Arun Shourie, scholar, author, former editor and minister, writes in his new book  Anita gets Bail – What Are Our Courts Doing? What Should We Do About Them? that despite the judiciary being a sturdy dyke that has saved India from the excesses of its rulers, cracks have emerged in recent times. Excerpts:

Today, the judiciary is among the few institutions—perhaps one of just two or three—that still commands respect. It is one of the few from which the people at large still expect something. And it has many, many sterling achievements to its credit.

First of all, such accountability as survives in public life does so only because of the judiciary and sections of the media—more accurately, because of a few judges, and a few journalists.

Second, for seventy years, the judiciary—in particular, the Supreme Court—has been the dyke that has preserved free speech.

Third, the singular check that exists today against misuse of its power by Parliament is in place solely because of what the Supreme Court decided in Kesavananda Bharati. Similarly, one has only to recall how frequently and with what impunity Article 356 used to be unleashed by the executive before the Supreme Court’s judgment in Bommai’s case and how few the attempts to misuse it have been since to realize what a salutary check the judiciary has been on excesses of the executive.

Fourth, some of the most salutary improvements, however limited they may be, that have occurred in the last few years in our public life, have occurred because of initiatives taken by the courts, indeed, by the courts reaching beyond what many would argue are its proper limits. Recall, for instance, the change that the Supreme Court brought about in the nomination form that candidates must file when they stand for elections. I was in government at the time, and can testify from personal knowledge how intensely ever so many politicians, among them prominent ministers, opposed the Supreme Court’s suggestion to the Election Commission that the nomination form include both the educational background and the criminal antecedents of candidates. Similarly, the more recent change by which those who have been convicted are barred from holding office or contesting elections would never have come about if the matter had remained in the hands of the political class. As we have seen, it is only because of the Supreme Court that today, several conspicuous politicians are not able to sit in legislatures and decide the laws under which we shall live, indeed to decide the ways in which our Constitution itself will or will not be amended…

Therefore, I am among those who feel deeply indebted to the judiciary—both as a citizen and as one whose work is to read and write…

The number of judges one has to convince to bring about a change is far fewer than the number one must convince to bring about the same change via legislatures, for instance. Moreover, judges as a class are far better informed than, say, our legislators or even ministers as a class…

All this is true, but it is equally true that there are grounds for concern.

Recall, for instance, the direction that the discourse on the collegium of judges has taken over the last few years. After bitter experience, an instrument was devised to wrest back the key from the robber, if I may use a phrase I had to use in regard to the second Transfer of Judges judgment—an instrument to limit the power of the executive to determine the selection and postings of judges. Over the years, the very authors of the device came to feel that the collegium had become a forum for judges—and that too, the senior-most judges—to strike bargains over nominees. The executive used the criticisms to try and grab back the power. To every thinking person’s relief, the Supreme Court defeated that effort. But that the field could be prepared for such an attempt to be made showed that all had not been well. And that in future the collegium would have to be guided even more by manifest merit of the candidates than has been the case in the past.

Second, while it is true that there is a once-in-a-lifetime opportunity for the judiciary to trigger a new beginning—for instance, consider stemming corruption—it is equally true that the opportunity is not being grasped as firmly as it needs to be. Every so often, cases in courts wax and wane in accordance with the convenience of those who happen to be in power. And not just in regard to corruption—recall the way several cases of terrorist blasts, or of inciting riots, or of fake encounters have gone. That evidence is being diluted or perverted is evident to all—it must be even more so to the judges who are hearing the case from day to day and are, therefore, so much better placed to discern the changes. And yet right in front of their eyes the prosecution emphasizes one thing one day and buries it the next. And the judges sit and watch silently…

