An Open Letter to the Prime Minister of India: Let Transparency and Openness Prevail

Respected and Hon’ble Prime Minister,

Let me at the outset most humbly say that there is nothing personal and ad hominem about the issue raised in this letter. Also a DISCLOSURE upfront: I know none of the eminent people referred here; neither have I ever met – even seen – them, personally or in a gathering – social or official or in the courtroom. The issue discussed concerns institutional integrity and rectitude of a revered institution as the Supreme Court of India that we citizens of this country look up to and repose boundless faith in to uphold public ethics and the rule of law. Hence this open letter.

I must admit it is with a sense of great disquiet and dismay that I write to you, consequent to the CJI Justice J.S. Khehar’s recommendation of Justice Dipak Misra’s name as his successor. It is both surprising and intriguing, because as has been reported in the media, there is an ongoing case against Justice Misra for fraudulently and through misrepresentation of facts acquiring land in 1979 when he was an advocate. The DNA newspaper only a few days ago on July 17, 2017 had broken this news on its front page and reported that “A three-member committee of judges, constituted by the Supreme Court to conduct an in-house inquiry against two sitting judges of the Orissa High Court, has halted its proceedings after the name of a senior Supreme Court Justice cropped up during the course of the probe,” and that “The panel, headed by Punjab and Haryana High Court Chief Justice SJ Vazifdar, has now written to the Chief Justice of India for guidance and directions.” Soon thereafter the news was picked up by other newspapers and magazines.

The charges violate the high judicial ethics and values that judges are expected to follow. Shortly after the CJI had sent his recommendation to the government, the CatchNews reported that there is a “Cloud over Dipak Misra as Chief Justice: ICJ claims he is tainted” and “there is a roadblock that must first be passed before such an appointment is made… The obstacle in Misra's path is the International Council of Jurists (ICJ), which has sought a probe against alleged irregularities during his career. ICJ also plans to approach the Centre to oppose his appointment. ICJ had submitted a petition urging Justice Khehar to appoint an in-house committee consisting of Supreme Court judges to look into allegations of Justice Misra’s alleged involvement in a land scam in Orissa while he was an advocate.” The news portal The Wire has also in an article titled “Old Land Allotment Case Casts Shadow on Justice Dipak Misra’s Nomination as CJI” published on July 31, 2017, brought out the facts of this case.

It is not for me to go into the details of the alleged land scam involving illegal transfer of large tracts of government land which Justice Misra is alleged to have acquired with false declarations. Nor the CBI report placed before the Orissa High Court which allegedly had indicted him for “fraudulently” acquiring the plot of land in Cuttack. Nor the fact that, as alleged, he wrongly held on to the land till 2013, even after his elevation to the Supreme Court and even after the CBI had indicted him, and only “quickly gave up the possession of the land to save himself.”

What’s troubling is that the Supreme Court as an institution seems to be following different standards in matters of appointment – one for the oligarchy of the robes, and one for all other institutions. Let me elaborate. In March 2011, a Bench headed by the then Chief Justice S.H. Kapadia and two other judges set aside the appointment of P.J. Thomas as CVC on the ground that “eligible persons should be without any blemish whatsoever and they should not be appointed merely because they were eligible to be considered for the post.” This was despite the fact that Thomas had been appointed as per recommendation of a high power committee (HPC) of three, headed by then Prime Minister Manmohan Singh. Justice Kapadia, who wrote the judgment, held the HPC's decision invalid and the Supreme Court had also inter alia directed that:

i.     All… persons empanelled should be outstanding… persons of impeccable integrity.

ii.        The empanelment should be… on the basis of rational criteria, which has to be reflected by recording of reasons and/or noting akin to reasons by the empanelling authority.

iii.     The empanelling authority, while forwarding the names of the empanelled …persons, should enclose complete information, material and data of the concerned officer/person, whether favourable or adverse. Nothing relevant material should be withheld from the Selection Committee.

iv.    The Selection Committee may adopt a fair and transparent process of consideration of the empanelled officers.

The Court had further observed that it was concerned with the institution and its integrity including institutional competence and functioning and not the desirability of the candidate alone who is going to be the Central Vigilance Commissioner, though personal integrity was also held to be an important quality. It reiterated that the independence and impartiality of the institution like CVC which had to be maintained and preserved in larger interest of the rule of law [Vineet Narain case].

The decision of the Supreme Court to inject transparency in appointment to high public offices was indeed praiseworthy. The conditions it laid down for empanelment too was unimpeachable and beyond reproach. Those were for a statutory post of CVC. Here though the concern is for the constitutional high office of Chief Justice of India. If CVC is an extremely important office for monitoring propriety in public office, the office of the CJI, encompassing as it does today almost all aspects of citizens’ life, is an office like no other. Interestingly, the Constitution is silent on the processes to be followed in appointment of the CJI. Conventionally though the retiring CJI recommends the name of the senior-most judge for appointment by the President of India as his successor. This too has been incorporated in the Memorandum of Procedure – all the more reason why the SC’s directions in the CVC appointment case becomes binding on the CJI.

