Issue 46 Vol II, August 31, 2007

L A W  &  J U S T I C E

Chief Justice of India in the Dock
Joginder Singh Toor

People felt aghast, when they learnt, that former Supreme Court Chief Justice Y.K.Sabharwal was involved in "dubious judicial deal making" that earned his sons huge profits. A group of former Judges and lawyers, including former Supreme Court Judge Krishna Ayer, former Law Ministers Shanti Bhushan and Ram Jethmalani, credible senior lawyers and citizens, have been espousing the need of judicial accountability.

The evidence collected by the group committed to the cause, led by Parshant Bhushan, advocate, as disclosed in a press conference, and reiterated on a T.V. Channel, showing documents, have revealed that "at least two companies owned by Chetan and Nitin- Pawan Impex (pi) and Harpawan Constructors (hc) – were operating from their father's private residence, 3/81, Punjabi Bagh, when the sealing drive was in full swing.

Even more surprising is the fact that for the greater part of 2004 Pawan Impex was operating out of 6, Motilal Nehru Place, the official residence of Justice Sabharwal, who was then one of the senior-most SC judges. According to documents filed by Pawan Impex with the Department of Company Affairs, its registered office was shifted from 3/81, Punjabi Bagh to 6, Motilal Nehru Place in January 2004. For the next 10 months, the house of a senior SC judge –Sabharwal – was also the firm's registered office. Documents from the Department of Company Affairs also reveal that on October 23, 2004, the promoter of one of the biggest shopping malls and commercial complexes in Delhi, Kabul Chawla of Business Park Town Planners (BPTP) Limited, was inducted in Pawan Implex as a 50 percent shareholder. On the same day, Pawan Impex's registered office was shifted back to its old address in Punjabi Bagh. Soon thereafter, Chawla's wife, Anjali Chawla, was also made a director in the company."

"In November 2005, Justice Sabharwal became the Chief Justice of India and by February 16, 2006 when he passed the "most difficult" order of his life to seal the commercial establishments operating from residential areas, his sons were on track to enter the mall and commercial complexes business in a big way, having sewn up partnerships with two of the biggest commercial real estate developers in Delhi."

"The Sabharwals' commercial complex development business took off thereafter. On June 21, 2006, Pawan Impex's share capital increased from Rs. 1 lakh to Rs.3 crore. Then, on September 30, 2006, the Chawlas of BPTP developers invested Rs.1.5 crores in the company. On August 22, 2006, Pawan Implex was given Rs.28 crore loan by the Union Bank of India. The loan was secured by mortgaging the "plant, machinery and other assets" lying in plots A-3, 4 and 5 in Sector 125, Noida. But, in fact, there is no plant or machinery here. Instead, a huge park – Park Centra – worth hundreds of crores is being built by BPTP Ltd."

"Sources in the Noida Authority have confided that these three plots (A-3, 4 and 5 in Noida's Sector 125) were allotted to Pawan Impex on December 29,2004 by the Mulayam Singh government then in power in UP at Rs.3,700/sq. meter, when the market price of commercial land here was at least Rs.30,000/sq. meter. Moreover, a commercial plot measuring 12,000 sq meters (plot 12A, in Sector 68) was allotted to another company owned by the Sabharwals, Sabs Exports, on November 10, 2006, at Rs.4000/square meter. The market price of commercial plots there at the time was at least 10 times as much." (Tehlka.com August 18, 2007)

The concern, emerging from the demand for judicial accountability and the need arising from the expose, strengthens the demand for a constant watch and judicial scrutiny of judges of the High Court and Supreme Court when required.

In the instant case, justice Y.K.Sabharwal has chosen to keep silent, which option according to another former Chief Justice of India justice .J.S.Verma would not be proper on the part of justice Y.K.Sabharwal?

The Constitution of India provided a mechanism in Article 124 for the removal of a judge of the High Court or of the Supreme Court according to the procedure to be laid down by a separate law by the Parliament. The Judges Enquiry Act, 1967 laid down a cumbersome procedure, which was neither workable nor practical.

All the political parties assured the People of India that a change would be effected in the mechanism by establishing a Judicial Commission, which did not culminate for want of consensus on its form and powers.

The latest move for establishing a Judicial Council by introduced a Bill in the Parliament, having been referred to a select committee, also suffers from rather grave lacunae. The Chief Justice of India is beyond its scope of enquiry, against whom a private complaint cannot evoke the provisions of the proposed bill. Only on the reference by the Speaker of the Lok Sabha or the Chairman of the Rajya Sabha a complaint against the Chief Justice of India can be entertained. The role of confidentiality, imposes an obligation on the complainant and every person who participates in the enquiry as a witness or a lawyer or in any other capacity, not to reveal the name of the judge complained of, nor the contents of the complaint, to any one including the media, would not only keep other persons who know more about the facts away from enquiry would rather scuttle its scope.

The organ of the State, on which the people repose highest faith, ought to be above suspicion. Any indictment, insinuation, allegation or charge against a Judge should rather be scrutinized in an open court, so as to dispel all suspicion.

Why should those who administer justice keep themselves out from any public scrutiny, and why should the people of India not nourish an expectation of their being in safe and clean hands. No body should be above law.

jogindersingh_toor@yahoo.com

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