Introduction: radha rajan
Shri Habibullah Badsha,Senior Advocate,Madras High Court.
Shri Arun Shourie, Noted Columnist.
Question and Answer Session.
INTRODUCTION: RADHA RAJAN
We are sure many of you must have noticed that in the last few days, much space has been apportioned in the english dailies, to the subject of judicial activism. Newspaper reports, editorials,center-page articles, and letters to the editor. Some of the most strongly worded reactions to judicial activism has come, not surprisingly, from our politicians and members of the parliament. For it is the corrupt politician who is today hounded by the Nemesis of the law of this land. And this is very good. It is very good for a functioning and vibrant democracy that a climate is now being created whereby it is made possible for us to debate sensitive issues not only institutionally but publicly. It is also good that politicians are finally beginning to realise that they are accountable. That they are accountable to the people and to the law. And it is also very good that the Judiciary is the second institution, after the Election Commission, which in the last two years, is waking up to its sense of duty. The duty it owes to democracy and the duty it owes to the people.
This only goes to prove that this country does not lack for effective institutions. What it does lack is national will and a sense of quality - the quality of people who are manning these institutions. The quality of people who are members of parliament, the quality of people in the judiciary and the quality of people in public life. And it is a sad state of affairs that we are not resisting and are actually accepting the twin cancers of corruption and incompetence in public life. Look at the kind of people who go into these institutions. Let us just take our parliament, which is the most visible of all our democratic institutions. Bandits, militants and dacoits, they wear a halo because they are surrendered militants or dacoits, rapists, thugs, goondas, people who have muscle power, and people who have money power.These are the people who are brazenly entering the portals of parliament today.
People in public life emerge on the public scene either as a result of the assembly line of which thay are a part or they surface to the top. Whatever the mechanism which throws them up, the quality of the people who enter these institutions at the beginning, is very important. The lesser of the two evils and just as dangerous, is incompetence. Historical handicaps which need not be obstacles to entering public life have however been made the rationale for entering public life. She is a woman, he is a dalit, they are illiterate, so vote for them. Whatever has been historical or other handicaps, has become the rationale for electing people to the parliament, and worse, has become the justification for why we should accept incompetence in public life.
Judicial activism has become pronounced today because the executive has failed in its service of the people it claims to represent. It has failed because of corruption and it has failed because of incompetence. So judicial activism is good. Because there are members in the Bar, and there are members in the Judiciary for whom the word and the spirit of law is important and who are striving to prevent democracy in this country from becoming a farce. And let us look at how our politicians are reacting to judicial activism today. Some members of parliament want a special session to debate judicial activism. Not a single member has demanded so far a special session to discuss parameters of probity and competence of those wishing to contest elections to the central parliament. And incompetence and corruption is staring them in the face. They do not want to discuss how to initiate or activate internal mechanisms whereby those people who, even if they have been elected by the people, fail the test of honesty and probity, should not only be removed from the parliament but should also never be allowed to contest elections again. They do not want to discuss this. But thay want a special session to discuss judicial activisim because the Judiciary is treading on their toes. And now the present government is contemplating a Bill to curb judicial activism, a measure with far-reaching consequences and patently anti-people.
But the judiciary has not been spared the afflictions of corruption and incompetence either. The judiciary may deter criticism directed against it by covering itself with the fig-leaf of contempt of court. But what about contempt of the people, contempt of justice? Good people will tell us in a one to one conversation, and members of the Bar themselves on condition of annonimity will swear that there are judges who can be bribed or manipulated into delivering a certain judgement. We also know that there are judges whose judgements are coloured by their class bias, caste bias and religious bias. There are also judgements coloured by political bias. There is no doubt that judicial activism as we see it today, is a drastic measure which is reactive to the chronic illness afflicting our parliamentary democracy. But if the judiciary has to be credible, it has to clean up its own act. The judiciary will have to evolve internal mechanisms to deter the entry of undesirable members into the judiciary so that the faith of the ordinary people of this land in the sanctity of the judicial mechanism to render justice free from bias, is respected and protected.
SHRI HABIBULLAH BADSHA, SENIOR ADVOCATE, MADRAS HIGH COURT.
This is the first time I am attending a meeting organized by 'Vigil' and it is a very important meeting because we are going to discuss a very important issue. Those of you who have looked deep into an abyss will know what I mean when I say that when you look into an abyss, it is as though the abyss is looking right back at you, overwhelming you and holding you in a spell of helplessness. The state of law in this country and the country itself is today such an abyss and even the intelligent among us is petrified with bewilderment. The Law too is such an abyss. When you look into the body of law, its abundance, its complexities and long drawn procedures prescribed by it, well it is like looking into an abyss. It also makes law very unattractive, not to say unpleasant.
But before we talk about judicial activism, we must take a look at the legal system itself. At the outset I would like to state categorically that Law fails itself when a legal system puts justice beyond the reach of the poor, and for some reason denies justice to a wronged citizen of this country. The law also fails itself when laggard legal procedures keep people in jail for years without trial and when loopholes allow the guilty to go scotfree. The law has failed itself when legal principles have abetted custodial rapes and other crimes until some judges have taken charge of the cases themselves. The list enumerating the instances of law failing its raison d'etre can go on and on. Custodial rapes, the Bhagalpur Blindings, and now the Gujarat Blindings, cases of bonded labour and many more. The complexities of the law are today so severe that one is not sure what the law is anymore; or for that matter what will be the fate of cases coming to the courts.
No judgement is sacrosanct. Not even one that has been delivered by the Supreme Court. A judgement delivered by the Supreme Court today can be changed tomorrow and modified the day after. It can finally be referred to a larger bench of seven or nine judges. Sometimes a judgement stands for two, three or four years; after which it is referred to a larger bench. Judgements are challenged only because the cases have either not been argued or presented competently and honestly or else, with due respect, the judges have not applied their minds to the case. And the operative part of the judgement therefore requires reconsideration. It is the legal system itself which breeds the ills and evils bedevilling the law today.
