Above: Supreme Court/Photo: Anil Shakya

A new book attempts to fill in crucial gaps on some recent controversial cases handled in the last few years by the Supreme Court

By Venkatasubramanian

The year 2018 was, among other things, known for tumultuous events in the Supreme Court, with the unprecedented press conference held by four senior judges on January 12 providing the backdrop to the crisis brewing within it. The four judges were reluctant to share the full details of their differences with then Chief Justice of India (CJI) Dipak Misra, keeping the institutional interests in mind. They seemed unhappy not just with the CJI, but some of his predecessors too over their style of functioning, ignoring established conventions and thus compromising institutional reputation for independence and fairness. While many observers complimented the judges for biting the bullet and sought full transparency in the functioning of the apex court, they were disappointed that there was no sufficient light on whether these issues were subsequently resolved or allowed to linger. It appears as though institutional interests would demand that the judges remain discreet about their differences at least till such time as key stakeholders are able to speak about the issues dispassionately, unencumbered by the compulsions of their offices.

But such compulsions are unlikely to deter journalists, and the general public who are curious about the events that made the headlines for several weeks. The book, Loose Pages: Court Cases That Could Have Shaken India, co-authored by journalists Sourya Majumder and Paranjoy Guha Thakurta, seeks to fill the gaps on two issues—the Birla-Sahara papers and Kalikho Pul’s suicide note—which clouded the tenure of former CJI JS Khehar, the immediate predecessor of CJI Dipak Misra.

The title of the book is self-explanatory. Loose Pages refers to specific documents and materials scattered around us, but which needed to be weaved together to provide a coherent narrative to explain the controversies which occupied the front pages of newspapers, but vanished due to the reluctance of media houses to follow them up for fear of inviting contempt of court. Majumder and Thakurta, however, show no hesitation in pursuing the truth without compromising professional demands. They sought the responses of each of the participants in these twin controversies, although most did not even acknowledge their detailed questionnaires.

In October 2013, officers of the CBI raided the premises of the Aditya Birla Group. The raids took place following a Supreme Court-monitored probe into alleged irregularities in the allotment of acreages bearing coal for captive consumption by private firms. They recovered Rs 25 crore in cash kept in an almirah. They also recovered several hard disks of computers, as well as many papers, notebooks, etc.

These documents showed that large amounts had been paid at various times to numerous public servants, including politicians, as well as officers of the Directorate of Revenue Intelligence and other government departments, particularly those in the Union ministry of environment, forests, and climate change. One of the documents seized from the computer of a senior executive of a company in the Aditya Birla Group (ABG), Shubhendu Amitabh, shows a cryptic entry suggesting a payment of Rs 25 crore to the then chief minister of Gujarat, Narendra Modi.

The CBI handed over these documents to the Income Tax (IT) department, which produced a four-volume report after an inquiry. IT found that ABG was getting large amounts of cash through hawala dealers and regularly disbursing the money to various public servants.

In November 2014, IT raided the Sahara Group of companies and recovered cash worth Rs 137 crore from its pre­mises, together with documents. One of the hard disks recovered contained a spreadsheet showing details of payments of Rs 113 crore to various people in public life, and a receipt of Rs 115 crore in cash from various sources, including the Sahara Group. The spreadsheet was very detailed, showing not only the amounts paid on different dates but also the place of payment, those who had taken the money and those who had received the cash.

When petitions were filed in the Supreme Court seeking a probe into the documents, they were heard by Justice Khehar. When the petitioner objected to Justice Khehar hearing the matter on the eve of his appointment as CJI, it was assigned to Justice Arun Mishra, who later found the documents lacking evidentiary value and dismissed the petitions.

The book throws light on how a large corporation manages not just the civil service and political leaders, but investigative agencies as well when it comes to regulatory and tax disputes and obtaining environmental clearances. In their planning and operations, corporate captains and their senior executives rely on spreadsheets; they plan and coordinate their interactions with different sets of public officials, elected or otherwise, reveals the book.

Entries are made and updates relayed to senior executives by those below them in the hierarchy on a regular basis through private email servers and text messages, it claims. Many crucial developments in policy-making related to the allocation of scarce natural resources are structured and moulded to suit carefully planned and organised corporate interests, the book further illustrates.

Justice Khehar, who was initially not inclined to dismiss the petition, wondered in open court whether anybody could mention a name in the computer as a recipient of bribe and accord it evidentiary value. The question needed to be resolved, not as a general principle of law, but with regard to facts of a particular case. In this case, there were strong misgivings about the entries on the spreadsheets, but the Court could have ordered a probe into them before dismissing them to satisfy its conscience.

On August 9, 2016, the former chief minister of Arunachal Pradesh, Kalikho Pul, who was removed from his position through an order of the Supreme Court, committed suicide and left a 60-page note, signed on every page. The note alleged bribe-taking by several people, including two judges of the Constitution bench which heard the challenges to the imposition of President’s Rule in Arunachal Pradesh. The two judges were Justices Khehar and Misra.

Despite the then governor of Arunachal Pradesh recommending a CBI probe into the allegations, the centre remained un­moved.

Pul’s suicide note was made the subject matter of a letter written by his widow, Dangwimsai Pul, to Justice Khehar, seeking his permission to register an FIR against himself and Justice Misra on the understanding that they would recuse themselves from dealing with the matter either in judicial or administrative capacities so that their seniormost colleagues could hear them. But Justice Khehar’s move to administratively assign the case to a judge of his choice disappointed Dangwimsai Pul, who withdrew her petition.

The Constitution bench decided the Arunachal Pradesh case in favour of the petitioner, the ousted speaker of the assembly and the ousted Congress chief minister as the Congress lost power due to defections, and imposition of President’s Rule. The outcome of the case went against Pul as he was a beneficiary of President’s Rule, and its subsequent revocation, paving the way for his assumption of office as chief minister.

Pul was indeed aggrieved that the Court’s decision was against his continuance in office. But that does not ipso facto prove that his allegations could have been motivated. They required a probe if only because in law, Pul’s note is recognised as a “dying declaration” and therefore, considered to be prima facie true, pending corroboration. If found true, the allegations could have made the accused guilty of abetment of suicide, besides bribery.

The authors sent their questionnaires to the chairman of ABG, Kumar Mangalam Birla, and chairperson of the Sahara India Pariwar, Subrata Roy, in connection with the Birla-Sahara papers.

They also sent questionnaires to Justices Misra and Khehar; former President Pranab Mukherjee; Kapil Sibal; Chief Minister of Puducherry V Narayanasamy and Kamal Nath, whose names were mentioned in Pul’s note.

The authors confess that they did not receive any response from anyone till the draft of the book went to press, and assure readers that if they do receive any later, they will be included in the book’s future editions. It is obvious that their fond hope will remain just that.

The book expresses doubts about an ominous link between the two episodes, the subject matter of the book. That the book has been self-published by the author is a statement in itself on the times we live in today.