The Justice Sabharwal affair

Judge The Judges ~ But Don’t Spare Media!

Rajinder Puri
The Statesman, 17 October

Former Chief Justice YK Sabharwal allegedly passed judgments that gave business advantage to his sons. A group of lawyers published their findings to this effect. A Mumbai newspaper reported and commented on their findings. Delhi High Court slapped contempt of court case against the media persons and convicted them. They were sentenced to brief prison terms. The Supreme Court stayed the imprisonment and granted bail to the convicted while it judged the case. All this has led to what is described as the media-judiciary war.

The conviction of the mediapersons on grounds of committing contempt of court raised eyebrows. Should allegations in a media report against an individual judge be construed as contempt of court? Meanwhile, the movement against Justice Sabharwal gathered force. A large number of celebrities, including distinguished legal luminaries, entered the fray. There was a demand for a proper inquiry to clear the air.

Conflict of interest

What do media reports say against Justice Sabharwal? It is alleged that the judgments delivered by him gave advantage to his sons who were businessmen. Assuming this to be correct, was the judgment itself flawed or injudicious? After all, there were other judges on the bench who delivered the same judgments. However, if the outcome of the case under adjudication did affect the business interests of his son, there was clearly a conflict of interests confronting Justice Sabharwal. In the circumstances, should he not have removed himself from the Bench to avoid serious breach of propriety? That is where matters rest at present.

The controversy escalated after it became a judiciary-versus-media dispute.
Questions are being raised now about the system and about the need to ensure that there is accountability in judges. All this is very well. These are questions that should have arisen decades ago after innumerable incidents involving the judiciary.

Journalists patting themselves on the back claiming they fight for justice appear somewhat incongruous. Justice implies consistency. If ten persons flout the law but only one is questioned ~ would that be justice? The media remained silent during earlier judicial controversies. It is going to town on this. So, is it only to protect itself that the media is questioning the judiciary? People hope this movement against Justice Sabharwal will bring reform. They smell success. This scribe smells a rat.

In the forefront of the present campaign is former Chief Justice JS Verma. He goes so far as to demand that Justice Sabharwal’s controversial cases be heard again. It may be recalled that Justice Verma presided over the bench hearing the Jain Hawala case. To ensure fair investigation Justice Verma ordered the government to insulate itself from the probe. The investigation was monitored by the Supreme Court in camera. Only then did the CBI file charges against the accused. Amazingly, Delhi High Court dismissed that case because of inadmissible evidence, even though the Supreme Court had monitored the probe. More amazingly, the Supreme Court itself endorsed the High Court’s view regarding insufficient evidence! If the CBI had deliberately spoilt the chargesheets, could not the Supreme Court have prevented it, since the court was itself monitoring the case? What follows is perhaps most amazing.

During the hearings, Justice Verma disclosed in the open court that pressure was being exerted on him. Such pressure is criminal. But he refrained from naming anybody. So, was he abetting a crime? One of the petitioners in the case accused judges on the bench of moral turpitude, and of accepting bribes, through an article published in a small journal. Surprisingly, the judges chose to ignore the allegations that were being circulated in media circles and among lawyers.

Eventually, it was the Supreme Court Bar Association that slapped a contempt of court case against the petitioner. The article in question also alleged that Justice Sen had visited the house of a prime accused while the case was pending.

During consideration of the contempt case Justice Sen admitted to having visited the house of the Jain Hawala case accused while the case was pending. He claimed he did not know the accused’s identity when he visited him. But when he did get to know, why didn’t he remove himself from the Bench?

The court dismissed the contempt case. It described the allegations against the judges as scurrilous. Yet, amazingly, it refused to punish the petitioner. It appeared as if it wanted to bury the controversy and possible scandal as quickly as possible. As far as the Jain Hawala case itself was concerned, its final disposal was equally bizarre. The court ruled that the law be amended to create the post of the Central Vigilance Commissioner who could oversee the functioning of the CBI. Why did the court suggest this? It cited the Jain Hawala case for justifying the order. But the Jain Hawala case was dismissed because, according to the court, it had inadmissible and insufficient corroborative evidence!

After retirement Chief Justice Shamim of the Delhi High Court, who dismissed the case, accepted Chairmanship of the National Minorities Commission. Chief Justice Verma, after retiring from the Supreme Court, accepted Chairmanship of the National Human Rights Commission. Both appointments were made under LK Advani as the Union Home Minister. Advani was one of the prominent accused in the Jain Hawala case. Did the acceptance of these posts by both judges conform to any sense of propriety?

A pity

Participating in a seminar in 2004, Justice Verma said that the CBI had functioned poorly in the Jain Hawala case, which ought to be revived. A great pity he did not realise this while he headed the Bench that had supervised the CBI investigation until the time that chargesheets were filed. In August 2004 Justice Verma appeared on BBC’s Hard Talk, and lamented that moral standards of the judiciary had declined and that judges should be made accountable. One can only speculate on how he would rate his own performance during and after the Jain Hawala case. Today he virtually leads the campaign against Justice Sabharwal.

Through all this amazing judicial conduct during the Jain Hawala case, the media had remained mute. It was one among many instances of the media’s amnesia. The media’s underplaying this case was understandable. Forty national leaders, including the late Rajiv Gandhi, had been identified by the CBI for having received money in the Jain Hawala case. How can sauce for the goose be sauce for the Gandhi?

The author is a veteran journalist and cartoonist