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This expose is by Justice Markandey Katju, who was chief justice of Madras high court before becoming a Supreme Court judge. He is now chairman of the Press Council of India.

There was an additional judge of the Madras high court against whom there were several allegations of corruption. He had been directly appointed as a district judge in Tamil Nadu, and during his career as district judge there were as many as eight adverse entries against him recorded by various portfolio judges of the Madras high court. But one acting chief justice of Madras high court by a single stroke of his pen deleted all those adverse entries, and consequently he became an additional judge of the high court, and he was in that post when I came as chief justice of Madras high court in November 2004.

That judge had the solid support of a very important political leader of Tamil Nadu. I was told that this was because while a district judge he had granted bail to that political leader.

Since I was getting many reports about his corruption, I requested the Chief Justice of India, Justice RC Lahoti, to get a secret IB inquiry made about him. A few weeks thereafter, while I was in Chennai, I received a call from the secretary of the CJI saying that Justice Lahoti wanted to talk to me. The CJI then came on the line and said that what I had complained about had been found true. Evidently the IB had found enough material about the judge’s corruption. Since the two-year term as additional judge of that person was coming to an end, I assumed he would be discontinued as a judge of the high court in view of the IB report. However, what actually happened was that he got another one year’s appointment as an additional judge, though six other additional judges who had been appointed with him were confirmed and made permanent judges of the high court.

I later learned how this happened. The Supreme Court collegium consists of five most senior judges for recommending names for appointment as a Supreme Court judge, and three most senior judges for dealing with high courts.

The three most senior judges in the Supreme Court at that time were the Chief Justice of India, Justice Lahoti, Justice YK Sabharwal, and Justice Ruma Pal. This Supreme Court collegium recommended that in view of the adverse IB report the judge should be discontinued as a high court judge after his two-year term was over, and this recommendation was sent to the central government.

The UPA government was at the Centre at that time. Congress was no doubt the largest party in this alliance, but it did not have a majority in Lok Sabha, and was dependent on the support of its allies. One such ally was the party in Tamil Nadu which was backing this corrupt judge. On coming to know of the recommendation of the three-judge Supreme Court collegium they strongly objected to it. The information I got was that Prime Minister Manmohan Singh was at that time leaving for New York to attend the UN general assembly session. At the Delhi airport, he was told by ministers of the Tamil Nadu party that by the time he returned from New York his government would have fallen as their party would withdraw support to the UPA (for not continuing that additional judge).

On hearing this, Singh panicked, but he was told by a senior Congress minister not to worry, and that he would manage everything. That minister then went to Justice Lahoti and told him there would be a crisis if that additional judge was discontinued. On hearing this, Justice Lahoti sent a letter to the government of India to give another term of one year as additional judge to that corrupt judge, (I wonder whether he consulted his two Supreme Court collegium members ), and it was in these circumstances this corrupt judge was given another one-year term as additional judge (while his six batch mates as additional judges were confirmed as permanent Judges).

The additional judge was later given another term as additional judge by the new CJI Justice Sabharwal, and then confirmed as a permanent judge by the next CJI Justice KG Balakrishnan, but transferred to another high court.

I have related all this to show how the system actually works, whatever it is in theory. In fact, in view of the adverse IB report the judge should not even have been allowed to continue as additional judge.


 

Former chief justice of India J S Verma has termed the Supreme Court’s judgment in the Vodafone tax case as one of its three judgments “which are best forgotten or allowed to pass”.

Verma had first criticised the judgment on Saturday when he spoke at the launch of the book My Experience with the office of Additional Solicitor General of India by former ASG Bishwajit Bhattacharyya. On Thursday, speaking to The Indian Express at his Noida home, the jurist spelt out why he felt the Vodafone judgment delivered on January 20 by a bench headed by then CJI S H Kapadia deserved to be clubbed with the controversial judgments of the apex court in the habeas corpus case during the Emergency — often referred to as the lowest point in the history of Indian judiciary — and the JMM bribery case.

