Friday, August 17, 2007

Justice Y.K.Sabharwal under a cloud: Justice J.S.Verma's view

Even as Justice Sabharwal refuses to answer the allegations made against him by the Campaign for Judicial Accountability and Reforms, it appears the controversy is unlikely to die down. (The previous post is here) Yesterday, Karan Thapar in his India Tonight discussion programme on CNBC channel, interviewed Prashant Bhushan in Part-I, and former Chief Justice of India, Justice J.S.Verma in Part-II. While Prashant Bhushan reiterated his allegations, and inferences, it is interesting to know what Justice Verma has said. For those of us who missed the programme, I am giving below the gist of Justice Verma's views:

1. If the facts regarding Justice Sabharwal's sons benefitting from his orders on sealing were true, (he wished that they were not), then it is a serious matter, affecting the credibility of the Judiciary.
2. Silence is not an option for Justice Sabharwal; he should seek to answer the allegations, and clear his name.
3.If the facts as alleged are true, then Justice Sabharwal's directions on the sealing case must be set aside, and the case heard afresh once again. The orders stand vitiated because of the clear conflict of interests, apparent from the facts.
4. If Justice Sabharwal continues to be silent, then there is a clear duty on the part of the present Chief Justice of India to intervene, have the matter probed, and if the conflict of interests is established, then set aside Justice Sabharwal's directions in the sealing case, and post the matter again before an appropriate Bench for rehearing.
5. Only the Chief Justice has the power to allot a case before a Bench. Therefore, Justice Sabharwal's action in ordering that he would also deal with the case of commercial establishments (which was admitted by the Supreme Court in 2003, but was not posted before him) on March 17, 2005, was improper.

More than these specific reasons, what I liked in the programme, was Justice Verma's reference to the Re Pinochet case. The details of the case I downloaded from the book, The English Legal System : By Gary Slapper and David Kelly, 2004 (Routledge) (p.229.). The link is here.

For those of us, who can't get the exact page, I am giving the details here. In November 1998, the House of Lords rejected the Spanish dictator, Pinochet's claim that as the head of State at the time when the crimes were committed by him, he enjoyed diplomatic immunity. The question was whether he could be extradited to Spain from the U.K. for the crimes committed by him. The House of Lords rejected his claim by 3:2 majority. Lord Hoffmann voted with the majority, but declined to submit a reasoned judgment.

Amnesty International had been granted leave to intervene in the proceedings, and had made representation through its counsel prior to the hearing in House of Lords.

After the Pinochet decision, it was revealed that Lord Hoffmann was an unpaid director of Amnesty International Charitable Trust and that his wife also worked for Amnesty.

Pinochet's lawyers petitioned the House of Lords. In January 1999, another panel of Law Lords set aside the decision of the earlier hearing on the basis that Lord Hoffmann's involvement had invalidated the previous hearing. The decision as to whether Pinochet had immunity or not was heard by a new and differently constituted committee of Law Lords.

English legal system is famously rigorous in controlling conflicts of interest which might be seen to affect a neutral decision making process. Mere possibility of a conflict of interest is sufficient to invalidate any decision so made, even if in reality, individual concerned was completely unaffected by their own interest in coming to the decision.

Lord Hoffmann could have assumed that Pinochet's lawyers were aware of the connection. His support for a charity was so worthy in itself as to be unimpeachable, he might have thought. But Lord Hoffmann was held to be wrong on both the counts. Once it was shown that he had a relevant interest in its subject matter, he was disqualified without any investigation into whether there was a likelihood or suspicion of bias - unless he had made sufficient disclosure.

5 comments:

Anonymous said...

There are strong rumours of Criminal Investigation in this matter. I feel the criminal investigation if any should be done under the supervision of a All party Parliamentary Committe, akin to that of the impeachment proceedings. The CBI and other agencies must report to the All party parliamentary committe, consisting of eminent and accepted citizens of India, which may include a former President of India as well.

V.Venkatesan said...

I disagree. If the CBI prima facie finds any substance in the allegations, then it should proceed with the investigation with complete autonomy. Subjecting the CBI to an all party committee will whittle down its independence.

We know what happened to the V.Ramaswami matter, when impeachment proceedings failed because MPs' partisan conduct. Strong regional undercurrents, like the Tamil MPs reluctance to impeach a Tamil Judge influenced the Congress decision to abstain from the vote. There is a case for keeping out political factor while considering a Judge's misconduct.

I found Justice Verma's reliance on the Re: Pinochet case very persuasive. If the facts suggest a clear conflict of interest, the the Judge gets disqualified from hearing a case. Even if there are genuine doubts, whether the conflict of interests indeed happened is immaterial.

Therefore, it is possible to suggest that YKS may not have had his sons' business interests in mind while passing the sealing orders or that his sons' malls did not at all benefit from the sealing orders. What is important to establish conflict of interest is the mere possibility - there is no need to actually prove that this possibility was not just fictional, but real.

Mir said...

Hello... this is my first visit to this blog.
I am a stranger to the world of Law.

Can anyone please tell me why hasn't this post mentioned any kind of punishment etc. fro Mr. Sabharwal?
Shouldn't he be tried and sentenced...?

V.Venkatesan said...

Dear Mir,
Thanks for visiting our blog. Since Justice Sabharwal has retired, he cannot be impeached by Parliament. The allegations about his sons' disproportionate acquisition of wealth within a short span during his tenure needs to be investigated and proven. There is a view that since prima facie these allegations appear to be true, the police must register a FIR and proceed with the investigation.
Still, the police would not be able to establish conflict of interests, it would be better if the Judiciary itself examines this aspect, and comes to a conclusion, following the precedent set by the House of Lords in Re Pinochet case.

Anonymous said...

When Judges and other enforcers and keepers of the law and justice do these kind acts, they should be tried and punished under a special law system that is 10 times more severe than the common law.
Other wise India will have another revolution/freedom fight from these corrupt judiciary, bureaucracy and politicians