We also have a plethora of laws. I have never been able to understand why we need so many complex laws which is beyond the comprehension of the common man. England has a simple common law. American law is simple too. But here, not only do we have the central enactments, we also have the state enactments. And then we have notifications being issued day after day. We issue notifications if we have to help people and we issue notifications when we have to punish people. Sometimes these notifications are issued and withdrawn within a week and nobody is the wiser for it. So it is this plethora of laws that we have to question and resist the procedures that make law so complex even for an advocate.
Let us take the Foreign Exchange Regulation Act for example. A fairly simple enactment which consists of sixty or sixty-five sections. But the circulars issued by the Reserve Bank are mind boggling even for a person like me who deals with foreign exchange regulations. Circulars are issued which change or modify previous norms but notifications informing the general public about the changes, are rarely issued. I will give you all an example. Not so long ago, foreign citizens coming into India and NRIs could bring along with them 10,000 dollors and they could take out of this country, 10,000 dollors. Then the Reserve Bank changed the law so that these people could bring in or take out only 2500 dollors. There was no notification to this effect and even I did not know about it until I was called to represent a Singapore national who was taking 8500 dollors from out of this country. He did not knowingly violate the law. He just didn't know that it had been amended just as I didn't know about it and I live in this country and deal with foreign exchange regulations.
So, the bane of the legal system is these ad hoc amendments which are turned out at the drop of a hat as and when situations arise. Our courts themselves advise people to settle some kinds of disputes outside the courts because the long drawn out procedures even in simple cases can become fruitless after sometime, justice may well be delayed, and thus the law would fail itself once again. Even the Constitution of India has not been spared our penchant for amendments. Our Constitution has sufferred several amendments, the most infamous being the 42nd Amendment, which thankfully is no longer a part of our statute.
What is judicial activism? The term defies a simplistic description. The same problem requires different parameters for solution or justice in different times, in different places and in different contexts. Judicial activism in the U.S.A has expressed itself through a provision in their law known as 'due process'. Following the Civil Rights Act of 1964, the Federal Government of the U.S.A also introduced for the first time the concept of Affirmative Action which sought to end discrimination on racial grounds in education and employment. As the U.S government and other sundry peoples' groups became more and more committed to protecting civil rights, and as affirmative action began to extend its reach and scope, the Supreme Court of the U.S.A had to intervene on an unprecedented scale to interpret the scope and jurisdiction of the two concepts and also to safeguard the rights guaranteed under a Presidential Proclamation. A landmark judgement in the Civil Rights issue was the Miranda vs Arizona case where the Spring Court declared that : In a criminal case, the prosecution may not use as evidence, a statement made by the accused if the accused had not been warned of his rights that he can have his attorney present at the time of interrogation and also that anything he may say will be used as evidence against him. Justice Thurgood Marshall of the Supreme Court of the United States, was then an eminent lawyer who tirelessly strived to define and extend the scope of civil liberties and civil rights. Two landmark judgements on the issue of discrimination on racial grounds in education was the Brown vs Board of Education which was to protect the rights of an African-American and the Regents of the University of California vs Bakke which was a significant judgement against 'reverse discrimination'. I am drawing this audience's attention to the fact that the Courts in the U.S.A have rarely fought shy of taking on sensitive issues with courage and forthrightness. Thurgood Marshall's contribution to the Civil Rights cause was rewarded when the U.S government elevated him to the post of Justice in the Supreme Court.
A few minutes ago my friend was commenting on corruption in high places including the Judiciary. And for all that she called me a brave man, I would still not like to comment upon corruption in the Judiciary because I do not want the courts to haul me up for Contempt of Court. However, I would like to mention that in the United States, a person in public life who is nominated to or occupies high positions, is expected to have lived a blemishless life. Aspiring candidates are subjected to rigorous and exacting demands which test his or her probity. Justice Clarence Thomas of the Supreme Court of the United States, was appointed Attorney General. Soon after the announcement, a lady went to the press and asked for withdrawal of Clarence Thomas' appointment, citing sexual harassment as cause. The issue attracted a lot of negative publicity for Clarence Thomas who was an African-American. Investigations began, the appointment was postponed, but in the end the accusations against Justice Clarence Thomas were found to be false and baseless and therafter Justice Clarence Thomas assumed office in his new capacity.
Clarence Thomas had to undergo a gruelling inquisition before his appointment was confirmed. But here, there is no accountability in the appointment of Judges as was correctly stated by my friend. I am not against the appointment of Judges on the basis of caste or religion or any particular group. But we should appoint the best persons in that group. Quality.
DR. ARUN SHOURIE
JUDICIAL ACTIVISM – HOW FAR CAN IT GO
Mr. President, Mr. Badsha, it has been a veritable treat listening to you and I am sure I speak for all of us gathered here, that your talk has been an education for us and I will therefore only elaborate on the points that Mr. Badsha has educated us about and also add one or two foot-notes to this. There are two very important lessons in this for us as you were saying and I would merely elaborate on those two. First as was clear from his presentation we must approach the whole topic with an eye of discernment, of differentiation. Because as we were listening to him raise all these questions, I realised that in India, even before we understand the issue in depth our attitudes are formed with “are you for or are you against”? In this case, it would be are you for or against judicial activism? But as he has shown us, on some issues this activism is going well and on others it is not going so well and it is our duty to do our homework before we pronounce our judgement on a particular issue. That on terrorists they may have gone overboard and on the hospital issue it seems as though there is a major scandal to the tune of 5000 crores. It may all actually boil down to not this judgement or that but to the timidity of some Revenue Secretary or somebody else. So we must first do our homework to gather all information and this is the first lesson. The second is that we should not get swept merely away by the debate on current cases, which are on corruption. As he has pointed out, from protecting the basic structure of the Constitution to various social issues, there is a long tradition of the Indian judiciary of being active on behalf of the country, being active on behalf of the people. From this very fact, I think two or three other things follow.