“At the book launch, I said I agreed with the analysis of Bishwajit Bhattacharyya as to why the judgment was incorrect on merits. But, I have some other reasons why I don’t think this judgment to be correct or appropriate in law,” Verma said. “The first reason is that, in my understanding, the three-judge judgment in Vodafone bypasses a five-judge constitution bench judgment in the McDowell matter in 1985. The McDowell judgment in substance said that in this context what you have to see is the substance of the transaction to determine the tax liability and not merely the form of the transaction. But, as far as I understand the Vodafone judgment, the court has said the opposite. They (judges) have gone by the form and not the substance. According to me that is not the correct position,” he said.

The Supreme Court, in its landmark judgment in the McDowell case, had said that behind every tax law there was “as much moral sanction as behind any other welfare legislation” and that “it is neither fair nor desirable to expect the legislature to intervene and take care of every device and scheme to avoid taxation”.

Asked about the other reasons why he was not convinced with the Vodafone judgment, Verma said, “The moral foundation is as much available to tax laws as it is to welfare legislation. It is therefore necessary that while interpreting taxation laws you have to bear that fact in mind. Also, see the implication. While the law permits legitimate avoidance of tax by tax planning, illegitimate tax avoidance by adopting a subterfuge is not permissible. This should be shunned by the courts. This is something that has been settled by most cases. McDowell settled this and is the law of the land.”

He, however, clarified that he was not suggesting that the courts couldn’t take a view different from settled law. “But, the different view can’t be treated as law if it is taken by a three-judge bench. The bench should have referred it to a larger bench. I don’t think the CJI-led bench could have bypassed or distinguished from McDowell,” Verma added.

“However, there is a much bigger reason. Judges need to be committed to constitutional philosophy and not the philosophy of the ruling party. The constitutional philosophy in this case as laid out in Articles 38 and 39. The effect of benefiting a corporate is to cast a higher tax burden on the common man and when you uphold an illegal tax avoidance, then you cast a higher tax burden on the honest tax payer. According to me the Vodafone judgment has all these implications,” the former chief justice said.

“That is why, unfortunately and sadly, Vodafone completes the trinity of infamous judgments of the SC, which, the sooner they are forgotten or overcome, the better it would be.”




NEW DELHI: Judges should not treat as totally erased the evidence tendered by a witness whom the prosecution terms as hostile during a trial, the Supreme Court has said. “It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him,” the apex court bench of Justice B.S. Chauhan and Justice Dipak Misra said Monday.

The judges said that “the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence”.  The court said this while upholding the Allahabad High Court’s verdict by which it reversed the acquittal of Ramesh Harijan in a case of rape and causing the death of a minor child in Uttar Pradesh in 1996.

The high court by its March 23, 2007 order reversed the acquittal decision of an additional district and session judge in Basti district Feb 2, 1999. The apex court said “even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate the grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end”.

“The maxim falsus in uno, falsus in omnibus (false in one, false in all) has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop,” the court said. The judgment said “it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well”.

Referring to the evidence tendered by three hostile witnesses in Harijan’s case, the apex court said: “Undoubtedly, there may be some exaggeration in the evidence of the prosecution witnesses… however, it is the duty of the court to unravel the truth under all circumstances.”

“A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense”, the apex court said, upholding the high court’s verdict setting aside the acquittal of Harijan by the trial court. In Harijan’s case, the five-year-old victim was first buried by her family under the belief that she died of paralysis. But her body was later exhumed and sexual assault and death due to shock was confirmed in a medical test.





Ranjit Kumar, the amicus curiae in the interlinking of rivers case, is a senior advocate in the Supreme Court and has been practising for nearly 32 years. He has been the amicus curiae in about 14 matters before the Supreme Court, including the ones on the cleaning of the Yamuna and the sealing of illegal commercial establishments in Delhi. In this interview to Frontline, he tries to clarify many of the concerns voiced by experts about the Supreme Court’s judgment in the interlinking of rivers case.

