Saturday, January 23, 2010

Impeaching a Judge


Impeachment proceedings against Justice Dinakaran are on. The controversy which started over the suitability of his appointment as a Supreme Court judge has expanded into considering whether he should be allowed to remain a judge – leave alone the Chief Justice of Karnataka. Accordingly, the Vice-President M.H. Ansari (as Chairman Rajya Sabha) has appointed Justice Sirpurkar (Supreme Court), Justice Dave (High Court), and P.P. Rao (distinguished jurist) as members of the Committee under the Judges Enquiry Act 1968 – as a prelude to impeachment.

But no sooner was his penultimate proceeding started, those very groups responsible for the campaign against Justice Dinakaran now want a recall of two members (Sirpurkar and P.P. Rao) and inquiry to be reconsituted. This request flows from Forum for Judicial Accountability (Chennai or Vaigai group) and Campaign for Judicial Accountability (Delhi or Bhushan group). Both have been at the forefront of this campaign supported by others. The two groups are convinced he is guilty. Others who support, like myself, feel that there is prima facie case for an inquiry which alone can determine his guilt.

Why should Justice Sirpurkar and PP Rao be asked by the Vice-President to recuse themselves? It is also suggested that since the Chief Justice of India (CJI) was consulted with these appointments, these appointments are suspect because the CJI had defended the collegium’s affirmation of the decision to elevate Justice Dinakaran to the Supreme Court. The Chennai group feels that it has a special right to challenge these appointments because they were the first to explode the Dinakaran issue to the public. The Delhi group is a self-styled vociferous custodian of judicial morals. Democracy is grateful to both of them.

At the very outset, let us be clear that the Inquiry Committee is not a jury. Nor are we in the process of jury selection where you keep opposing appointments until you get the jury of your choice. If the Vagai-Bhushan groups want to appoint judges of their choice or satisfaction, the rule of law and fairness is ill served. Nor should it appear that this is so.

Let us start with P.P. Rao. Did either of the groups speak to P.P. Rao? No, they did not. Well, I did. P.P. Rao drafted the memo of 28th November 2009 asking Dinakaran to face the inquiry. Reliance was placed on a newspaper item that it was “learnt” that P.P. Rao had been consulted by Dinakaran. The next step was to jump to conclusion that Rao was disqualified. First, P.P. Rao has not given any “opinion” to Dinakaran. Dinakaran is not his client for a fee. He is not a friend. There is no pecuniary “bias”. Dinakaran did call on Rao, who told him to face an inquiry and step down from work during that period. Rao’s stance has always been clear. The Chennai group also asserts Rao and Dinakaran along with others are on the General Council of the National Law School. According to them, the test is that all those who “has had any association with the person whose acts are to be gone into” are disqualified. This would exclude all judges of the Supreme Court and High Court Chief Justices, since they all meet at Chief Justices Conference, and other meetings. This concept of “association” is then restricted by the Chennai-group to “close association” with Dinakaran. This test, too, fails. Rao is not closely associated with Dinakaran. Rao is one of the most distinguished counsels and jurists in India – known for courage, integrity, calm and brilliance. His impeccable record shows he is above suspicion. The only way to malign him is to force unwarranted suspicions on him. Rao is a gift to the legal and public community. Let things remain that way.

An embarrassed Rao wrote to the Vice-President to seek permission to recuse in the light of the controversy. The Vice-President has declined. Mudslinging without foundation is neither fair or in the public interest.

Justice Sirpurkar is a judge of the Supreme Court against whom there is no allegation of judicial impropriety. His recusal is sought for two reasons. First, both were judges of the Chennai High Court between 1997 and 2003 and sat on benches and committees together. This could hardly constitute a disqualification. If correct, no Supreme Court judge could ever sit on the inquiry committee against a Supreme Court judge because they invariably sit on cases together. The second reason advanced by the Bhushan-group is that it “has come to know… (that) he has told several responsible lawyers after the controversy “that he knows Dinakaran well and that he is a honourable and wealthy man” and has therefore “prejudged the issue”. Corridor gossip lacks credibility. Even so, Dinakaran is prima facie innocent until proven guilty. His inquiry should be fair. Justice Sirpurkar will, and must have, assessed the situation before accepting this assignment. Attributing bias on unwarranted suspicions is unacceptable.

The sad part of such accusative campaigns is that it puts public minds in a fix. If Dinakaran is acquitted, there will be a “I-told-you-so”. If found guilty, the judges and Rao will be applauded. The effect of such a campaign is a message to Sirpurkar and Rao that they are forewarned that they must convict to prove their independence and impartiality. Such pressure on an independent inquiry is simply wrong.

