Ex-chief justice under corruption panel scanner
AS reported by Nagendar Sharma in Hindustan Times New Delhi, June 09, 2008
In a development unprecedented in the country’s judicial history, the Central Vigilance Commission (CVC), the government’s anti-corruption watchdog, has forwarded a set of complaints with allegations of corruption and misconduct against former Chief Justice of India YK Sabharwal to the government for further action.
The complaint had charged Justice Sabharwal with deciding some cases to further the business interest of his family. “A bunch of complaints filed by a group called Campaign for Judicial Accountability and some individuals against the former CJI has been sent by the CVC to the ministry for necessary action”, a senior Law ministry official confirmed to Hindustan Times.
“There is no precedent of a complaint seeking criminal proceedings against a former CJI being examined by an institution like the CVC first, and subsequently being forwarded to the respective department for appropriate action,” the official said.
The matter has now been referred to the Law Ministry for “necessary action” by the CVC.
The complaints were filed with the CVC by a group of jurists known as Campaign for Judicial Accountability and some individuals seeking registration of an FIR against Justice Sabharwal on charges of corruption while he was in office.
The Law Ministry would have to take a call on a complaint of a serious nature against an individual who held the highest judicial office in the country. The complaint had charged Justice Sabharwal with deciding some cases to further the business interest of his family. “Acts of Justice Sabharwal in passing orders for sealing commercial establishments in Delhi at a time when his sons, staying with him were getting business partnerships with shopping mall developers need to be probed”.
Sabharwal, who had denied the allegations of having misused his official position to promote the business interests of his sons, in his only public reaction on the controversy in an article written in an English daily last year, was not available for his comments.
Senior Supreme Court lawyer Prashant Bhushan, who had filed the complaint with the CVC in November last year, demanded immediate registration of an FIR by the CBI.
"The CVC has found merit in the complaint and that is why it has been forwarded to the Law Ministry. What was required was an immediate FIR by the CBI under various provisions of the Anti-Corruption Act. The reference to the ministry would delay the matter", Bhushan said.
Law Minister HR Bhardwaj's office refused to comment on the issue, saying his views on the subject were well known that no legal immunity was available to a retired judge, whose status was that of an ordinary citizen.
Legal experts say there was a need to set-up a procedure to initiate probe against a retired judge of the Supreme Court.
"There is no mechanism presently in the Constitution or in any law other than the criminal law to examine the misconduct of a retired judge. It is time to devise a mechanism for an inquiry to be made, if a case is made out", senior lawyer Rajeev Dhavan said.
NEW DELHI: In a controversial interpretation of law, the justice department has cited an immunity clause for sitting on a corruption complaint forwarded to it by the Central Vigilance Commission against former chief justice of India Y K Sabharwal.
Responding to an RTI query about Sabharwal's case, the justice department on June 30 invoked Section 3(i) of the Judges (Protection) Act 1985 which bars courts from entertaining any civil or criminal proceedings against a sitting or retired judge "for any act, thing or word committed, done or spoken by him when or in the course of acting or purporting to act in the discharge of his official or judicial duty or function."
Since this immunity is essentially meant to protect a judge from litigants aggrieved with his orders, it is doubtful whether the same provision can also be used to protect Sabharwal against the allegation that his orders in the Delhi sealing drive case had benefited the real estate business of his sons.
In his detailed documentation before the CVC and CBI, advocate Prashant Bhushan alleged that while Justice Sabharwal's bench relentlessly took action against commercial premises in residential areas, his sons, Chetan and Nitin, had entered into partnerships with big mall and commercial complex developers.
Given the conflict of interest brought out by the complaint at the highest level in the judiciary, the government should have immediately taken cognizance of it under a caveat attached to Section 3(i). For, Section 3(ii)
says that nothing in Section 3(i) shall "debar or affect in any manner" the power of the government or courts to take civil or criminal action against "any person who is or was a judge."
Instead, on the RTI application of Delhi resident Subhash Chandra Agrawal, the government, while acknowledging that the CVC had forwarded Bhushan's request to it for "appropriate action," made a sweeping statement that "judges are protected under the Judges (Protection) Act 1985."
Despite the scope available to take action against Justice Sabharwal even after his retirement, the justice department said, "No specific provisions have been made in the Constitution for dealing with allegations against retired judges of the Supreme Court and high courts. There is no designated authority which has competence to look into the charges levelled against retired judges."
While pleading helplessness in the matter pertaining to Sabharwal and his sons, the government sought to display its concern for judicial accountability by pointing out that it had introduced a Bill in the Lok Sabha last year for empowering a judicial forum to deal with complaints against judges. But the Judges (Inquiry) Bill 2006, in its present form, does not hold retired judges to account.
In this case, the SC decided that "Each case has to be considered on its own facts. Furthermore, there may be cases where the question as to whether the sanction was required to be obtained or not would not be possible to be determined unless some evidence is taken, and in such an event, the said question may have to be considered even after the witnesses are examined. 13. In light of the above passage, we fail to see how tampering with the entries made in official registers, tearing of pages from different official registers and stowing them away in one's house can be related to the discharge of official duties. We do not have the slightest doubt that the allegations made against the accused related to acts that had no nexus or connection to the discharge of their official duties and, therefore, their prosecution on those allegations had no need of any sanction under Section 197 of the Code".