Thursday, November 08, 2007

Breaking News: Supreme Court breaks silence on Justice Sabharwal issue

The Campaign for Judicial Accountability and Judicial Reforms had alleged that Justice Y.K.Sabharwal called for and dealt with the sealing of commercial property case in March 2005, though it was not assigned to him. “It is only the Chief Justice who can assign pending cases to various Judges. He was not the CJI at that time”, the CJACR said, annexing the copy of the order dated March 17, 2005 along with its press release issued on September 19, 2007. (At that time, Chief Justice was Justice R.C.Lahoti) The press release added that Justice Sabharwal, while responding to the Campaign’s charges in his article in the Times of India, did not answer this particular charge.

The CJAJR's rejoinder is here.

As I was intrigued by this charge, I filed an application under RTI seeking relevant answers from the Supreme Court. I am giving below my questions and the answers provided by Mr.Ashok Kumar, Central Public Information Officer, Supreme Court.

Q: With reference to the above order dated 17.3.05, was the CJI’s consent obtained to transfer the cases of commercialization of residential areas and the appeals arising out of the Delhi High Court judgment about the absence of power of sealing in respect of unauthorized construction or misuse, and post them for hearing before the Bench which issued the above order dated 17.3.05?

A: The matter was directed to be listed before the Bench of Hon’ble Mr.Justice Y.K.Sabharwal with the approval of Hon’ble the Chief Justice of India.

Q: Does the CJI have exclusive discretion on the distribution of cases? Is the CJI’s consent mandatory to post a case before a particular Bench?

A: The matters expected to be filed in the Supreme Court have been divided into 45 subject categories which have been further divided into various sub-categories. Each fresh matter is categorized as per those subject categories. Each subject category has been allocated to one or more Judges and the allocation has been fed in the computer. Subject to orders of Hon’ble the CJI, fresh matter are allocated to them through computer, as per the subject category.

When I sought CJAJR's convenor, Mr.Prashant Bhushan’s reaction to this, this is what he said: “The technical requirement might have been fulfilled with the consent of the CJI to listing the matter before Justice Sabharwal. But the question of conflict of interest remains unanswered.”

If we read the 17.3.05 order carefully, it is clear that Justice Sabharwal's order directing the sealing case to be listed before him stemmed from the suggestion of Ranjit Kumar, Amicus Curiae, and other counsel in the case.

The order says: "Learned counsel also seeks to challenge the expansion of the list of household industries as arbitrary. It is further contended that this aspect is intimately connected with the issue of commercialisation of residential areas, change of use of industrial areas for non-industrial purposes.

"It is expedient, and all learned counsel appearing also submit, that while dealing with the issues arising out of the 3rd and 4th Progress Reports (submitted by the Supreme Court Monitoring Committee set up in this case) and the issues as raised by the learned Amicus Curiae, it may be necessary to hear and decide the aspect of commercialisation of residential areas as well which was earlier deferred.

"Further, it is pointed out that Civil Appeal No.5413 of 2002 (D.Bhowmick & Ors. Vs. Delhi Development Authority & Ors) and other connected appeals arising out of the same judgment of the Delhi High Court holding about the absence of power of sealing in respect of unauthorised construction or misuse shall also be taken up for hearing along with these matters."

The question is, if the facts as shown above, indeed favour Justice Sabharwal, why did he not answer this particualr charge in his article in the Times of India? Was it inadvertent? Or does his silence reflect his expectation that the answer may well be provided by the Supreme Court? My previous post referring to this article is here.

1 comment:

Prashant said...

It is clear from the order of Justice Sabharwal of 17/3/05, that on that date when he issued the order there was no order of the Chief Justice or his consent in posting the matter before Justice Sabharwal. The registry may have completed the formality of listing the case of Bhowmick (the sealing of commercial property case) before him by taking the consent of the then CJI, but it is clear that though the MC Mehta case before him did not deal with the issue of commercialisation of residential areas, he deliberately decided to take up that issue (with some prodding from the Amicus, Ranjit Kumar, maybe), and did so precisely at the time when his sons were getting into the partnerships with the Shopping mall and commercial complex developers. So it is clear that this was a deliberately engineered conflict of interest on his part. This is why he chose to skirt this issue in his reply.
Prashant Bhushan