And that is, as he has also mentioned, this current assault, this verbal assault on the judiciary by the politicians, we should not lend our weight to it even as we may differ from individual judgements to individual judgements about what orders the courts are passing. We must be extremely careful not to say things, or write things or take up postures, which will aid these corrupt politicians to run down what the judiciary is doing now as a whole. Except the example that occurred to me when Radha rang me up on this issue.
You will see that those fellows who are now talking about activist judges and that we should have a national debate now, as Mr. Badsha reminded us, Mohan Kumaramangalam’s great aggressiveness from here and Mrs. Gandhi’s convenience from there, they have always advocated the doctrine of a ‘committed judiciary’. They were packing the courts with activist judges – judges acting on their behalf. Mrs. Gandhi did not complain when a very active judge, Sir, who as you said always stood up for individual rights, after the emergency, suggested in open court, as a part of his order, that “I cannot state fully the judgement of Justice Sinha, because I am bound by the law as it is today. But of course, if an alert legislature changes the law and comes back before this court again, then we can do it as per the new law”. Justice Krishna Iyer said this, and this is exactly what they did. Mrs. Gandhi you may all remember, had been convicted on four grounds of corrupt practices. She took Justice Krishna Iyer’s advice literally word for word and the law said - the new law passed without debate by Parliament and ratified overnight by 23 state legislatures, this new law said that these four practices shall not be deemed to be corrupt practices ever. And shall not be deemed to be corrupt practices now.
And that kind of very active judiciary they wanted on their behalf. Another point that came through very well today was that not only should we differentiate between executive orders issued under the cover of the judiciary, or in fear of the judiciary, and what the judiciary is doing, not only must we differentiate between judgements – this judgement vs that judgement, but also Sir, if I may make this point, we must also differentiate between the layers of the judiciary. For instance you mentioned the role of the Supreme Court in the ADM Jabalpur case. The Supreme Court was being the instrument and the toady of the government. But at the same time, nine High Courts had stood up to those orders and had struck them down. So again it may be that one judge or one member in the judiciary may become over enthusiastic. Even then do not give your weight to the politicians to say ‘all judiciary is doing this’. Focus on that one judge alone who has been guilty of this.
A third note of caution, if I may just add to what Mr. Badsha has been telling us. Our view of these topics gets unduly affected by the outcome of an individual case. For instance, a person like me who has not examined this matter but I know that Gurumurthy, Arun Jaitley and Ram Jethmalani have studied Mr.Advani’s case very closely. Now it may be that in that case, and all three of them are convinced about this, there is not a shred of evidence against Mr.Advani (Reference to the Hawala Scandal). But if a magistrate gives an order against Advani, our view on judicial activism suddenly changes. When we allow our sentiments on a specific case to influence our view on a topic, then as Mr. Badsha said, we are no better than those politicians who are today demanding a special session of Parliament to discuss judicial activism. These politicians wanted judicial activism when Advani was made the victim but now when the fires are beginning to scorch their heels, they are crying hoarse against judicial activism. So please be wary of being influenced by a particular judgement of a particular case. We must discipline ourselves to deal with that particular case alone. Mr. Badsha had illustrated this point with two or three examples. I have myself known cases similar to the Tamil Nadu tanneries case in the Punjab.
We are from Punjab, I know that state and when I was studying terrorism in the Punjab, I know that 21,000 people were killed there. And at that time, Section 197 was amended; that no prosecution shall lie against the defense forces, the para-military forces or the state police without the express permission of the government. If the state was under President’s rule then the central government had to permit prosecution of these officers. This was not done to protect anybody or everybody. This was done because of the extraordinary circumstances prevailing there in the Punjab. We had a war on us by Pakistan. In the USA, six persons were killed Sir, in the attack on the World Trade Center and the country changed the basic structure of their law which had lasted for over two hundred years. For example, the laws on privacy were set aside, by the executive order of Clinton. In our case 21,000 persons were killed. You just find out the number of police officials, constables who have been killed in Northern Ireland. Really, it will be only in the dozens. So great a crime is it regarded that my pushing a constable in Britain is like assaulting the Queen. In the Punjab, over 2000 policemen have been killed including those in the rank of DIG and no human rights activist spoke up for them. That was the condition prevailing in the Punjab then. The Punjab police suffered a tremendous loss during that period. During the Akali period the force was backed by people who then became available to the secessionists. It was as though the Punjab police force had almost evaporated. At that time the war on behalf of India was begun by individuals. Just by individual officers. Young officers in their twenties and thirties, and after the war by these devoted individual officers began to yield some results, then officers like Robeiro and K.P.S.Gill slowly re-built the force. And now the Supreme Court itself Sir, and you will be surprised to know, that because of the prevailing activist temperament has ordered the prosecution of the police and fifty of those police officers are today in jail.
And about 1500 writ petitions against them and investigations are being conducted now. The whole force is completely de-moralised. I think what is happening now is completely wrong. It is contradictory to the law as it stands. There is no judgement of the Supreme Court till today which says that the amendment to Section 197 is ultra vires. I have talked to the judge concerned. You will be surprised Sir, you mentioned din the course of your talk about anybody’s statement being enough to keep me in detention, that anybody’s statement is also enough to set a criminal free. This happened in 1986. Here was this man in Patiala doing ten years in jail for narcotics smuggling,. He is convicted, he is serving a sentence, he writes a letter to the father of a person who has been killed in an encounter, “ Oh, I read in the papers that Kulwant Singh was killed on Monday in an encounter. But I know he was brought to the jail on Saturday”. Look at the credibility of the man! That is taken as truth, proceedings are launched against the police officer on the say-so of this narcotics smuggler, and to add insult to injury, the judge wants to see the conviction papers of this smuggler. This man has today been set free and has also been given state police protection!! For the activist judge, the word of a smuggler counts but not the word of a police officer.
