Accountability angels urging that the truth must come out and secrecy folks insisting that institutional integrity trumps the people’s right to know will have yet again a field day with the letter (publicly disclosed via media release) by the Chief Minister of Andhra Pradesh to the Chief Justice of India.
The secrecy folks always manage to prevail. Remember advocate Utsav Singh Bains who filed an affidavit that a certain disgruntled corporate hatched a big conspiracy since CJI Ranjan Gogoi had taken strict judicial action against the subversion of judicial independence? Remember that Justice A K Patnaik had submitted a sealed cover report to the Supreme Court in October 2019? One year down the road, are we the people, well-informed about the truth of the matter?
Undeterred, the Andhra Pradesh CM now attacks the “neutrality” of the high court and alleges a “nexus” between that court and some justices and the Chief Justice and Justice N V Ramana, due to become the 48th CJI when CJI S A Bobde retires on April 23, 2021. Never in the history of independent India has an incumbent chief minister written a missive to the CJI alleging such wrongdoing by a high court, alleging also that a senior-most judge of the Supreme Court has aided and abetted an enterprise to “destabilise and topple the democratically elected government of the state”. The letter also speaks of an “indelible trail” which leads “back to the overt and covert actions of Sri N Chandrababu Naidu through Honourable Sri Justice NV Ramana”.
The chief minister does not seek any specific constitutional remedy; he seems merely to surmise and suggest. Scurrilous, even if politically shrewd, suspicions do not constitute evidence which will hold up in a judicial forum. Would the CJI then be duty-bound or discretion-laden in yet ordering an in-house investigation on such a contumacious conduct?
The conduct is contumacious at least on three counts. First, the CM makes an allegation of “destabilising” his government against a senior justice of the Supreme Court of India without meeting the robust evidentiary threshold for prima facie enquiry. Second, he names some incumbent justices and the Chief Justice of the High Court as directly or indirectly giving judgments and orders at the instigation of Justice Ramana. Third, his principal advisor, Ajeya Kellam, releases the letter to the press, even before the CJI had an opportunity to examine the matter.
How may Chief Justice Bobde act? He may decide to direct the registrar to list the matter as manifest contempt — two very recent decisions of the Court have held that scandalisation of the Court is contumacious. Of course, the elite constitutional opinion demands that this power be exercised very rarely. Who/what should the CJI listen to?
The gravamen against Justice Ramana is that he was biased to act in favour of the ruling party because he was an additional advocate general when the Telugu Desam Party was in office. Many lawyers have adorned august constitutional positions of being high court (and later even the Supreme Court) justices because of their high legal experience. Did/do they then necessarily commit any judicial impropriety or are close to the executive to a point of complicity? The second allegation is that Justice Ramana has exercised remote control and influenced Bench formation in the Andhra High Court. But is there any hard prima facie evidence of such a conduct suggesting that the Master of the Roster allowed such things to happen? Third, Justice Chelameswar, in a 2016 internal note to the Collegium, now in the public domain, suggested that his colleague had shown “undue proximity” to the chief minister in endorsing six judicial elevations. In the event, however, it seems that the contrary view expressed by the Intelligence Bureau and the Collegium prevailed.
Can allegations about such misdoings further override the attorney-client privilege? The letter refers to the “gag” order and a stay of investigation passed by the Chief Justice of Andhra Pradesh High Court and Justice DVSS Somayajulu respectively on September 15 and 16, 2020, and alleges that the “beneficiary” of these orders is the TDP “of which Justice Ramana was a legal adviser and Additional Advocate General in the past…” However, the Apex Court has even in TADA cases quashed terror convictions in holding that intention and consequences are different things — intention has to be proved and one may not infer it by a study of the consequences of the act.
Already, Ashwini Kumar Upadhyay, a Supreme Court lawyer and BJP leader, has sought the statutorily required consent of the Attorney General K K Venugopal to initiate contempt proceedings against the chief minister and his principal advisor, Kellam, because “if this kind of precedent were allowed, political leaders would start making reckless allegations against judges who do not decide cases in their favour” and this would soon “spell the death knell of an independent judiciary”. One hopes that the learned AG will decide soon because the daily trial of cases against legislators would now commence.
Accountability angels may insist on a thorough probe into the allegation about lands in Amaravati purchased by two daughters of the learned justice before its designation as capital of the new state. The chief minister is confident that an enquiry will establish a “prior meeting of minds”, “meticulous round-tripping of transactions and the holdings”, and a “larger scam”. At its best, the Court may add its voice for an expeditious CBI investigation. But if the CJI decides on an in-house enquiry, the committee will have to act much before April 23, 2021, the date of his retirement.
Any delay may result in an inadvertent and unconstitutional supersession. One hopes that the Union Law Minister Ravi Shankar Prasad would reassure the nation that the supersession of justices is a thing of past and will never be allowed to raise its ugly and fierce mien again.
The writer is professor of law, University of Warwick,and former vice chancellor of Universities of South Gujarat and Delhi
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