Strongly opposing justice(retd.) Nirmal Yadav’s plea for disclosure of documents relating to the earlier denial of prosecution sanction in her case, the Central Bureau of Investigation (CBI), on Thursday, submitted before the Punjab and Haryana high court that she could not use the high court to bypass the process of regular criminal trial before the trial court, where she could otherwise obtain the record by exercising the rights of an accused.
Appearing for the CBI, special public prosecutor, Anupam Gupta asserted that India was not a “Banana Republic” and its legal system is far better than the other countries of South Asia or Middle East under dictatorship, Gupta argued that the petitioner should face the trial and avail of her rights in trial court instead of rushing to the high court immediately after the chargesheet was filed against her by the CBI.
“If justice Yadav is allowed to approach the high court immediately after filing the chargesheet because she is a former high court judge, then the same right would have to be afforded to every other accused,” pressed Gupta. He further added that this would result in an “abortion of the criminal justice system”.
The CBI counsel pointed out that the 1981 judgment of the Supreme Court in SP Gupta’s case, upon which justice Yadav’s counsel KTS Tulsi had relied in order to claim disclosure, had been subsequently reconsidered by a larger bench of 9 judges in 1993.
And, Gupta added, the entire approach of the Apex Court towards disclosure of documents pertaining to appointment and transfer of judges had undergone a sea change.
Overruling SP Gupta’s case on the question of primacy of the Chief Justice of India (CJI) to the matter of appointment and transfer, the 9 member bench had held that the public interest required “exclusion of appointment and transfers from litigative debate”.
For this very reason, Gupta added, the Supreme Court had recently reffered the whole question of disclosure of information pertaining to the judiciary under the constitution and the RTI Act to a larger constitutional bench.
However, the accused had larger rights before the trial court including the right to summon documents, produce witnesses and cross examine prosecution witnesses both on the merits of the case and on the question of prosecution sanction, contended CBI counsel.
Concluding three day long arguments, the CBI counsel citing the Veeraswamy judgment said that a dishonest judge not only dishonours himself but jeopardizes the intergrity of the entire judicial system. A judge must keep himself “absolutely above suspicion” since a judicial scandal is regarded as more deplorable than a scandal involving the executive or legislature.
Appearing for the union government, advocate Ajay Kaushik adopted Gupta’s argument and also handed over, in sealed cover, 3 files relating to the case of union government’s department of personnel and training; legal affairs and justice.
Justice Permod Kohli aso directed the CBI to give the relevant documents in sealed cover within the course of the week.
The case has been adjourned for September 21 for rebuttal arguments by senior advocate KTS Tulsi appearing for justice Yadav.