Should Justice Jagdish Bhalla be impeached?

Serious allegations of corruption and nepotism have been levelled against the acting Chief Justice of Chhattisgarh Jagdish Bhalla. Whether a sufficient number of MPs would sign an impeachment motion against him remains to be seen.

By Pranjoy Guha Thakurta

In the history of independent India, there have barely four attempts made to impeach a senior judge. None of these attempts were successful. Only on one occasion has a committee appointed by Parliament found a judge guilty – but in this instance as well, the concerned judge was not removed. Now, moves are afoot to impeach another senior judge, Justice Jagdish Bhalla, acting Chief Justice of the Chhattisgarh High Court.

Two former Union Law Ministers Ram Jethmalani and Shanti Bhushan and eminent jurist and expert on the Indian Constitution Fali S. Nariman, under the aegis of the Campaign for Judicial Accountability and Judicial Reforms (CJA), have drafted a notice for the presentation of a motion for the removal of Justice Bhalla from his current position under the provisions of the Judges Inquiry Act of 1968. If the notice is signed by either 100 MPs belonging to the Lok Sabha or 50 MPs of the Rajya Sabha, the Speaker of the Lok Sabha or the Chairperson of the Rajya Sabha would have to constitute a three member committee to investigate the veracity of the allegations against Justice Bhalla.

Allegations against Justice Bhalla:
Three serious sets of allegations against the judge are detailed.
Charge 1: Justice Bhalla, while serving as a judge of the Lucknow bench of the Allahabad High Court in 2003, purchased through his wife a plot of land measuring roughly 7,200 square meters at a location near the Noida-Greater Noida expressway at a price that was way below the prevailing market price, from persons against whom several criminal and civil cases were pending in the courts of Uttar Pradesh where Justice Bhalla was in a position to exercise his influence.

Renu Bhalla, wife of Justice Bhalla, purchased the 7,200 sq. m. plot of land through two separate sale deeds both dated July 21, 2003, for sums of Rs 1 lakh and Rs 4 lakh respectively, from Veena Goel, wife of Moti Goel, and from Anshu Bhale, son of V.K. Jain, through holders of power of attorney. This plot of land is situated in Village Shahpur Goverdhanpur Khader, in Dadri, Noida, near Sector 132, along the Noida-Greater Noida expressway.

On March 28, 2005, the Deputy Superintendent of Police, Noida, wrote to the District Magistrate, Noida, pointing out that during an investigation into various criminal cases of cheating, forgery and corruption against Moti Goel, described as a “leader of a land mafia”, he had come across evidence that Goel had been involved in acquiring and selling land belonging to the gaon sabha (village council) which needed further investigation by a revenue official. The DM marked the DSP’s note for investigation to the Sub-Divisional Magistrate.

The SDM, in two reports to the DM dated June 21, 2006 and September 30 the same year confirmed the DSP’s findings that different plots of land belonging to the gaon sabha had been illegally acquired by members of the land mafia operating in Noida, namely, Goel, Harish Nagar and others. The report of the SDM pointed out that Goel and his associates had sold portions of the illegally acquired land to certain influential persons for amounts that were well below prevailing market prices. The SDM stated there were a number of disputes relating to the acquisition of these plots of land and several criminal cases were pending against Goel in several courts in UP.

Significantly, the SDM specifically mentioned the instance of Renu Bhalla being sold a 7,200 sq m. plot for Rs 5 lakh against a market price that was nearly 150 times higher at Rs 7.2 crore! According to the SDM, even at the ‘circle rate’ (or the official minimum rate at which the government can acquire land in that area for, among other things, public purposes), the plot of land would be valued 10 times higher at Rs 72 lakh. It was pointed out that the sale deeds mentioned a circle rate of Rs 20 lakh per hectare for this plot of land on the basis of which stamp duty was paid.
The Campaign for Judicial Accountability and Judicial Reforms (CJA) is of the view that “it is inconceivable that this purchase of land could have been done by Renu Bhalla who is a housewife without the active involvement of Justice Bhalla”. The CJA, in a press statement, has argued that the purchase of the plot of land “at a price which is less than one per cent of its market price from members of a land mafia against whom various civil and criminal cases were going on in courts of UP over which Justice Bhalla, as a senior judge of the Lucknow bench, could have exercised influence in various ways, amounts to gross misconduct on his part and potentially involves offences under the Prevention of Corruption Act”.

