March 31, 2020
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Unsettling The Bench

A pattern of abrupt transfers allegedly by the law minister lies behind the Shivappa furore

Unsettling The Bench
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"There is no office which is infinitely powerful and at the same time so frightfully defenceless as that of a judge."
-Justice C. Shivappa in 1994, when he became a judge of the Madras High Court.

THE man of the law couldn't have guessed that his own words would return to him with such prophetic resonance. On March 4 this year, Justice Shivappa was hearing cases in court when he received a fax from Union law minister M. Thambidurai, informing him that his services had come to an end on December 11, 1998. The ostensible reason was that he had incorrectly declared his age; but lawyers and legal experts allege that the move reeks of political vendetta. Says N.G.R. Prasad, convenor, Lawyers against Corruption, a Chennai-based group: "Right from the day Thambidurai was sworn in, he has interfered with the judiciary's functioning in a blatant manner."

On March 18, 1998, M. Thambidurai became only the second law minister in independent India to be sworn in despite the lack of a legal background-the first was Subramanian Swamy, who held the portfolio in Chandrashekhar's government. The very next day, Thambidurai made his agenda clear when he declared that all the cases against Tamil Nadu CM J. Jayalalitha had been foisted by her political rivals.

Jayalalitha came to Delhi to attend the co-ordination committee meeting on April 1; she returned to Chennai armed with letters appointing 33 AIADMK lawyers as Union government advocates. Bypassing convention, the appointment letters were not given out by the law office; instead, they were distributed from her Poes Garden residence.

Says R. Vaigai, a leading advocate in the Chennai High Court: "It is unheard of that the defendant should decide on the prosecutor. By appointing her own men as her prosecutors, she has violated the independence of the judiciary as laid out by the apex court in Vineet Narain's Jain-hawala case." A group of advocates have challenged these appointments in the Madras High Court.

An equally controversial move was coming up from Thambidurai: the promotion and transfer of Justice Raju as the chief justice of Himachal Pradesh. The first bench of the Chennai High Court, consisting of Chief Justice Liberhan and Justice Raju, had heard the petition filed by Jayalalitha challenging the constitution of the special courts in order to try cases against her and her aides. The bench was preparing to deliver its judgement when Justice Raju was transferred, forcing the case to be heard from scratch. Chief Justice Liberhan was also about to be shifted to Guwahati-a move stalled by a storm of protest from the bar. Justice Liberhan and Justice Padmanaban did finally uphold the constitution of the special courts; Justice Liberhan was transferred to Andhra Pradesh soon after.

Next on the block was Abdul Razack, judicial member, Income Tax Administrative Tribunal (itat), who was abruptly transferred to Guwahati on September 22, 1998. Challenging his transfer in the Andhra Pradesh High Court, he alleges that Thambidurai pressured him to grant a stay in the income tax cases (to the tune of Rs 200 crore) pertaining to Sasikala's nephew V. Bhaskaran. He says: "On September 22, Thambidurai, in Chennai to inaugurate the new premises of the tribunal, told me that he was transferring accounts member, Shankar, from Ahmedabad to Chennai and that I should form a bench with Shankar and grant stays in the cases concerning Jayalalitha and her aides."

When Razack refused to oblige, Thambidurai bared his teeth. Says Razack: "Thambidurai summoned the president and the registrar of itat to Alvin Guest House in Mumbai on September 3 and asked them to transfer me from Chennai as punishment. On September 22, I was shunted out to Guwahati. Mohan Rajan, who joined the Jabalpur bench only in March 1998, was transferred as judicial member to Chennai. And though there was no vacancy for an accountant member, Shankar was transferred from Ahmedabad to Chennai."

The central government's sudden volte-face on the special courts case also bears the Thambidurai stamp-the notification that the cases would be shifted from the three special courts to other regular courts was publicised from the AIADMK head office.

But the main course was the termination of Justice Shivappa's tenure. Singre Gowda, who filed a pil in the Supreme Court in the days of the UF government questioning Shivappa's age, apparently does not exist. His pil was rejected and his complaint sent to the then law minister, Ramakant Khalap. Shivappa points out that he became a high court judge in 1991, when his date of birth, given as December 11, 1938, was accepted by the President after the usual vigilance enquiry. "I will be happy even if the President decides against me after allowing me to present my case with documentary evidence. What hurts me is that I've not been given a chance to put forth my points, " says Shivappa.

It is highly possible that Shivappa was targeted for political reasons. It was he who rejected Jayalalitha's bail application after her arrest. In over 19 cases, he had delivered judgments against the AIADMK leader and her aides. Significantly, a division bench of the Chennai High Court, consisting of Justice Shivappa and Justice Kanagaraj, had been hearing a petition against sand quarrying in Karur-Thambidurai's constituency. The hearing was to be completed on the day that Shivappa's services were terminated.

The petition in the quarrying case questions the validity of a government order passed by the AIADMK government (G.O.Ms. No. 97 Industries dated 8.3.93); and states that the quarrying is done by R.K. Ramaswamy, who is related to the law minister. Lawyers argue that by terminating Justice Shivappa's services, Thambidurai misused his office not just to defend the earlier AIADMK regime but also to protect his vested interests in Karur.

Meanwhile, Thambidurai is busy. Now that several judges have been transferred out of Chennai, the vacancies are being filled with judges appointed during the AIADMK regime and subsequently transferred to other high courts. Justice Shanmugham and Justice Dinakar, both sworn in recently as judges of the Chennai High Court, are on transfer from neighbouring states. It may, of course, be purely coincidental that Justice Shanmugham was once the special government pleader for the AIADMK.

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