Each of us in his own experience must know of at least one or two such perversions of judicial activism. But in furtherance of what Mr.Badsha was saying, I must plead, don’t let our personal experiences affect our view of the topic. Please look at the case itself. Scrutinize every judgement and confine the critique to that particular judgement. And not to this sudden notion that judicial activism is bad in principle. Because after all what is it the courts are asking us to do. They are only asking us to enforce the law. There is the Prevention of Corruption Act of 1947, which is not being enforced. Do it. Investigations into the Hawala scandal has not taken place in five years, do it. When they reprimand the Director of the CBI, and he is behaving in a shameful way, the courts at great risks to themselves are trying to become the protective wall against the politicians who will use the CBI. They are giving the Director an opportunity to say that he cannot do these unlawful things because this Justice Verma will kill him. So Verma is actually assisting you to stand up and do your job. But he goes ahead and does the exact opposite. See what the Indian Express has correctly reported on its front page today. I don’t know how many of you are aware of ‘gawala’ in Bihar. Livestock, cows are flown from America to India because they are high-yielding cows, special arrangements are made to transport them from Delhi to Patna. People are paid compensation for transferring to them their vehicle number – you know, twenty cows, Jersey cows transported, on such and such day. The vehicle turns out to be a two-wheeler belonging to the son of a junior official in the state Animal Husbandry ministry. And because they are special cows more money is needed for special feed for them. All on paper only. No cows have come so far. On paper they catch diseases, on paper they are given medicine, on paper they recover and reports are filed in the Assembly to say that now Bihar is on the threshold of a breakthrough. Why? Because we have these high-yielding milch cows. Then suddenly they all get plague and suddenly they all die. Sir, a flock of chicken in four years consumes chicken feed worth twenty crores! Two thousand crores are siphoned off in this manner.
And when the cases come up for hearing and the investigations are not done, Laloo Yadav suddenly takes recourse to law. He has several eminent lawyers to assist him and he takes the legal position that no investigations can be done only by the CID. And the CBI cannot conduct the investigations. Why? Because under the Delhi Police Establishment’s Act, CBI cannot come into Bihar until the state government gives them permission to come. When the court says, no, the CBI can go to Bihar, in fact, the CBI alone shall be entrusted with the investigations, see what happens. The CBI officer, a person by the name of Biswas from Calcutta who was handling these investigations, is first transferred out of Bihar by Mr. Deve Gowda. Under his directions, the CBI Director transfers Mr. Biswas. The High Court says, no you cannot transfer him. Let him report to us about the progress of the investigations. And you see what has transpired yesterday in the Patna High Court! The CBI Director has filed a report before the Chief Justice of the Patna High Court over the signature of Biswas. Sir, you wanted his report, this is the report, and Biswas is saying, no, this is not my report.
This is the level to which the executive has been reduced in India. When this is the condition of officers in investigating agencies, a state completely different from the state when Mr. Badsha was dealing with them, should we surprised at the spurt in judicial activism. After all, the judges are only saying, do your job. We are assisting you to do your job and helping you to stand up to persons who are trying to use you as their private armies and instruments. Should the officers not follow the example of Mr. Badsha and take a firm stand? And is the judiciary being over-active? Is it really trying to run the country, when it is merely saying, bhai, there is a pollution law, enforce it. When the judge goes out of his way to issue such an order, it is an example inviting you to go back to him again. The first time he may ask you to sit down. But the recoil of consequences makes that judge and that court to revise its order. So we should not be too nervous even of errors. On the other hand we must put it in perspective and see what the judiciary really is doing.
As you rightly said Sir, the constitutional system has empowered the legislature to act to restrain the executive. The Prime Minister will be the first among equals in a cabinet and the cabinet will be responsible to the House and the House will be responsible to the people. But what we see today is the whole system being stood on its head. We have weak Prime Ministers today but until not long ago we have had Prime Ministers who did not care about their cabinets. We have a Chief Minister here who hasn’t cared for her cabinet, and before whom people will grovel. The government was just an extension of the ruling party. If I may so, the legislature was not doing its job. With great affection for my own friends, the press is not doing its job. How is it that the press in Bihar has completely blacked out the ‘gawala’ case? Only one paper pursued it. This was happening in the open, it was there for all to see and take note of. One Animal Husbandry inspector makes a three-storey house in the village, all marble. Everyone has his fancy and this man’s fancy was, his bedroom must be on the third floor, and the car must go up to the third floor! So in this village, there is this three-storey house with a ramp going up so that he can alight from his car into his bed.
Laoo Prasad’s daughters, and his family has made houses, palatial houses, larger than this hall in the heart of Patna. When the court asked, whose houses are these, the answer is, the file is lost, we don’t know whose houses these are. In Bihar, the legislature has been silent, and more surprising, the press has been silent. In the heart of Patna and the press doesn’t know whose houses they are? Here, I don’t know the truths about what Jayalalitha was doing or her associates were doing but my question is, how come these stories never surfaced in the press until she got out, or was thrown out. So our attention should be on the fact that we are not doing our job and so it becomes all the more important, it becomes inevitable, and this is the virtue of democracy that another institution takes up the responsibility and does its job for the country. That is what these few judges are doing at the moment. And the answer to the critique of these politicians lies in the facts that are now coming out. Radha asked is there no corruption in the judiciary? But supposing there is? How does that refute the facts in the Hawala, the gawala or St. Kitts or anything? Similarly, are there not corrupt journalists? Does it mean that we should pay no attention to the facts that the press may from time to time uncover?
