March 28, 2020
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Gentle Ways Of Coercion

Justice Verma's disclosure that a 'gentleman' wants him to back off from the case creates a stir

Gentle Ways Of Coercion
Judge not, that ye be not judged. For with what judgement ye judge, ye shall be judged. —Jesus of Nazareth (The Sermon on the Mount)

THE forthright and statesmanly Chief Justice Jagdish Sharan Verma doesn't usually drop bombshells. But when he disclosed in an open court last week that a particular "gentleman" had been trying to put pressure on three judges—including himself—to withdraw from the hawala case, he created a lot more than a flutter.

A stunned nation wanted to know who the 'gentleman' was? And why contempt proceedings were not being initiated against him. Newspaper editorials cried in chorus that the chief justice owed it to the people to answer the questions.

There is something rotten in the State of Denmark, Justice Verma had said after he took over the case. But this is probably the first time a chief justice has disclosed that a bench (comprising Justices Verma, S.C. Sen and S.P. Bharucha) was under "pressure" to withdraw from a case. The revelation was even more shocking since it came from a judge who almost single handedly cracked the whip and forced the CBI, which had been sitting over the hawala case for more than two years, to investigate and file chargesheets against senior politicians.

Detailing the sequence of events, Verma admitted that he was under pressure ever since the bench began monitoring the progress of the hawala probe. "Efforts are on by some people that we recuse ourselves from the case. There is this gentleman who has been trying his best to meet me and has failed. But now I am shocked to hear from Justice Sen that someone has managed to meet him".

The mysterious "gentleman", according to Verma, was the same person who called on Justice Sen and attempted to meet Justice Bharucha two days before the hearing on July 14. Verma was equally shocked to see "some of the person(s) behind such efforts" in the court. "Some people present in the courtroom may be connected with these activities." Although Verma did not name anyone, the first reaction came from the government, denying any involvement. Union Law Minister Ramakant Khalap hastily clarified that there was no pressure from the government. Information and Broadcasting Minister Jaipal Reddy followed suit, saying that nobody from the government ever contacted any Supreme Court judge "directly or indirectly".

Given the delicate hawala probe, Verma chose to hear the case mostly in-camera. His hard-hitting verdicts spanked the otherwise lackadaisical CBI into action and his candid observations about political bigwigs made headlines. It is difficult to believe that Verma, one of the prime movers of the 'judicial activism' phase, is under pressure. His occasional remarks—like "be you ever so high, the law is above you"—had assured everybody that the court could not be influenced.

But with this incident it has become clear that despite the high court's refusal to accept the infamous Jain diaries as evidence; despite the fact that some of the accused—including BJP president L.K. Advani, Congress leaders V.C. Shukla, Arjun Singh and N.D. Tiwari—have been discharged in the case, a host of politicians are still worried. The fact that they are trying to "reach and influence" the judges is a pointer to their nervousness. It is important to know that the alleged recipients of the hawala monies have only been discharged and not acquitted. Which means all of them can be recharged as and when fresh evidence comes up. The real fear is that under Verma's tutelage, the three-judge bench will keep prodding the CBI to investigate for fresh corroborative evidence.

EVEN though the CBI's special leave petition (SLP) filed in the Supreme Court is being heard by a different bench, those whose names have been dragged into the hawala dragnet are wary that their troubles would last as long as the bench headed by Verma is monitoring the case. In what must be utterly disappointing news for "the gentleman", Verma has reiterated "the case is with us and we will deal with it the way it should be dealt with". A section of the judiciary feels that this attempt to "influence" the judges could be part of a design to force them to back off voluntarily from the case on ethical grounds.

Meanwhile, there is intense pressure on Verma to disclose the name of the "gentleman" and start legal proceedings against him. Opinions are divided over whether contempt proceedings should be initiated against the person. Some retired judges believe that contempt proceedings are a prerogative of the bench, and that in this particular case, contempt notices must definitely be issued.

Justice P.B. Sawant, retired Supreme Court judge and chairman of the Press Council, feels that now that Verma has gone public, he should take action. Says Sawant: "The court owes a duty to itself and society to take action once they made it public, or they should have kept quiet and continued hearing the case." According to Sawant, by not taking action the needle of suspicion points blindly towards everybody who matters, which is not desirable. This leaves room for speculation that the judges are not taking action because the person is powerful. And if the decision goes against one particular party, then you permit people to say that the judges were biased.

But there is no hard and fast rule vis-a-vis contempt of court. Approaching a judge to influence a case is highly objectionable and it seems to cry out for legal action. But then, says senior Supreme Court advocate Rajeev Dhavan: "The contempt jurisdiction is delicate—used too often it will become too trivial, used too little it will result in undermining people's faith in the judiciary and permit them to take liberty with it". Dhavan, for one, is in favour of contempt proceedings but he says the timing should be left to Verma.

The judiciary, especially in the West, is flexible towards contempt jurisdiction. In the US and the UK, judges have started avoiding contempt proceedings. Judges in England feel that the people's faith in the judiciary is more important. Noted human rights activist and retired judge V.M. Tarkunde says "the judiciary should interfere only if the person is important, otherwise they should ignore it." But V.K. Ohri, a lawyer associated with the hawala case, says that the judges have taken it as a threat. "Instead of taking proper action, the chief justice informed the whole country through the media. This means that the threat was significant. Therefore, the culprit must be brought to book."

Retired Supreme Court Justice V.R. Krishna Iyer says that the law of contempt does not mean the court should use it for every case. He recalls a personal incident: once someone called him up and threatened that "your wife is going to be a widow tomorrow". Of course, "it did not happen as my wife was no more." Interestingly, Vineet Narayan, one of the four petitioners in the hawala PIL, went around town distributing copies of a letter written by him to the chief justice in which he had alleged that a US-based NRI, Dr Bansal, had been trying to "handle one sig-nificant authority". Narayan does not specify who the authority was. He has also accused the other three co-petitioners of "damaging the cause".

Speculation abounds about the mysterious "gentleman". Verma's hint that "some people present in the courtroom may be connected with these activities" has fuelled rumours about the person in question being a top politician, a well-connected wheeler-dealer or a member of the judiciary itself. The name of a leader of a one-man party is also being bandied about. For, he happened to be present in the courtroom when Verma made his sensational disclosure.

The theories do not end there. A former attorney general, known to be very close to a former Union law minister, is also on the suspect list. But nobody seems to be aware of the real identity of the "gentleman". Perhaps nobody will unless the judges spill the beans.

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