BEING ABOVE SUSPICION

Few would today say that the judiciary is ‘above suspicion’. Every time one hears allegations about how a magistrate or judge has been suborned, one’s heart breaks. I say this from personal experience, having worked in The Indian Express that was often set upon by the rulers…. It is because The Indian Express was seen to be acting in the public interest that, every time Rajiv Gandhi’s government raided us or filed cases and set up inquiries against us, our circulation went up… If people begin to feel that judges are not above board, if they get convinced that, the compassion of judges as individuals notwithstanding, the system has become heartless, they will not stand by the judiciary when the executive or legislators of the day raise their hand against the institution…

A WRONG DELIVERY BRINGS A REALITY TO LIGHT

On 13 August 2008, a person came and delivered a packet to the guard at the residence of Justice Nirmaljit Kaur, a judge of the Punjab and Haryana High Court. A member of her staff brought it to her saying that a person had brought case papers from Delhi. She asked him to open the packet, and was shocked to see that in fact the packet contained money—Rs 15 lakh. She had her staff seize the courier. Police were called. The man was taken into custody. The judge also immediately informed the Chief Justice of the High Court. Interrogation of the courier and further inquiries revealed five things:

• The courier was the junior munshi of the then additional advocate general of Haryana, Sanjiv Bansal.
• The money was meant for another judge of the High Court—Justice Nirmal Yadav: one explanation is that the munshi was told to deliver the money to ‘Nirmalji’, he heard ‘Nirmaljit’ and thus helped the cause of probity.
• The money was a bribe in lieu of a favourable judgment that had been handed down earlier in regard to a property case, a case in which the then additional advocate general, Sanjiv Bansal, was an interested party.
• According to the CBI, the judgment had been delivered ‘under the influence of’ a businessman, Ravinder Singh, ‘who had close association’ with the judge.
• The businessman had paid the money through a hotelier based in Delhi.

The case was first taken up by the state police. It was later transferred to the CBI. According to the CBI, the money not having reached her, Justice Nirmal Yadav again demanded Rs 15 lakh. This amount was delivered to her the next morning, 14 August 2008.

As we know, a judge can be prosecuted only after obtaining sanction of the appointing authority, in this case the president of India. In Veeraswami’s case, the Supreme Court ruled that, in determining whether to sanction prosecution, the president must consult the Chief Justice of India. In a host of judgments, the court has also laid down that the ‘consultation’ must be ‘full and effective’…

There was a difference of opinion within the CBI between the Director, Prosecutions, who felt that prosecution was not warranted, and the Director, CBI, who felt that it was. Accordingly, in accordance with what its manual prescribes, the CBI wrote to the government to seek the opinion of the attorney general.

From this point on things began to get curiouser and curiouser.

The attorney general was Milon Banerjee. He rendered an opinion that can only be described as Nelsonian. Remember that by now the CBI had already established the key facts. Apart from the Rs 15 lakh having been delivered, apart from the statements of the munshi and others, the CBI had uncovered additional indications of the close acquaintance of Justice Nirmal Yadav and Ravinder Singh—for instance, telephonic conversations, as well as air tickets, mobile phone, etc., that had been gifted to the judge by this person. Furthermore, the CBI found out that Justice Nirmal Yadav, her brother (then the finance minister of Haryana), Ravinder Singh and others had joined together to acquire land in Solan, Himachal Pradesh, and for this undue influence had been used. Banerjee was not moved… Banerjee wrote:

Therefore, even assuming for the sake of argument that Justice Nirmal Yadav had demanded Rs. 15 lakhs, there is absolutely no evidence to prove that Shri Ravinder Singh was in any manner or was likely to be in any manner concerned in any proceedings or business transacted or about to be transacted by Justice Yadav or that accused Ravinder Singh was having any connection with the official function of Justice Yadav…

Are ‘official relations’ between a judge and the source of money necessary? Does the source of the money need to have a connection with ‘the official function’ of the judge?…

By now a series of changes had taken place fortuitously. Chief Justice K.G. Balakrishnan had been succeeded by Justice S.H. Kapadia. Law Minister H.R. Bharadwaj had been succeeded by Veerappa Moily. And Milon Banerjee had been succeeded by Goolam E. Vahanvati as attorney general, another officer of law committed to probity.