So do not get derailed by all this. You are right. The judiciary should set its house in order. Mr. Badsha is completely right when he critiqued the legal system as a whole from the number of laws t6o the complexities, to the procedures in the courts, must all be attended to. But that is no reason why we should deny or refuse to acknowledge the good work that is being done at the moment. Sir, as you rightly said, laws are complex, procedures are dilatory, but probably judges have made the least contribution to that state of affairs. Lawyers have made and their clients have made a much greater contribution in this regard. We want these complexities when we do wrong. When I cheat a person, I want a delay. And if I may say so, you as a lawyer, helped me to get it. The press and we, both, we swallow and vomit what the CBI tells us. Suddenly everybody is guilty. Mr. Badsha cited the ISRO spying case, we have so many other examples. It is a surprising thing that today, officers in Bihar who were astute enough to conjure up cows, and chickens and other livestock for ten years and siphon off 2000 crores, are today caught, according to the press which is covering the investigations, with incriminating documents in their houses. And please note these investigations and raids are being carried out since February and these officers who masterminded this heist are ‘caught’ with incriminating documents in spite of knowing that the CBI may knock on their doors anytime.
I know that as far as Mr. Advani is concerned, the CBI planted a number of stories. They said his son has a business, Mr. Advani has acquired several flats, he has a plot in Noida and so on. The press was then acting as the megaphone of the CBI. There was no plot in Noida, it had been bought in the 1950s and had been sold away, he has one flat after thirty-five years in public life. And his son had no big business, some two lakhs as investment in a factory manufacturing cardboard boxes for shoes. This was his so-called factory. And the press was instrumental in all this calumny, in the case of this good scientist from ISRO and in Mr.Advani’s case. I know Sir, now everyone is saying that Narasimha Rao is guilty in the St.Kitts case but it is the press on behalf of Rajiv Gandhi and his cohorts who had put out these forgeries. And when persons like me nailed these forgeries by showing the inconsistencies in what they were doing, we were condemned as these judges are being condemned today. So I would suggest that when we see something wrong being done, not only must we focus on it, we really must see our own contribution in it. In making laws complex and helping the guilty to evade arrest or even getting away, the contribution of lawyers, in ensuring delays, Sir, you must see the sweeping dictates of the judiciary in the context of what the legal profession has been doing all these years. You have created a climate of opinion in which people presume that through these laws and lawyers the guilty get away. The feeling is, put all of them behind bars. So today, it lies with us to find fault only with judges. We must look at the contribution that members of all professions have made for the general falling in standards of public life and private life.
I will make two more submissions and then end. The first is, in all this anxiety and interest about individual cases, we should really focus and help crystallize on the new principles that are being enunciated. For instance, there is this law today which says that the CBI cannot go into a state for investigating a case, without the permission of the state government. We know that state governments can misuse this law. the Patna High Court has bypassed that law and directed the CBI to go to Bihar to investigate the cases in the ‘gawala’ scam. It is because the Patna Court has set aside this law that so many startling facts have come to light, which otherwise may never have been possible. The Supreme Court has upheld the ruling of the Patna High Court but it is a departure from the law as it stands today. These are good innovations and because the court appointed Anil Diwan as the Amicus Curiae, or the ‘friend of the court’, several facts with regard to Hawala and Chandraswamy have also come to light. This in effect means, the court is telling the amicus curiae, you consolidate the cases. You be our lawyer, and advisor. It is another good innovation but we have not been using it enough. Another thing is on the anvil. In the case of the hawala, the courts said, report to us on the progress of the investigations. Then in the case of the ‘gawala’ scam, the Supreme Court said the Patna High Court should monitor the investigations. This is a more active role than merely receiving reports. Now the High Court has insisted that the investigations will be carried out only by a particular officer. Because the whole attempt is to derail the investigations by transferring that one honest investigating officer in the CBI. In the JMM bribery case, the CBI, for obvious reasons because the fires of nemesis is scorching the heels of the primary beneficiary of the bribes paid to the members of Parliament, that is Mr.Narasimha Rao, the CBI is not pursuing the case in any hurry. So the High Court has said tin its last hearing, hat we may have to appoint an investigating team of our own. So that will be a further departure. There can be difficulties with this later on. But these innovations have been caused by the circumstances prevailing now. We can help by scrutinizing these innovations and also help to articulate them and crystallize them. So that, when we think a particular innovation is a step in the right direction, we should help to build up public pressure, which will lead Parliament to alter the law, so that the new changes which circumstances are compelling the judiciary to make, are institutionalised as law.
So Sir, I don’t see the dangers for the future in judicial activism, I see the dangers coming from another side – and that is, the political class as a whole is affected by it. They see that they have now no legitimacy. Even the honest politician is a victim of this infamy. They are vulnerable today and that is why they are attacking this important pillar of democracy and I believe, and I fear that they will go much farther in doing this than at present. At present politicians are at loggerheads with each other. Deve Gowda wants Narasimha Rao to be fixed, but he won’t do it. He will keep touching his feet and tell him, Sir, what can I do? It is the courts which are doing this. Why is it that Deve Gowda will not touch Laloo Yadav? More than half of the Janata Dal (S) MPs are from Bihar. Twenty-two of them, and all controlled by Laloo Yadav. In the end they will all get together because they all have something big at stake – political power.