Charge 2: Justice Bhalla, as a senior judge of the Lucknow bench of the Allahabad High Court, ordered the constitution of a special bench after court hours on July 7, 2006, to hear a petition that was unnumbered and unregistered pertaining to a private firm, Reliance Energy Generation Limited, located in Noida. What was out of the ordinary was that Justice Bhalla’s son Aarohi Bhalla was acting as the counsel for Reliance. That’s not all. The Lucknow bench just did not have territorial jurisdiction to entertain the case; Noida falls under the jurisdiction of the Allahabad bench of the court.

On July 7, Justice Bhalla ordered the constitution of a special bench comprising Justices Bhanwar Singh and S.N. Shukla after court hours – in fact, close to midnight -- to hear the unregistered case of Reliance Energy relating to Noida. The bench not only heard the petition, but proceeded to pass final orders in favour of the company without issuing a notice to the UP state government. According to the CJA, the action of Justice Bhalla is tantamount to “serious misconduct”.
To place this case in perspective, in July 2006, a large number of residents (mainly farmers) of a cluster of villages in Ghaziabad district of UP had conducted a series of demonstrations protesting against the acquisition of land owned by some 2,500 families to set up a large 3,000 megawatt power generation project by Reliance Energy. Because of the agitation by members of the evictee families and their supporters, the company had approached the local police authorities. The police, in turn, reportedly advised the company that it should obtain a court order that would facilitate the eviction process.

The Asian Human Rights Commission has stated: “The state police was directed to provide protection to the company. Armed with the order, the company and the state police unleashed terror in the villages. Several persons were injured, houses were looted and the police opened fire upon the protesting villagers.

“The Indian judiciary is often criticized for… delay(s) (in dispensing justice). There is an alternate view, however, that the judiciary in India is not appreciated for its promptness in dealing with certain cases, though it helps only 10 per cent of the litigants. It is evident that the private company that approached Justice Bhalla belongs to this 10 per cent and the people (on) whom the police fired…was from the (remaining) 90 per cent.”

Charge 3: It is alleged that Justice Bhalla used his position and influence to obtain the allotment of plots of land for himself as well as his close relatives, including his son, brother, sister, brother-in-law and sister-in-law from the Lucknow Development Authority (LDA) and the Noida Authority (once known as the New Okhla Industrial Development Area Authority). Thereafter, he allegedly used his influence to get several of these allotments of plots of land changed from new sectors to developed sectors (where land values were substantially higher) through the discretionary powers vested with the Vice Chairman of the LDA.

On July 2, 2005, the Noida Authority, after a draw of lots, allotted plot No. F-52 in Sector 44, Noida, to Aarohi Bhalla, son of Justice Bhalla, at a price that was fraction of its market value. The draw of lots itself became a topic of considerable controversy and the Central Bureau of Investigation (CBI) is currently investigating the allotment under court orders. Preliminary investigations, including those conducted by the media, indicate that a disproportionate number of allottees were very important persons, including prominent politicians, bureaucrats, media personnel, not to mention relatives of judges.

The draw of lots, which was allegedly rigged, was cancelled by the Noida Authority itself two days later on July 4. Thereafter, on October 4, the Allahabad High Court ordered a CBI investigation to “find out the (names of) officials/employees of Noida (Authority), UPDESCO (Uttar Pradesh Development Systems Corporation Limited) and the state government responsible for manipulation in the draw of lots held by Noida on 2/7/05 for its residential plot scheme 2004(1), and the names of such persons/beneficiaries at whose behest and direction, the manipulation was done.”
On September 23, 2003, Justice Bhalla was allotted plot No. A-5/410 in Viraj Khand, Gomti Nagar by the LDA despite the fact that he already owned a plot allotted to him earlier by the LDA (plot 5/74 B, Vishal Khand) and the LDA’s rules specified that no person is entitled for a second allotment of land in the same city. Within three months, the LDA Vice Chairman changed the allotment to a far more developed and posh locality (A 5/25 Vineet Khand) purportedly on the ground that Viraj Khand was not developed.