Media published reports that the CBI had been refused permission to proceed with the cash-at-the-doorstep case. On 15 July 2009, the law minister recorded on file:

The allegations made herein are quite serious in nature. These allegations cannot be brushed aside only on technical grounds. The case in question, if not pressed will erode the faith of people in the judiciary.

In view of the above, I strongly feel that the matter may be referred to the present Attorney General for opinion and examining the matter on merits.

On 19 November 2009, the CBI sent its detailed response to the Ministry of Personnel, and requested that the matter be examined again and the opinion of  the new attorney general be sought.

Vahanvati too shut an eye: whereas Milon had ensured that, in addition to other aspects of the matter, he would not see the transactions relating to the purchase of land by Nirmal Yadav, Ravinder Singh and others, Vahanvati ensured that he would not see the main question—the Rs 15 lakh that had been wrongly delivered…

On 7 December 2009, D.R. Meena, secretary, Ministry of Law and Justice, wrote to the director, CBI, that ‘sanction for prosecution has been declined on the grounds that after analysis of the available evidence, the learned attorney general of India has observed that there is not a shred of evidence that the said alleged offences were committed by Sanjiv Bansal, Ravinder Singh and Nirmal Singh in conspiracy with Justice Yadav’ and that ‘the matter had been discussed with the CJI, who had observed that no action was required for the present’.

Accordingly, the CBI filed a ‘closure report’ in the court of the special judge on the ground that sanction for prosecution had been refused by the competent authority.

This too hit the headlines—that sanction had been refused after consultation with the Chief Justice of India. On 10 February 2010, the secretary general of the Supreme Court wrote to newspapers that the matter had not been referred to the Chief Justice, and that he had not recommended that sanction for prosecution be refused.

On 26 March 2010, the special judge turned down the ‘closure report’, and directed the CBI to investigate the matter further.

The question was now properly referred to the Chief Justice of India. Since May 1997, a procedure had been laid down for dealing with such instances. In accordance with that the Chief Justice set up an internal committee of three judges—the Chief Justices of the High Courts of Allahabad and Gujarat and a judge of the Delhi High Court. The committee examined nineteen witnesses, including Justice Nirmal Yadav, Justice Nirmaljit Kaur and others. It examined documents as well as records of telephonic conversations. The examination led it to infer that the Rs 15 lakh was indeed meant for Justice Nirmal Yadav.

Eventually, on 1 March 2011, two-and-a-half years after the misdelivery, the president accorded his sanction for prosecuting Justice Nirmal Yadav. A year after her name figured in the case, Justice Nirmal Yadav was transferred to the High Court of Uttarakhand where, of course, she continued to dispense justice.

It is only on 4 March 2011—two-and-a-half years after the incident—that the CBI filed a charge sheet. Justice Nirmal Yadav was accused of corruption, and, along with others, of criminal conspiracy. The charge sheet also mentioned land that she, her brother (then finance minister of Haryana), and other relatives had purchased in Himachal Pradesh the day after the money was delivered—to the wrong address! March 4, 2011 happened to be the last day of her tenure as a judge: she retired that day…

…Several lessons leap up from the sequence:…

The odd decision of transferring Justice Nirmal Yadav to the High Court of Uttarakhand even as she was under such a dark cloud. Why saddle courts—whether it be the Calcutta High Court in the case of Justice Karnan, or, as has happened ever so frequently, the courts of Sikkim and other hapless states in the Northeast, or that of Uttarakhand for that matter—with such eminences?…

And, of course, above all these is the central question: what does such a sequence—one in which nine years after it burst into the public arena, a case involving a judge of a High Court is still in the first stage—do to the image of the judiciary as a whole? Are people liable to conclude that the system is geared to swiftly excise a tumour or that it is designed so that a fellow judge will get the most indulgent consideration?…