I fear three types of assault which people should be alert about. The first is, please remember, that judicial activism is the work of only a few judges. Just as the facts that came out in the seventies and eighties in the press was the work of only a few journalists, not the press as a whole, and thus not the judiciary as a whole. The conspicuous judgements which have caught peoples’ attention today is the work of just two judges – Justice Verma and Justice Kuldip Singh. Kuldip Singh retires next month, and Justice Verma retires in eight months. These judges have been forced to become activists because of the mistakes of those in power. Just as they created Seshan. They did not want him as the Cabinet Secretary, they wanted to put him in a ‘gowshala’, a cowshed. So he started doing good work there.
Now the difficulty for politicians is that they are being taught a lesson. Now they say, don’t put such people in these positions. So we need to change the method of appointment of judges, you mentioned this scrutiny Sir, in the USA, in the case of Justice Clarence Thomas. In the Constituent Assembly, as you remember Sir, there were several different proposals. The special committee constituted for drafting the clauses of the Supreme Court, had come not to the inquisitorial procedure of selection of judges as in the USA, but they had said there may be two alternate procedures – either the President recommends three names or the Prime Minister or the government recommends three names and the council chooses one. President recommends three names or the Prime Minister or the government recommends three names and the council chooses one.
So the RaJya Sabha and one person nominated by the Press Council determine who should be the next Chairman. But for the Chief Justice, there is no consultation; He becomes the preacher of the Prime Minister of the moment. So sometimes we get good Chief Justices, like Mr.Venkatachelliah; sometimes we do not get good Chief Justices, and they then make other appointments to the High Courts in collusion with or in collision with the Government. So we have to institutionalise the mistakes, and that can be done by changing the method of appointment,
The second thing that I fear is that they will launch a great assault on judicial activism by creating a wastepaper basket into which all these cases will be thrust, Let me tell you, that waste paper basket has already been introduced, and it is the misfortune of our Press that not one person has focussed on it - the Lok Pal Bill, you will be shocked when you read the provisions of the LoK Pal, They say, the very clauses which are being proclaimed as being strengths of the Bill, will be used to defeat these cases.
What does the Lok Pal Bill say? It says anybody by writing a mere postcard to the LoK Pal can ask for it to examine such and such facts, conduct such and enquiry. The Lok Pal then has the authority to halt all investigations into that matter, being undertaken by the CBI or the police. Nothing further on that case can be done because it now comes under the jurisdiction of the Lok Pal.
The third point I wanted to make was that, one of the clauses in the Lok Pal Bill declares dramatically, The Official Secrets Act, notions of Executive Privilege, nothing shall come in the way of the Lok Pal conducting an enquiry. The Government will have to turn over all documents to the Lok Pal. It all sounds very good but the effect is the complete opposite because of the small print there. The small print says, every investigation has to be halted. We will take the case on board. I halt all investigations and I then write to the Government! "You please send me the papers." That clause states, government must turn over all papers provided that nothing in this clause shall be construed to mean that the Government shall turn over documents if they affect the defense of the country or international relations including relations with another Government or the investigation or detection of a crime. Now see what happens.
Sukhram is in the dock in the telecom scandal. I write as Sukhram's peon, a letter to the Lok Pal - "Please take over the cases relating to this Telecom tender." The Lok Pal has the authority to halt all investigations and takes over the case including the investigations. Then the LoK Pal writes to the Government asking it to turn over to the Lok Pal all concerned files. The government refuses to do so because under the Act, it cannot turn over files that relate to the investigation or detection of a crime.
Then Sukhram's peon goes to Mr. Badsha. Mr. Badsha gives Constitutional arguments and writes up to the Supreme Court asking whether the government’s refusal to turn over the files to the Lok Pal is valid or not. Meantime, while we are all discussing the legal niceties and splitting hairs, and herein lies my major objection to the Lok Pal, Sukhram is free on bail.
After the Lok Pal finishes the enquiry, what happens? The Lok Pal must submit its findings to the Government asking the Government to take note of these findings and file its report within 90 days. The government says - no; no, no filing - it will file back an "Action Taken" report to the Lok Pal. So, you know what happened to the "Action Taken" reports last time. This is all the consequence that follows. The worst is Section 15 which isays, once the Lok Pal is seized of a matter, nobody. in the Press or anywhere in the country, or over a public platform can talk about the matter at all. You cannot even write that an investigation has been taken up by the LoK Pal into an allegation against Mr. Sukhram. If you mention that, then one year's imprisonment and a ten thousand rupee fine. Speaking or writing about only the fact mind you that the case is now under the jurisdiction of the Lok Pal, not even editorials or debates whether Sukhram is guilty or not, that fact cannot be spoken or written about in public discourse. And that ban shall apply not only during the duration when the Lok Pal is investigating the case, but for three months after the Lok Pal has submitted the report to the government. You cannot even mention in the Press that the report has been submitted. Of course, you are not going to be told what the report is.
But after all this is over what will happen? The Action Taken Report of the government will say yes, the Lok Pal has come to the conclusion there have been serious irregularities, we are therefore now beginning a CBI investigation into the case. Back to square one. This is the reason why all political parties are cheering for the LoK Pal Bill. This is what will be done in the so-called Special Session of Parliament to discuss judicial activism; it will create the Parliament approved dustbin into which all these corruption cases will be consigned.
So great conspiracies are afoot by the political class as a whole to protect itself. And we should not become instruments to that. So please, before jumping to hasty conclusions about judicial activism, investigate, scrutinise individual judgments as Mr. Badsha did; not to reject activism as a whole. Consider please, and remember that people have been - the Judiciary has been forced to adopt the activist path only because of the dereliction of duty by the other institutions of State and Democracy. Also remember the facts which have been exposed only because of this work of the activist judiciary.
And lastly, please remember that great dangers are afoot, great conspiracies are afoot to neutralise all this work. This will be done by high-sounding phrases like Judicial Activism. It will be done by highlighting individual errors of the Judiciary; it will be done, most of all, by these institutional devices to create wastepaper baskets. And organizations like Vigil and all of us should be alert to these and nail these attempts when they happen.