Today, “We, the people of India…” look up to the Supreme Court with awe and respect. This unqualified and abiding faith puts an onus on the Supreme Court as an institution and especially on the CJI as a person holding this high office. Given this backdrop, one wonders if the CJI has followed the spirit and directions of this very august court he helms today, in recommending the name of his successor to the government. This assails a citizen’s mind today, as brought out below.

i.         In the light of the DNA’s news of July 17, 2017 about the Supreme Court-appointed 3-member in-house panel headed by Chief Justice Vazifdar seeking the CJI’s guidance, how has the CJI established that all the above conditions have been fulfilled?

ii.      Placing reliance on non-availability of information in the public domain, about directions provided to the in-house panel headed by Punjab and Haryana High Court Chief Justice Vazifdar and more importantly even before the issue concerning Justice Misra has been probed by a Supreme Court committee and found to be without any basis, doesn’t the CJI’s recommendation become non-est in law, as the bench of Chief Justice Kapadia had held in the case of appointment of P.J. Thomas as CVC? Ironically, the power to grant permission to proceed against any judge of the Supreme Court/High Court lies on the CJI. Recall how the Supreme Court has dealt with the statutory provision in the CrPC, which while making corruption a cognizable offence requires that whenever an FIR is filed, it is the statutory duty of the police to investigate the offence, collect evidence against the accused, and charge-sheet him in a competent court and, if found guilty, deal with it appropriately. To recall Shanti Bhushan, the respected senior advocate’s words: “The Supreme Court has however by violating this statutory provision in the CrPC given a direction in its Constitution bench judgment in the Veeraswamy case of 1991 that no FIR would be registered against any judge without the permission of the Chief Justice of India. In not a single case has any such permission ever been granted for the registration of an FIR against any judge after that judgment.” This is closeted and “cloistered justice” at its very best that is not open to “suffer the scrutiny and outspoken comments of ordinary men” and institutions. That’s the nub of the problem.

iii.    Since the issue raised by Justice Vazifdar panel seeking guidance hasn’t been addressed yet by the CJI, does the latter’s recommendation of his successor’s name not tantamount, by implication, to brush aside the concerns expressed by the panel, and bringing a closure to the case? Sadly his action echoes the concerns articulated by Shanti Bhushan, who in his 2010 affidavit had publicly stated that out of the last 16 Chief Justices of India, eight of them were definitely corrupt: “…that the judiciary has adopted the policy of sweeping all allegations of judicial corruption under the carpet in the belief that such allegations might tarnish the image of the judiciary. It does not realize that this policy has played a big role in increasing judicial corruption.” Are we institutionalizing this practice?

iv.      How has the Supreme Court’s prescription in their 2011 CVC judgment with regard to institutional integrity and institutional competence and functioning, apart from personal integrity, been addressed? This too is unclear and hence very disturbing.

v.       While it will be presumptuous on one’s part to second guess the content of his letter recommending his successor, one can safely conclude that the CJI hasn’t yet set up any in-house enquiry committee to examine the issues. Nor has he possibly given any direction to the Justice Vazifdar panel. Must we then, in the absence of information available in public domain, conclude that there are two standards for appointments to high public offices in vogue: one for the judiciary, the other for other institutions? If it’s so, isn’t that unfair and inequitable?

vi.    My mind, disquiet and far from stilled, travels back to Justice C.K. Prasad’s judgment, which in 2014 had created a nationwide controversy. As reported, he pulled out the 35-hectare Cidco prime land allotment case of public land originally listed before a three-judge SC bench, and on an oral plea, decided within a couple of minutes a 12-year-long battle, at a throwaway price of Rs 33 crore in favour of the winning bidder. The market value of the 35-hectare land was said to be about 100 times more – so glaring was the case that it prompted senior lawyer Dushyant Dave to question the bench's judicial propriety. It is this aspect of institutional integrity that Justice Kapadia had laid emphasis on in his March 3, 2011 CVC judgment. The CJI is much more than the primus inter pares vis-a-vis other SC judges. He exercises administrative powers, assigns cases to other SC judges and thus plays an extremely important role in the nation’s judicial life.

Now, it’s for you, Hon’ble Prime Minister, as the head of the government, to act and do the appropriate course correction. Para 2 of the Memorandum of Procedure amply makes it clear that it is for the government to decide and own responsibility for the CJI’s appointment. Let Transparency and Openness prevail in public governance. We fervently hope you will ensure that.

With kind regards,

Yours sincerely,

Sudhansu Mohanty

(Reproduced from medium.com)

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