Critics of the judgment have pointed out that none of the 30 projects being planned has been approved or sanctioned and that none of them is ready for implementation. The delay has been attributed to the divergence of perspectives on the project between the National Democratic Alliance government and the United Progressive Alliance government which succeeded it.

I don’t want to get into the political realm of the matter. What had already been achieved was that the peninsular and the Himalayan links had been identified. There are 14 Himalayan links and 16 peninsular links. That apart, most of the rivers are inter-State rivers. After the drawing up of the pre-feasibility reports, which itself took time, there was a bar chart presented by the government as to how much time it would take. The government had given milestone timetables under which the implementation of the project would be completed by December 31, 2016.

The steps required were first, the feasibility study, then funding proposals, then the concurrence of the Chief Ministers of the States and then the completion of the detailed project reports (DPRs). And even in 2002, while the matter was going on in the court, the government informed that feasibility studies in respect of six river links had already been completed. So, I would not like to say that none of the projects is lying in limbo. The Standing Committee of Parliament for Water Resources, which has been noticed in paragraph 24 of the judgment, had asked why the project was at a nascent stage. The committee had strongly recommended going ahead with the project. That was why I sought the court’s intervention. Undoubtedly, the ILR [interlinking of rivers] programme is a gigantic challenge, and a momentous one before the Union government.

The report of the National Council for Applied Economic Research (NCAER) appears to be the only basis for the judgment. Does this report adequately assess the gains from ILR for drought prevention and flood control?

The Union of India in all its affidavits filed in the Supreme Court always supported the programme and the NWDA [the National Water Development Agency] continued to function under the aegis of the Secretary, Water Resources. Feasibility reports and DPRs were made, or have been made in the cases of some. Therefore, to say that the NCAER 2008 report is the only basis for the judgment is not correct. The court has definitely lifted from the report’s conclusions dealing with the economic aspect and social impact and the benefits arising from the project.

The two basic premises that determined the admission of PIL in this case were that the ILR would lead to drought proofing and flood control and that there was consensus among the States. These two premises have subsequently become vulnerable.

I do not agree that they are vulnerable. Because nobody can deny that there is flooding every year and droughts every year. How much money does the Prime Minister’s Relief Fund have to expend to mitigate the devastation caused by floods and droughts? For the last 60 years, can we say that the premises of flooding and drought are vulnerable?

Critics point out that courts cannot lay down the manner in which the right to water should be ensured.

It is not the right to water which is being ensured. What is being ensured is the beneficial aspects of having 40 million hectares irrigated. And when you can have waterways systems, the yearly misery of droughts and floods can be got rid of. Chapter 2 of the NCAER report amply bears this out. It explains the benefits of river valley projects, namely, the Indira Gandhi Canal project, the Tennessee Valley project, the Colorado River Canal system and the Three Gorges dam.

The relationship between the right to water and the ILR project has been described as tenuous.

The judgment itself doesn’t say that there is a link between the right to water and the project. The court is only saying that the project is in the national interest. In paragraphs 50, 52, and 63, the court says that these are matters of national interest and national problems should be viewed with greater objectivity, rationality and spirit of service to the nation.

Does the ILR project adequately address the concerns on biodiversity and impact on the environment?

That is why environmentalists are in the task force. They have a big say in the matter. I have attended a few meetings of the task force. Most of the objections pertain to rehabilitation programmes for those being displaced. Therefore, the aspect which relates to rehabilitation will be a part of the project itself as we have seen in other places such as Tehri, and Narmada dam. I don’t agree that the project ignores the concerns on the environment and biodiversity. Even if environmentalists say so, they have to give reasons, and the court will look into the reasons. If it is successful all over the world, and specifically in China, Brazil and Pakistan, then surely it cannot be said that it will not be successful here.

Some of the projects may involve international agreements, especially between India and Bangladesh. Has the judgment taken this into account?

There are issues with Nepal and Bangladesh, which will be sorted out. This will be part of the implementation process. Whatever will be required will be done.