Earlier, on November 22, 2001, a plot of land (No. 3/241 in Viraj Khand) that had been allotted to Justice Bhalla’s son, Aarohi Bhalla, was also changed soon after the allotment was made to Vinay Khand (first to plot 5/20 and then to 3/242). Significantly, Aarohi Bhalla sold this plot of land within four months of allotment on March 26, 2002, presumably for a hefty profit.
Even before this allotment, a plot of land (1/55, Viraj Khand) had been allotted to Jaideep Bhalla, brother of Justice Bhalla on July 19, 1997. On October 15, 2003 (around the time that Justice Bhalla got his allotment changed from Viraj Khand to Vineet Khand), Jaideep Bhalla’s allotment was also changed (to B-2/151 Vishesh Khand) by the Vice Chairman, LDA, using his discretionary powers.

Yet another plot of land (3/19, Viraj Khand) had been allotted to Pratibha Bhalla, wife of Jaideep Bhalla on April 7, 1998. On June 29, 2002, this plot too was transferred to Vishesh Khand (plot No. 4/133) by the Vice Chairman, LDA. Plot No 3/235 in Viraj Khand was allotted to Ashok Bhanot (Justice Bhalla’s sister’s husband) on April 17, 1998 and on October 19, 2000, this plot was also changed, first to 1/42, Vineet Khand and subsequently, on June 28, 2001, to an even more developed sector, 4/78, Vishal Khand. Plot No. 5/20, B Type, Vinay Khand was allotted on June 2, 2001, to Justice Bhalla’s cousin, Manorama Sharma and subsequently transferred to 4/82, Vishal Khand.

The short point is that the CJA alleges that the allotment and subsequent transfer of so many plots of land in Lucknow would not have been possible if Justice Bhalla had not used the “influence” of his official position as a judge and that this is tantamount to “serious misconduct”.

Impeaching a judge: A cumbersome process The process of removing a sitting judge of the higher judiciary – the word “impeachment” is never used in the Constitution – is rather cumbersome. After the requisite number of MPs have signed the petition and the Speaker/Chairperson of the Lok Sabha/Rajya Sabha has constituted a panel of three members (comprising a sitting judge of the Supreme Court, a chief justice of a high court and an eminent jurist), the committee would examine the authenticity of the charges. At the end of its investigation, the committee would submit a report to the Speaker/Chairperson stating its findings of each charge levelled after which the report would be laid before the House.

If the report of the committee contains a finding that the judge concerned is not guilty of any misconduct or misbehaviour, then the motion would automatically lapse. If, on the other hand, the report of the committee finds the judge guilty of the allegations levelled against and recommends his removal, the motion seeking his removal has to be taken up for consideration by one or both Houses of Parliament. Thereafter, if the motion for removal of the judge is approved by a three-fourths majority of members of Parliament, present and voting in the House or Houses, the judge would be considered removed or impeached.

At least three attempts have been made in the past (all of them unsuccessful) to obtain the signatures of the requisite number of MPs to initiate a process of impeachment against three senior judges, including two former Chief Justices of India, A.S. Anand and M.M. Punchhi and former Chief Justice of the Madras High Court Subhashan Reddy.

In 1993, for the first and so far only time, after he received the signatures of more than 100 MPs on a motion, the Speaker of the Lok Sabha had constituted a committee to investigate the charges against a former judge of the Supreme Court of India V. Ramaswami. The committee held the judge guilty of the charges against him relating to purchases of furniture and other items for his residence and the court he presided over. The irregularities in these purchases had earlier been stated in a report of a government auditor. Still Justice Ramaswami was not removed because MPs belonging to the ruling Congress party decided to abstain from voting on his impeachment motion.
A part of a statement issued by the non-governmental organization Asian Human Rights Commission on May 26 reads as follows: “(The) appointment, transfer and promotion of judges, particularly those in the higher judiciary are often matters that lack transparency in India. A judge of a high court or the Supreme Court can only be removed through an impeachment process….Parliamentarians have showed their lack of will in the past when they were forced to deal with the case of one of the most controversial judges in the country’s history. However, the bar at that time had shown the courage to refuse to practice in the court presided by that judge.
“The Supreme Court delayed taking any decision at that time too (as in the case of Justice Bhalla)… meanwhile that judge was promoted as the chief justice of a high court and later elevated to the Supreme Court. However, the judge resigned putting an end to the entire issue… Questions regarding whether the judge was asked to repay the taxpayers’ money that he spent illegally (are) yet to be answered.

“… In a reasonably functioning democracy the judiciary is not considered as a holy cow. The judiciary is yet another organ of the state intended to serve the people. The very nature of this service requires the judiciary to maintain certain basic standards of which the most important is the integrity of the judges. However, judges are human beings and to err is human. What is required is the openness to correct the error and to prevent repetition of mistakes. What the Indian judiciary lacks is precisely this. This, among various other factors, has resulted in the ordinary people resorting to other means to settle their issues.”

