kerala High Court — that had been initiated despite the opposition of
at least one senior judge in the SC collegium — was withdrawn due to
the opposition of former President APJ Abdul Kalam.
Subsequently, after he was sought to be elevated as CJ of HP, three
eminent lawyers — two former Union Law Ministers, Ram Jethmalani and
Shanti Bhushan, and eminent jurist Fali S Nariman — drafted a
notice/petition for the presentation of a motion for the removal of
Justice Bhalla under the provisions of the Judges Inquiry Act, 1968. It
is understood that several MPs have already signed the petition. If the
notice is signed by either 100 MPs belonging to the Lok Sabha or 50 MPs
of the Rajya Sabha, the Speaker of the Lok Sabha or the Chairman of the
Rajya Sabha would have to constitute a three-member committee to
investigate the veracity of the allegations.
Three sets of allegations have been levelled against Justice Bhalla.
While he was serving as a judge of the Lucknow bench of the Allahabad
High Court in 2003, his wife Renu purchased a plot of land measuring
roughly 7,200 sq m off the Greater Noida expressway through two
separate sale deeds dated July 21, 2003, for sums of Rs 1 lakh and Rs 4
lakh respectively, from Veena Goel, wife of Moti Goel, and from Anshu
Bhale, son of VK Jain.
On March 28, 2005, the Deputy Superintendent of Police, Noida, wrote to
the District Magistrate, Noida, pointing out that during an
investigation into various criminal cases of cheating, forgery and
corruption against Moti Goel, described as a “leader of a land mafia”,
he had come across evidence that Goel had been involved in acquiring
and selling land belonging to the gaon sabha (village council), which
needed further investigation by a revenue official. The DM marked the
DSP’s note for investigation to the Sub-Divisional Magistrate.
The SDM, in two reports to the DM dated June 21 and September 30, 2006,
confirmed the DSP’s findings that plots of land belonging to the gaon
sabha had been illegally acquired by members of the so-called mafia
including Goel. The report of the SDM pointed out that Goel and his
associates had sold portions of the illegally acquired land to certain
influential persons for amounts that were way below prevailing market
prices. The SDM stated there were a number of legal disputes relating
to these plots of land and several criminal cases were pending against
Goel in several courts in UP.
Significantly, the SDM specifically stated that Renu Bhalla was sold a
plot for Rs 5 lakh against its market price that was nearly 150 times
higher at Rs 7.2 crore! According to the SDM, even at the ‘circle rate’
(or the official minimum rate at which the government can acquire land
in that area for public purposes), the plot of land would be valued 10
times higher at Rs 72 lakh.
The second charge against Justice Bhalla is that as a senior judge of
the Lucknow bench of the Allahabad High Court, he ordered the
constitution of a special bench after court hours (in fact, close to
midnight) on July 7, 2006, to hear a petition that was un-numbered and
unregistered pertaining to Reliance Energy Generation Ltd. located at
Noida. What was out of the ordinary was that Justice Bhalla’s son,
Aarohi Bhalla, was acting as the counsel for Reliance.
Moreover, the Lucknow bench did not have territorial jurisdiction to
entertain the case as Noida falls under the jurisdiction of the
Allahabad bench of the court. Justice Bhalla ordered the constitution
of a special bench comprising Justices Bhanwar Singh and SN Shukla that
not only heard the petition, but proceeded to pass final orders in
favour of the company without issuing a notice to the UP government.
In July 2006, many farmers living in a cluster of villages in Ghaziabad
district of UP had conducted a series of demonstrations against the
acquisition of land owned by some 2,500 families to set up a large
3,000 MW power project by Reliance Energy. Because of the agitation by
the evictee families, the company had approached local police officials
who reportedly advised the firm to obtain a court order that would
facilitate the eviction process.
The third set of allegations against Justice Bhalla is that he misused
his position and influence to change the allotment of several plots of
land for himself as well as his son, brother, sister, brother-in-law
and sister-in-law in Lucknow. These allotments were changed from new
sectors to developed sectors (where land values were substantially
higher) through the discretionary powers vested with the Vice-Chairman
of the Lucknow Development Authority.
The government’s admission that the appointment of many judges had been
confirmed without consulting the SC collegium came in the wake of a
petition by Bhushan challenging the decision of the current CJ of India
KG Balakrishnan to regularise the appointment of Justice A. Ashok Kumar
in the Madras High Court. Between 2004 and 2006, the additional judge’s
services had been extended from time to time as a former SC judge and
collegium member, Justice Ruma Pal, had objected to his confirmation as
a regular judge.
The process of removing a sitting judge — the word ‘impeachment’
is never used in the Constitution — is hardly simple.
After the requisite number of MPs have signed a petition and the
Speaker/Chairperson of the Lok Sabha/Rajya Sabha has constituted a
panel — comprising a sitting judge of the SC, a CJ of a HC and an
eminent jurist — the committee examines the allegations against the
concerned judge. If the committee finds the judge not guilty, the
motion automatically lapses.
If, however, the committee finds the judge guilty, the motion seeking
his removal has to be taken up by one or both Houses of Parliament.
Thereafter, if the motion is approved by a three-fourths majority of
MPs present and voting, the judge would be considered removed.
In independent India, four unsuccessful attempts were made to impeach
senior judges. Attempts were made to initiate a process of impeachment
against two former CJs of India, AS Anand and MM Punchhi, and former CJ
of Madras High Court Subhashan Reddy. In 1993, for the first and only
time, after receiving the signatures of over 100 MPs, the Lok Sabha
Speaker constituted a committee to investigate charges against former
SC judge V Ramaswami. The committee held the judge guilty of purchasing
furniture and other goods in an irregular manner that had been pointed
out by a government auditor. Still Justice Ramaswami was not removed
because MPs belonging to the ruling Congress party decided to abstain
from voting on his impeachment motion.
Corruption in the Indian judiciary is a subject that is often discussed
in private, less so in public. This needs to change.
http://www.hindustantimes.com/StoryPage/StoryPage.aspx?id=dc2a9c6e-f378-4290-9077-a34d2eaa
548f&&Headline=Immune+system
Copyright @ Hindustan Times.