Thank you very, very much.
QUESTIONS AND ANSWERS – INTERACTIVE SESSION
In prisons we have A Class and B Class facilities depending on the status of the individual who has been imprisoned. And we see when a VIP is arrested or detained, the very next day his lawyer approaches the courts and asks for A Class and the Judiciary gives him A Class. When the offence is the same and we have a working Constitution why do you differentiate between the offenders. One person goes to prison with 'A* Class facilities; he gets a fan, a TV and other things. In a functioning democracy it is a shame to have such discrimination. When the offence is the same, everyone should face the same consequences and there should not be any discrimination in the prison.
As I understand the question, you are objecting to the fact that there are two classes in jail, for 'A' and 'B Class prisoners; We should actually have one because the offence is one. Well, since I have often contemplated the time when I may he in jail, I am all for A Class facilities. I would want at least that books be made available to me. But you are right in principle that because it is the same offence there should be no differentiation between the persons who have committed the same offence. I would even go further and that is, that in the sentencing, the punishments should be progressively harsher for the same crime, for people the higher the office they occupy. It is a good principle because it makes an exemplar of an offender in high office.
But you know, coming to the question of inhuman conditions in jail. Many of these persons are persons of responsibility and we should not have what one of the news reports in the Indian Express today calls a lynch mentality. Till yesterday, we were bowing and scraping before them; now some woman is in jail and we suddenly want her to be consigned with murderers. It's not becoming of us as citizens, and there is an important point here too. I really feel that the Judiciary will swiftly have to take a view on this matter - that arrests have become a substitution for conviction. You hold the trial quickly. What is this business of this vicarious satisfaction that I have put a big man in jail or a big lady in jail? Or have summary trials. We should demand special procedures we should say no adjournments. I think you can even say we should relax the laws of evidence in regard to these Public servants. But you put a person in jail and then you forget about him in a sense. And we think that enough revenge has been taken. Actually revenge has not been taken because the very effort will get a bad name. So I am not at the moment for - let's say, Mr. Narasimha Rao - I just think it will be quite wrong for us to says "Yes, he should be put in jail right now or that he should be treated as any other scum." That's not correct. And the citizenry which starts getting this bloodlust, will have the bloodlust recoil on it. But I am with you when you say: "Let Narasimha Rao’s trial begin tomorrow"! This is precisely the stand that Mr. Advani is taking. Trial now, day-to-day trial, finish it in two months. If he has done wrong convict him and sentence him to more, ten times more than you would an ordinary citizen, because he would have betrayed the trust of a country. But not this small revenge.
What about allowing or disallowing public processions - with or without the permission of the judiciary?
The question is "What about Public processions, with the Judiciary allowing or not allowing them?"
I think, Sir, there are two important principles. I know there is a big case involving two important principles today. And both these cases are in Tamil Nadu.
You know processions have actually become a device for a certain power. It is a necessary device because if one community or one section of the people is aggressive, the other will find and should find a way to put the other fellow in place. For instance, Maha Arthies on public roads are not a part of the rituals of the Hindu religion; but because the Muslim leadership of Bombay insisted that Namaz shall be held on public roads and roads will have to be blocked, Thackeray was right. He said "Okay I will hold Arthies here." And the Court's orders on offering Namaz on public roads for which all traffic would be stopped, never came. Therefore, the Maha Arthies were held and they stopped the Namaz. I think it is the same thing here. It has to be, and a Judiciary which does not take cognizance of that and puts restrictions only on one side, will actually be feeding the resentment. Similarly, you will bring about the destruction of the Ayodhya mosque because you are not talking the truth. ‘You’ means the Judiciary in this instance. So, while we should respect the fact that all our rights are subject to Public order in the Constitution I don't really have a right - I can't insist I will go there even if there is disorder.
But there is a catch here. The Courts have held, they have rightly and boldly held in a case in Madras – concerning the screening of a film - the Supreme Court was forced to contend with the prospect that there shall be disorder if this film is screened. If we give in to that then we are making the right to freedom of expression subject to every hooligan who says, "If you do this, I will break your head. " So it is the duty of the State”, the Supreme Court has said in regard to Tamil Nadu, “to ensure that the disorder doesn't take place and that it does not curtail with the right to expression”. When you do not do that, when you do not enforce those kinds of fairness, then processions happen because society will then rectify these imbalances on its own. So we should respect the prerogative of the State in its right and duty to protect public order. But the State should protect public order with an even and firm hand. That's where it's lacking. I will now take the last two questions.
Sir, regarding corrupt!on. The entire focus by the Judiciary, the Legislature, the media, is on those persons who take bribe. But they have so far ignored the person who offers the bribe. He is not considered to have committed a crime. Even the Prevention of Corruption Act does not provide for a person who gives bribe. If there is no provision to punish him, can we still deal with the problem?
Sir, actually the law does provide for punishing the bribe giver. But the point is, we should remember that no bribe is received before one of us gives it. But that should certainly not become a reason for not prosecuting the person who has taken the bribe or facilitated the taking of the bribe. This is the argument that the Congress had in regard to Lakhubhai Patel. They are saying he was also a man who was willing to give a bribe in return for the offer of a contract and that he would never have said anything if the contract had been given to him. And the contract was not given to him even after the payment of that hundred thousand dollars. Arre baba, the fact that Lakhubhai Patel was willing to offer the bribe is a separate question. The question here is that the cheat is doing something irregular and somebody by his association with him is enabling that thing to be done. It is a substantial crime. If I'm External Affairs Minister or Prime Minister I must see that by merely being with some persons I lend them legitimacy. This was true of Chandraswamy and Narasimha Rao.