The long arm of the law:
It has taken 15 months of representations by the CJA to reach the current position. After official records of the land sale to Renu Bhalla by Moti Goel became available to the CJA, it wrote to the then Chief Justice of the Supreme Court of India Y.K. Sabharwal, urging him to direct an investigating agency to conduct a thorough investigation into the allegations. Thereafter, after the July 7, 2006 Reliance Energy case, on July 28, the CJA again wrote to the Chief Justice of India apprising him of the facts of the case, seeking an investigation and demanding the “immediate transfer” of Justice Bhalla.

Since no action was forthcoming from Chief Justice of India Sabharwal, on November 1, 2006, the CJA again wrote to him seeking is permission to register a first information report (FIR) in the case relating to purchase of land by Renu Bhalla. This was required because the 1991 judgement of the Supreme Court in the K. Veeraswami case immunized judges of the high courts or the Supreme Court from criminal investigation -- neither a FIR can be lodged nor a probe can be conducted against a judge without the consent of the Chief Justice of India.

Instead of initiating action on the basis of the allegations levelled against Justice Bhalla, what took place was just the opposite. Justice Bhalla was promoted. On December 12 last year, a collegium (or committee) of judges of the Supreme Court recommended that he be promoted as Chief Justice of Kerala. The collegium was not unanimous in its recommendation for there were dissenting views. On learning about this development, Shanti Bhushan (former Law Minister and an important functionary of the CJA) wrote to then President of India A.P.J. Abdul Kalam, the Prime Minister Manmohan Singh and others calling for initiation of impeachment proceedings against Justice Bhalla.

It subsequently transpired that two judges of the Supreme Court who were from the Allahabad High Court needed to be consulted before Justice Bhalla could be appointed as Chief Justice of Kerala. The CJA again wrote to President Kalam on February 3 this year about the lack of consultation and urged him to send the matter of his appointment back to the Supreme Court collegium to complete the process of consultation.

Meanwhile, Chief Justice of India Sabharwal retired and K. G. Balakrishnan became the new Chief Justice of India. After demitting office, outgoing Chief Justice of India Y.K. Sabharwal said certain “leaders” of the bar in Allahabad had denied that there was any truth in the allegations against Justice Bhalla.

Though no impeachment proceedings were initiated, former President Kalam returned the recommendation of Justice Bhalla’s appointment to the Union Ministry of Law and Justice for its reconsideration. The file was then returned by the Prime Minister to the Chief Justice. Since the recommendation of the Supreme Court collegium was not unanimous and therefore, not binding on the government, the proposal for Justice Bhalla’s appointment as Chief Justice of Kerala was dropped. Temporarily, it turned out.

A new proposal was soon initiated for transferring Justice Bhalla to Chhatisgarh. This proposal was accepted and Justice Bhalla was transferred as the puisne judge of Chattisgarh. Immediately on his reaching Raipur (capital of Chhattisgarh), he was appointed Acting Chief Justice by a notification issued by the Law Ministry. As soon as this became known, on April 12, Shanti Bhushan wrote to the President of India yet again pointing out that a person who had been found unfit to be appointed as a Chief Justice must not be allowed to remain Acting Chief Justice, in which capacity he discharges all the functions of a regular Chief Justice. However, Justice Bhalla has functioned as the Acting Chief Justice of Chhatisgarh over the last seven months.

A public statement issued by the CJA states that Justice Bhalla has been recommended by the Supreme Court collegium to be promoted and appointed as the regular Chief Justice of the Uttarakhand High Court. “It has been learnt that this recommendation has been made by the Chief Justice of India despite the strong dissent of the seniormost puisne judge of the Supreme Court,” the statement adds. According to the CJA, the circumstances under which Justice Bhalla has been promoted “indicates that the Code of Conduct which is said to have been adopted in the Chief Justice’s Conference in 1999 and which envisages an in-house inquiry by a judges’ committee into… charges against sitting judges is non-functional” and “also indicates serious problems in the working of the system of judicial appointments and transfers”.

