Scandal
In The Palace
By Arundhati Roy
25 September, 2007
Outlook
India
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.
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."
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.
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.
This was exactly when his sons went into partnership with two mall developers.
Sealing helped malls; Sons & Co raked in the bucks.
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. 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.
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.
Click here
to sign the 'Investigate Justice Sabharwal Petition' to the President
of India
© Outlook Publishing
(India) Private Limited
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