The next issue is whether the Chief Justice of India (CJI) is to be consulted since it is alleged that the Judges Inquiry Act 1968 does not require consultation and the CJI had defended the decision to elevate Dinakaran to the Supreme Court. That the CJI defended his own and the decision to the collegium is hardly suprising. Placed in doubt he again referred the matter to the collegium, which reversed the earlier decision. The CJI asked the government to inquire into the allegations against Dinakaran. As CJI, and head of the judiciary, he had to be consulted on which judge could be spared from court work. On the material placed, there is no reason why the CJI should not discharge his constitutional functions.

This leaves the issue of the Survey of India Report to determine the extent of the Dinakaran lands and alleged encroachment. The Chennai group says that the Survey of India’s deliberations should stop, so that the parallel proceedings should not take place in Parliament and the Survey of India. I think this demand is correct, but should not possess a shrillness of articulation. On 11th January 2010, the CJI told a newspaper that he asked the government to conduct an inquiry and does not know what the Survey’s report says. What, then, is the solution? Clearly, the Vice-President of the Rajya Sabha (to whom the Chennai-group wrote the letter) has no jurisdiction. Nor, indeed, the Chief Justice of India, who did not order it. Before the matter is litigated, the Government of India has the power to stop the Survey of India. It will also be within the remit of the inquiry and Parliament to seek the report or further evidence, if so advised.

Vigilance is important to democracy, excessive suspicion is not. Public scrutiny is vital, but it has to be grounded with well founded rigour.

Saturday, January 9, 2010

Police as Criminals

Police as criminals
Rajeev Dhavan

Police who turn criminal are not ordinary criminals. As soon as they move to the ‘dark side’ they build social and political impunities for themselves. Fellow policemen support them. Politicians of various complexions protect them. Rank and file policeman act as their thugs. Other thugs are at their beck and call. Real cases against them are ignored. Fake cases are registered by them to ensnare whom they want. Beyond the bent policeman lies the police ‘don’ who kills with impunity, appropriates at will and inflicts vengeance with ferocity.

The real problem with the Rathore case is that India does not have effective processes to deal with powerful policeman. Their tribe is increasing. Anti-terrorist campaigns are making terrorists in their own cause. The list is increasing: ADGP Sumedh Saini made members of Kumar family, disappear. The other brother, Ashish (a client and friend) has knocked on the highest and lowest courts for justice without success. After 9 years IG R.K. Sharma was sentenced for killing journalist Shivani Bhatnagar (another friend). In Rajasthan, DIG Tandon is accused of raping a tribal. Pradeep Sharma responsible for 107 encounter deaths is now held for fake encounter. Without activist-media campaigns (as in the Jessica Lal, Nitish Katara and Priyadarshini Mattoo cases) these are bound to fail. Such campaigns are not trial by media and should not be treated as contempt of court. A popular cry for justice is not populist justice.

Let us turn to the Rathore case. Ruchika loved tennis. Rathore was a big shot in the Lawn Tennis Association. Around August 1990 he ensnared, took a fancy towards Ruchika and molested her. Reported to Home Secretary Duggal, Rathore decided to wreak vengeance. On 17 August 1990 Rathore’s hoodlums made slogans against poor Ruchika and smashed the panes of her house. When the government decided to register an FIR in 1992 against Rathore, the next victim was Ashu (Ruchika’s brother). Arrested on false cases of car theft, in October 1993 he was detained, beaten made to sign confessional statements and taken to Ruchika to remind her of what would befall her family. Ruchika was expelled from school apparently at his instance. Unable to stand the humiliation, embarrassment and pain on 28 December 1993 Ruchika committed suicide. The post mortem was deliberately botched up. No real investigation took place. Within a month, in January 1994, charges against Rathore were dropped! After three recommendations for action between 1990 and 1992, no departmental action was taken against him. It took till 21 August 1999for Ruchika’s friend Aradhana to secure an order for a CBI inquiry from the Punjab and Haryana (P&H) High Court. CBI officer R.M. Singh is now willing to reveal how Rathore tried to pressurize the CBI. Two years later the CBI recommended Rathore’s removal. This was not done! He retired as DGP in 2002! The CBI charge sheeted him in December 1999 for outraging and insulting a women’s modesty. The charge of ‘abetment of suicide’ was quashed by the P&H High Court and Supreme Court! Effectively, he was found guilty of flirtation! In December 2009 – fined Rs.1000 and sentenced to six months rigorous imprisonment and allowed bail!
The law tries the crime not the criminal. Thus, Rathore is portrayed as having committed a number of individual smaller crimes with the real and full story missing. It is like looking at still photographs instead of a cinematographic depiction of evil. Between 1999-2000, Rathore was successfully charged only with flirtation. Was that all that Rathore did? Under public pressure, in 2009-2010 he was charged with filing false cases against Ruchika’s brother Ashu, fabricating a false post mortem for Ruchika and abetment of her suicide. Already rejected up to the Supreme Court in 2002, the abetment charge will be difficult to reopen. What is missing from the legal response is his alleged systematic harassment of Ruchika and her family, sending goondas to her home, securing her expulsion from school, targeting Ashu, interfering with police and CBI investigation, victimization – for almost 20 years with a smile on his face. On 8th January 2010 HC refused to grant bail. The smile has gone to gleam in jail unless the Supreme Court decides otherwise.