Given this backdrop, the CJA comprising eminent jurists has urged all MPs cutting across party lines to initiate proceedings under the Judges Inquiry Act, 1968, to impeach Justice Bhalla. The CJA believes that by signing the motion for removal of the judge, the MPs would be “affirming their firm commitment to maintaining and upholding the rule of law and the Constitution”. Whether MPs would respond in sufficient numbers and sign the motion for initiation of impeachment proceedings against Justice Bhalla, remains to be seen.

India’s judiciary:
The shoe fits the other foot Corruption in the Indian judiciary is a subject that is often discussed in private, less so in public. The media is apprehensive of raising this topic except in very general terms simply because journalists fear that a one-line judgement from a member of the bench would be sufficient to see them behind bars for contempt of court. Even if journalists cite truth as their defence, as the Mid-day journalists have done in the case relating to former Chief Justice of India Sabharwal, most members of the fourth estate are rather wary about treading too hard on the toes of the judiciary.

There are some who argue that the ‘last’ upright wing of the Indian state is the judiciary since the country’s political system and its bureaucracy have become thoroughly corrupt and criminalized. But the reality on the ground is quite different. Most ordinary citizens find the criminal justice system biased in favour of the wealthy and the powerful. Litigation is not merely expensive. The judicial system is so procedurally complex that few believe that their disputes would be adjudicated upon within a reasonable period of time.

For the underprivileged, going to court is more often than not a last resort for redressing their grievances. The majority of prisoners under trial spend more time in jail than the maximum sentence that can be imposed on them.

In November 2007, Justice Vijender Kumar Jain was appointed Chief Justice of the Punjab and Haryana High Court despite the fact that at least one judge in the collegium of five judges of the Supreme Court strongly opposed his elevation together with two other Supreme Court judges. A complaint had been made against Justice Jain that he had decided a case in favour of a litigant who he personally knew well enough to allow his grand-daughter’s marriage to be conducted at his official residence three years earlier. Former Chief Justice Sabharwal stated that there was nothing in the complaint against Justice Jain to prevent him from being elevated.

Former Law Minister Ram Jethmalani had levelled a series of allegations relating to the ‘real’ age of former Chief Justice of India A.S. Anand in a book. In November 2002, three judges of the Karnataka High Court were allegedly found in the company of commercial sex workers in a holiday resort in Mysore. In April 2004, after the controversial former Chief Justice of the Punjab and Haryana High Court Binod Kumar Roy questioned two of his colleagues for becoming members of a private golf club against which a case was pending, 25 judges of the court went on a day’s mass leave, unprecedented in Indian judicial history. Justice Roy was thereafter transferred, first to Guwahati and then to Sikkim.

Another judge who was recently transferred to Sikkim was Justice B.J. Shethna of the Gujarat High Court. He had had a public spat with his brother judge Justice P.B. Majmudar. Justice Shethna compared the move of the Supreme Court to Christ’s crucifixion. Senior jurist Fali Nariman wrote that the Supreme Court collegium’s decision to transfer him was unfair to the people of Sikkim.

In May 1977, a full bench of the Supreme Court restated 16 values of judicial life. These included three relating to a judge’s professional association with his family members. Yet, it is common knowledge that many relatives of judges continue to practice as lawyers in the same courts over which the judges preside. The Supreme Court has recommended that the Right to Information Act be amended to exclude it from the jurisdiction of the Central Information Commission – this prevents even routine information relating to appointments of junior employees from coming into the public domain. In November, the Union Cabinet approved an amendment to the Judges Inquiry Act providing for the appointment of a National Judicial Council comprising judges to look into complaints against judges.

The present Chief Justice of India K.G. Balakrishnan has said that he is not in favour of a proposal to make it mandatory for judges to declare their assets. He has asserted that any inquiry against a judge by any person who is not a judge would result in a “serious encroachment” on the independence of the judiciary. Not everyone shares the learned Chief Justice’s opinion in this regard. Lawyer Prashant Bhushan (who is with the CJA) argues that the judiciary cannot become a law unto itself, accountable to none. “Independence of the judiciary means independence from the executive and the legislature but not independence from accountability,” says he, adding that the proposed National Judicial Council would not usher in real accountability of the judicial but only create an illusion of accountability.

This is not the first time the question of whether judges should be accountable only to other judges and no one else has been raised, nor will it be the last. The March 2003 report of the committee on reforms of the criminal justice system in India appointed by the Union Home Ministry had started with a quote from the French author and thinker Andre Gide that is worth recounting: “Everything has been said already but as no one listens, we must always begin again.”