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High Court — that had been initiated despite the opposition of at least one senior judge in the SC collegium — was withdrawn due to the opposition of former President APJ Abdul Kalam.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.
(Paranjoy Guha Thakurta is an educator and an independent journalist)