How does one get justice against pathologically vindictive police officers like Rathore and Saini who commit not one but several crimes? The answer lies in examining the process and not just the event. Indian public interest law has an answer. In December 2000, the P&H High Court itself took suo motu notice, of Rathore’s vengeance against Ruchika’s brother Ashu. On 5 July 2002 they asked District Judge, Patiala to examine the Ashu victimization. This would have x-rayed Rathore’s misdeeds. But on 6 May 2005, the Supreme Court through Justice Sabharwal made an egregious mistake and stopped the High Court proceeding. Justice Sabharwal, one of the finest judges the Supreme Court (whatever anyone else may think) simply lost the plot in this case. It was wrong to recommend a bit-by-bit justice against policeman who used the police and hoodlums to wreak a continuous stream of harassment and crimes against a family who dared oppose them. Examining the process would reveal the full story. This valuable opportunity into investigating a mass crime with its full discontents was lost.

In my view, even now no independent investigation can take place unless it is effectively monitored by the High Court or Supreme Court. Rathore has the protection of IAS and IPS officers; and of politicians and Chief Ministers. In the Hawala case (1998), the Supreme Court ensured the process of Hawala transactions was properly investigated. In the Noida case after several years of monitoring, the case against Neera Yadav proceeded to trial. Noida’s favoured allotments for 10 years were screened. This is what was begun by the High Court in 2002 for Rathore, but stopped after 3 years by the Supreme Court itself. One can only urge the Supreme Court to follow the Hawala–Noida example to supervise investigation into Rathore. Years ago, the Supreme Court would not have hesitated to do this. Today the judicial colossus, like Atlas, shrugs its shoulders.

The fulcrum around which this problem rotates is to work out a response to dealing with the police as criminals. India needs a good honest police. We know how brutal the police can be. Chhattisgarh police have gone berserk in punishing peaceful activists. But where the police turn gangster a new method of monitored investigation by courts is necessary and proper. It is fit for the Chief Justice of India to set up a process for Rathore’s unrepentant violation of due process and human rights.

Law Minister Moily’s faith in fast track courts as a complete answer in this case is exasperating. Fast track courts can only process what is fed to them. For the future specifically, in the long term substantive offences on police misbehaviour and independent investigation processes are necessary. In the Rathore case itself, his entire term of office from 1990 needs to be x-rayed for systematic abuses of power. This is equally true for his colleague, Saini. This will reveal far more than is known today. Rathore’s smile has gone. That is not enough. He needs to be exposed and punished according to law under the vigilant eye of the High Court or Supreme Court

Wednesday, January 6, 2010

Conviction by Deportation

Conviction By Deportation

On 5th December a Nepalese student, Nitu Singh, was deported by the Maharashtra Police to Kathmandu on grounds that she was allegedly involved in anti-national activities. Reports state that this deportation was carried out at the behest of her influential politician husband – a domestic feud being couched as national security issue. The Pune police has stuck to the stand that as part of their “secret-operation” they found that she was involved in “anti-national” activities and hence handed over to her parents. DCP, Pune also made a statement that Nitu’s activities were constantly under watch. Home Ministry has taken a completely contradictory stand – Mr. Chidambaram said that there is no case against her as far as the central government is concerned. The Home Ministry sources also indicated that the Pune Police has exceeded its brief in deporting Nitu Singh without highlighting her alleged links with Maoists to the Home Ministry, Intelligence Bureau (IB) or Research and Analysis Wing (Raw).

The facts thus far are – a) Pune Police clandestinely deports a Nepalese Film student with complete disregard to procedure on grounds of threat to national security; b) There are allegations that her influential politician husband is behind the deportation; c) Nitu Singh’s father had written several letters to Pune Police seeking their help in deporting her and in a subsequent letter to Ms. Brinda Karat, he “admits that he was misled by his son-in-law and he would like Nitu Singh to finish her studies”; d) Neither the Home Ministry, IB or Raw is informed about her “anti-national activities”.

The Pune Police operation is so secretive that they did not even inform the most important offices (RAW, IB and Home Ministry) dealing with threat to national security. Further, why did the police not arrest Nitu Singh for further investigation? If the state police is to be believed, then Nitu Singh would definitely have some accomplice or an organizational back-up in her “anti-national” activities”.

The Pune Police actions smack of impunity and illegality. It is a sign of a banana republic. But India is not a banana republic. PILSARC feels that strong action should be taken against the officers who ordered and carried out this operation. The Centre must also take this issue seriously and ensure that such clandestine, illegal acts do not recur. It reflects poorly on the whole nation and casts serious doubts on the institutions in India, which are meant to promote and protect democracy, but are acting against it.