Has the court considered the need for clearances under the Environment Protection and Forest Conservation Acts and the National Rehabilitation Policy, and from the Planning Commission and the Cabinet?

These are all in the implementation process. Reports have to be filed. The court will consider the grounds cited by these agencies if they conclude that the project is not feasible and will dwell on it. I can file a contempt, if nothing is happening, for default or for non-compliance of the directions by the Supreme Court as mentioned in Paragraph 64 (XVI) of the judgment.

Did the UPA government make its stand clear to the court on the ILR project despite its reservations?

The government has at no stage expressed any reservation about the project. A few States may have. The Centre has never taken the stand that it is not feasible. It went along, filed status reports about what has been happening and how the matter has progressed. It did not say that it is not feasible or that we should not do it. If the government were to come to such a conclusion that it is not feasible, then it will make a somersault of its earlier position. Nobody can deny the benefits accruing from these projects.

How do you react to the criticism that the ILR can lead to fresh inter-State river disputes and that it may not solve the existing ones?

I have informed the court that in view of the provisions of the River Boards Act, 1956, enacted by Parliament, there is a declaration under Section 2 that the Central government should take under its control the regulation of inter-State rivers and river valleys. Section 13 provides for optimum utilisation of water resources and for promotion and operation of schemes of flood control. Section 15 empowers preparation of schemes to develop inter-State river or river valleys. And this has been noted in Paragraph 58 of the judgment. Therefore, if there is an existence of regulatory framework by the declaration of Parliament, there need not be any inter-State river dispute. The tribunal is not necessary. The Central government can exercise that power. The Central government never applied its mind to this Act when disputes arose and tribunals were set up. When I brought this to the notice of the court, the judges found a way to deal with the matter.

It is pointed out that the Supreme Court has failed to consider the diversity of views on the reasons for India’s water crisis and that the ILR may not be the best possible answer.

This judgment does not deal with water crisis. This judgment deals with the benefits arising from interlinking and the malice or misery that is prevailing on account of droughts and floods. This judgment does not deal with the water crisis to the extent of drinking water. But it deals with an aspect that if interlinking takes place, how many million hectares of land will be irrigated.



 

NEW DELHI: For long, government and its departments have been getting away lightly in the judiciary as courts have been lenient in viewing the delay in filing of appeals by them. But, the Supreme Court on Friday put an end to it and decided to treat government with the same yardstick used for other litigants when it comes to filing of appeals after the statutory deadline. Dismissing an appeal filed by the chief of the Post Master General against Living Media India Ltd; after 427 days of the statutory period of limitation, a bench of Justices P Sathasivam and J Chelameswar said the apex court was no more willing to buy the stock response of government departments – delay was due to red-tape and pendency of file on a bureaucrat’s desk for long.

“The law of limitation undoubtedly binds everybody including the government,” the bench said refusing to accept the contention that delays in filing of appeals by government departments are due to impersonal machinery and inherited bureaucratic methodology of making multiple notes. “Why the delay is to be condoned mechanically merely because government or wing of the government is a party before us?” the bench asked.

“It is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona-fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape,” said Justice Sathasivam, who wrote the judgment.

This could hit governments hard as they are the biggest litigant before the judiciary accounting for about 40% of total cases pending in various courts either as petitioner or respondent. The sheer volume of work and lack of enough equipped manpower often leave the decision of whether to file an appeal in a limbo till higher-ups take a view of it. Besides, the decision to reduce government litigation has not trickled down.

Justice Sathasivam said: “The government departments are under a special obligation to ensure that they perform their duties with due diligence and commitment. Condoning of delay is an exception and should not be used as an anticipated benefit for government departments.”

He said the law must weigh every litigant on the same scale and “should not be swirled for the benefit of few”. On the case at hand, the court slammed the postal department, saying “From day one the department or the persons concerned have not evinced diligence in prosecuting the matter to this court by taking appropriate steps”.