I will illustrate my point with a happy example for how being seen in some company can get things done for you. There is a famous story with regard to J.P.Morgan. Morgan, as you know, was the Lord of Wall Street. And one of his childhood friends comes to him after thirty years. He is in difficulty, He comes to Morgan, and says: “Look here, JP I've come for a selfish purpose; I am in need. I can’t ask you for money. Please just get somebody to give me a loan. I tell you, I promise you I'll pay it back”. Morgan starts talking of something else. “So, it’s one o'clock; let us go out for lunch". So this poor fellow says, okay, we'll go for lunch. So they go walking to a neighbouring restaurant. And after lunch, Morgan and his friend walk back. "So, okay, thank you, we'll meet again”, says Morgan. And the friend says: "But you know that loan? Can you please tell somebody to give me a loan?" To which, Morgan said: "You fool, everybody in Wall Street has seen you lunching with me. You can go and ask for a loan from anybody."
And that is what Chandra Swamy was doing. He was showing himself off in the company of Narasimha Rao and others. But these Congress people say Lakhubhai Patel should also be arrested because he gave the bribe. So you are right. You should have punishments for bribe-givers. Better would be to change the system which requires me to pay a bribe, as Dr. Manmohan Singh did by cutting away controls; as Narasimha Rao did. That is one step. Second is -I'll still be with you - give the fellow his due; put him in jail - the man who gives bribe. But do not fail to make him an approver if you can take advantage of his evidence. You have approvers in conspiracy to murder cases; why not in this case? So under no circumstances, whether you take the assistance of the briber-giver or not, never let the public official get away scot free on that plea.
— Last question Sir.
Sir in the St. Kitts case we find that Mr. Narasimha Rao has been accused of an offence. Now, Mr. Narasimha Rao was the External Affairs Minister at that time. Now he is being accused not only of forgery but also other misdemeanors. It is possible that he committed this crime for his Government. He was not the head of the Government at that time. Now we find that Mr. Narasimha Rao, along with three others has been accused of this crime, but there is not a word about the head of the Government at that time in the whole process. Now can we hope that Judicial Activism will talk about the then head of the Government who also probably had a role in it because, without his approval or without his knowledge, this crime could not have been committed. Don’t you think the person who was the head of the Government at that time should also take the blame in this even though he is no longer alive?
But, certainly. But why do you hesitate, why do you keep on referring to him as the ‘head of the Government’. Rajiv Gandhi was the person and there is no doubt, you are absolutely right. But why leave it to the judiciary alone to fix responsibility on Rajiv Gandhi, although he is dead now? What about the Press? We in the Press should recall all those details. Rajiv Gandhi was the principal beneficiary; I am sure that he was a party to all these conspiracies. The St. Kitts case was one of a series of eight forgeries at that time. I documented all the eight cases of forgeries at that time and these were propagated by the Press.
A letter comes from Herschmann – a forged letter. My friend Gurumurthy is put in prison; his partner Janakiraman is also put in prison. Another letter is released to the Press by Subramaniam Swamy from this so-called Herschmann - another forgery. It was all part of a racket. Then V.P. Singh's letter which Devi Lal released. V.P. Singh as Prime Minister, writes to whom? Writes to the President of India alleging that these two colleagues of mine, Arun Nehru and Arif (Mohammad Khan) are corrupt, please investigate. This letter Devi Lal releases having it notarised in Bangalore from a Notary. Array! How did you get the original of the letter purportedly written by the Prime Minister to the President? And then why should the Prime Minister notarise his own letter before sending it to the President? So I got three young students of ABVP and requested them to go the same lady Notary in Bangalore. And she notarised a ten-page document purportedly ‘signed’ by Devi Lal disowning his son Chotta Lal for buying the Karnataka Vidhan Soudha for five crores of rupees, saying that: "I am obliged under the law, I know that I must read this document before I notarise it. But I hereby certify that I am notarising this without reading it." This lady Notary took two hundred and fifty rupees and notarised that also. The letter which was supposedly written by V.P.Singh to the President was also ‘done’ by the same team. There was a boy called Asharaj, a P.A. to V P. Singh. He used to forge V.P. Singh's signatures. And with confidence I say it now, and I will come to courts with my allegation that none other than Rajiv Gandhi's close associates, R.K. Dhawan and others -they were the team. And you are absolutely right. It's not just Rajiv Gandhi’s name which has not been taken; R.K.Dhawan, Satish Sharma, none of these names which figure in the case diaries, have been taken so far in connection with this case. So, I am with you in hoping that the judiciary will bring out into the open all these names. Even if the judiciary does not bring it out, the Press should bring out these names, especially because the Press played a nefarious role in broadcasting these forgeries.
When that doesn't happen we should intervene in these cases in the Court and says “why are these names not being brought out." And I would, from this forum make a plea to the investigating officers of the time like Mr. N.K. Singh who has written this book called "The Candid Truth - the plain truth”, He was shifted because he was investigating these forgeries, He should tell us everything that they found at that time. Not just what happened to him, but everything.
So, there is a lot of work to be done and the lesson is: the courts in India have given all of us, as citizens, a great opportunity to do the work; to assist them; to join them in bringing to book those guilty of corruption and other major offences, those holding high office. All these cases are the result of public-spirited persons taking up the cases and persevering with them.
Nowhere in the world has the judiciary enlarged the concept of ‘locus standi’ the way our courts have done over the last twenty years. So we have to take the initiative in that, now we have to use the opportunity provided to us by the judiciary. So I would plead - take up one offence; set up one group here with a well known police officer who is known for his integrity; find out the facts; take them to the Court, so that you use the opportunity to bring a guilty public servant to book. Then our efforts would be as friends of the Court rather than as hecklers at anything that is being done.
Thank you all again very very much.