In history, no one has the last word, but the former Arunachal Chief Minister Kalikho Pul's suicide note must at least be a kind of judicial full stop. The note is as you would expect a credible suicide note to be: a potent 60 page tale of misappropriation of public funds, political and judicial corruption at the highest level garnished with a heady dose of moral righteousness. It condemns the entire political process, admits to the author's wrongdoings, claims justification for them, and then blaming those who beat him at his own game of even greater moral depravity. It's an imaginative crafty piece of fiction, unless it's not.
To be fair, the tales of political corruption are neither new nor novel. Generally speaking, tales of judicial corruption in India are also not particular novel or new. The difference is that Pul accuses the judiciary of exchanging cash for judgments at its very apex. When three Chief Justices of the Supreme Court of India are accused of corruption, no matter how fanciful and unbelievable the claims, a nation has to be particularly perverse to be disinterested in what is said.
Let us look at some of Pul's 'judicial' material:
First, Pul claims that when the Guwahati High Court ordered a CBI probe against a former Arunachal Chief Minister, he paid the then Chief Justice of India Rs. 28 Crores to stay the operation of the order.
Second, Pul claims that this same former Chief Minister invented the PDS scam in the state. He starting a 'head load system' for delivery of PDS goods applicable even to areas accessible by vehicular traffic and thereby ballooned the budget from 16 lakhs to 168 crores overtime. This forced the Central Government to sit up and stop payments under the scheme. Pul claims that this Chief Minsiter then conspired with local contractors and financed their litigation in the Supreme Court against his own government (paying their lawyers 90 Crores in professional fees) and paid the Chief Justice of India Rs. 36 Crores through his son to hand down a decision in favour of the contractors, it being pre agreed that 50 per cent of the sum received under the judgment would go to him personally. Once handed down, this judgment allowed the former Chief Minister to distribute Rs. 600 Crores to the contractors.
This brings us to the third and final major allegation. This Nabam Tuki government lost a vote of confidence in the Assembly on December 16th, 2015. After a short spell of President's Rule, Pul formed a government on February 19, 2016, but the matter was bitterly contested before the Supreme Court. Pul claims that the son of a Chief Justice of India priced a favourable decision at Rs. 49 Crores. In turn, the brother of a companion judge concurrently priced a favourable decision at Rs. 37 crores.
It is not for me to canvass the possible authenticity of such information, nor do I presume to do so. People stick numbers to allegations all the time even if it's not Saturday evening in a smoky bar. Nevertheless, the real question is this: If the former Chief Minister of a state pens such allegations and then kills himself, are you going to pass it off as mere gossip? Furthermore, what do you make of subsequent events?
On February 17, 2017, the Chief Justice receives a letter from Pul's widow requesting permission to file an FIR based on the suicide note. The permission was neither given nor denied. Instead, the letter was treated as a PIL and listed before a relative 'junior' judge who had previously served with the Chief in a High Court. Soon thereafter, the widow's lawyer withdrew the case. This respected member of the bar is now vocally on record with his belief that an attempt was made to bury the case, forcing him to withdraw it. He says he is not done yet.
This drama has occurred in the backdrop of another happening story that has been all the rage for several months now. The esteemed Justice C.S. Karnan has provided endless entertainment to Madras High Court lawyers through exhibitions of erratic behaviour over the years. His outrageous antics culminated in a judgment in June 2016 ruling that "couples who had premarital sex are in law to be treated as married", making him the toast of social media. When the Madras High Court Chief Justice tried to restrain his worst excesses, he clothed himself in Dalit righteousness and claimed victimization, lobbing thunderbolts all around about corruption in the judiciary. The Supreme Court reacted by transferring him to Calcutta. He retaliated by suo motu assuming jurisdiction and passed orders restraining his own transfer! He later withdrew his order, proceeded to Calcutta, but then resumed his campaign of mass accusations against his brother judges. On January 23 this year, he wrote to the Prime Minister disclosing an "initial list of corrupt judges" against whom he demanded a CBI inquiry. Beside themselves with exasperation, a seven member bench of the Supreme Court issued a contempt notice inviting him to present himself and explain his conduct. Karnan first announced that he will defend himself in court, then ducked two successive hearings. On March 10, the court issued warrants and directed West Bengal's Director General of Police to personally escort this worthy judge to the Supreme Court at the next March 31 hearing. We wait with baited breath. Blowing in the wind is the 'crorepati' question: when removal of a judge is parliament's prerogative under its power of impeachment, where does the Supreme Court find room to import this concept of Contempt of Court by a sitting High Court Judge? This is going to take some figuring out.
No matter what you make of the specifics in either case, it is clear that nothing in India's constitution, or practice in our judicial system, arms us with a mechanism to deal with errant members of the higher judiciary. If we then throw in allegations of high corruption by three Chief Justices of India, we have a vexed problem to which much Talking-Head time can be devoted on prime time News TV without resolution. Whatever be the quiet burial status of Pul's suicide note, the fact is that we cannot now deny that the Indian judiciary is facing a deep crises and a deeper legislative void.
In this, India is not alone any more than corrupt judges are kryptonite. The world grapples with judicial corruption. In the main, it comes down to who judges the judges. Overwhelmingly, the "developed" world believes that it should be judges. Thus, UK has the Judicial Conduct Investigations Office (JCIO) constituted under the Constitutional Reform Act 2005. Similarly, the US has its own disciplinary bodies in its various constituent states. But these examples do not take us far because I am not aware of a case where a Lord Chief Justice of England and Wales, or the Chief Justice of the United States is accused of corruption. In the result, there are no definitive rules anywhere in the first world that have been put to good use. In the third world on the other hand, this occurred as recently as October 2016 when in pre-dawn raids, the Department of State Security (DSS) arrested members of the Supreme Court and High Court of Nigeria. The DSS is the Executive arm of government and President Muhammadu Buhari has been slated for reproducing acts reminiscent of his days as a military dictator. If we look for inspiration to handle the crises facing us, Africa may not be the best place to start.
The implications of these developments are all too clear. The judiciary has successfully battled the executive's vigorous attempts to wrest back control over the appointment of judges for years now, but not without great cost to itself. The stress and the ensuing logistic nightmare of delivering judgments in the absence of enough judges has reduced at least one Chief Justice to tears in the past. In the unlikely event that we really do have a compromised judiciary, deals will have to be made. The executive will wrest the initiative, including the right to appoint judges, and in the long run, our judiciary would lose something of both its strength and its moral authority. The judicial cheese has moved, and Pul may have been the man to achieve that, even if it was only posthumously.
The author is Managing Partner of the Gurgaon-based corporate law firm N South. His bestselling expose' of the real world of Indian courts "Legal Confidential", released in November 2015.