Turning the Tide

Written by  //  September 12, 2011  //  Law & The Judiciary  //  5 Comments

I must have presented quite a sight.

Running full tilt past through the gates, past the barriers, the lawns and finally up the stairs towards the Chief Justice’s Court in the Supreme Court. Wearing my black robes, black coat and lawyer’s bands. Sweating profusely, even in the milder heat of March, huffing, puffing and gasping as my legs and lungs protested at the sudden exertion.

It wasn’t even because I was late for a hearing. It was past 10:30 in the morning, but hearings wouldn’t begin for a while because a judgment was to be delivered first thing in the morning. It wasn’t just a judgment, it was the judgment. A most anticipated and eagerly awaited judgment.

The CVC case.

********

2011 will probably go down in the history books as the year of the mega scams. Or more precisely, the year when the mega scams of Governments, State and Centre came to light and a pitched battle was fought over the future of governance in India.

Yet, Anna Hazare, the Lok Pal and fastsuntodeath were still a month away on that warm day in March

What had gripped the nation was the appointment saga of PJ Thomas as the Chief Vigilance Commissioner by the Government, overriding the objections of the Leader of Opposition on the appointment panel and ignoring the pending chargesheet in the Palmolein Case.

As the skeletons from Thomas’ cupboard started falling out, the Government was in a bind. Should it accept responsibility, annul the appointment and admit a mistake? Or brazen it out in the hope that it will all die down quickly and no one will notice that the head of a Government anti-corruption agency is charged with having aided and abetted corruption.

If you know a thing or two about Governments, you will know which course they took.

Of course the appointment was challenged in the Supreme Court. That relentless crusader/charger-at-windmills — sometimes both on the same day — Prashant Bhushan invoked Article 32 and challenged the appointment in the Supreme Court.

The legal case against Thomas was cut and dried. The CVC was created to tackle corruption. To appoint a man facing corruption charges flew in the face of 150 years of administrative law laid down repeatedly by Courts. Any lingering doubts about the illegality of the appointment would be removed on a plain reading of the Vineet Narain judgment. The Government’s case was about as airtight as a colander.

And yet, and yet.

So many times before, the Supreme Court, when given this opportunity to strike a firm blow for citizen’s rights and against governmental corruption had faltered. Most notorious perhaps were the ADM Jabalpur and the PV Narasimha Rao cases. Of more recent vintage, the Lalu Prasad Yadav case.

Recent history didn’t bode well for this case either.

Prashant Bhushan was still facing contempt charges for having accused Justice Kapadia (as he then was) of “financial corruption”, though he has since attested to Kapadia’s integrity and accepted that the accusation was incorrect. They probably didn’t exchange very cordial New Year’s Greetings.

Kapadia himself had made his skepticism of PILs loud and clear. Costs had been imposed ruthlessly, and intolerance for roving PILs grew.

What would happen to this PIL when Bhushan was arguing before the Chief?

The legal case was crystal clear, but would the Supreme Court interfere all the same?

*********

We got the answer that 3rd of March, 2011.

I thought I had missed the judgment, but when I walked in, the Chief was still reading out the main arguments. Then he discussed the cases cited. The tension rose in the courtroom. He was drawing the distinction between “judicial review” and “merit review”.

The Vineet Narain case. The facts against Thomas.

Then comes the kicker we’re all waiting for.

“..the institution is more important than individuals…”

Oh yes! No wait… wait a second.

“For the above reasons, it is declared that the recommendation made by the HPC on 3rd September, 2010 is non-est in law.” (a pause and an aside) “that is void and non existent in the eyes of law”.

Oh Hell yeah! Kapadia’s put this one in the stands!

There’s a sigh of relief that goes around the courtroom. A senior counsel shakes his head in admiration. “Fantastic judgment” he mutters.

He’s setting out guidelines now, but the main deed’s been done.

I can distinctly remember feeling euphoric as I walked out of the Chief’s Court that day.

****

It is easy to be cynical when it comes to corruption. The range of responses runs from “if I don’t do it, someone will” to “Nothing happens without corruption in India” – all encompassing cop outs for personal non-action.

Let’s be clear about this: the institutional nature of corruption notwithstanding, there is always scope for individual action. Ultimately, it is a matter of choice. One chooses to take the bribe. One chooses to offer a bribe. One chooses to look away instead of acting against either bribe giver or taker.

When someone claims “they had no choice”, what they mean to say is, “I don’t want to face the consequences of not giving a bribe.”

It is what Prime Minister Manmohan Singh means when he says “coalition compulsions”.

History will judge PM Singh much more harshly in light of Kapadia’s judgment.

The underlying premise of Kapadia’s judgment is clear; it is no use calling yourself “clean” or “honest” if you are unable or unwilling to defend an institution from corruption. A man accused of (even if ultimately found innocent of) corruption will have neither the credibility nor the authority to function as the head of anti-corruption body. Likewise, Kapadia also seems to be saying (though obviously not in so many words, but the import is clear), anyone who claims to be personally honest is not fit to hold a position of authority or power within an institution if he is not able to stop corruption therein.

Personal action against corruption comes with its consequences. Not all of them benign. From conscientious officers whose lives and careers are shredded by their superiors for not looking away to the RTI activists who are routinely murdered for asking inconvenient questions, fighting corruption is a dangerous affair.

A high Constitutional functionary is not entirely immune to consequences either. It is hard to imagine Justice Kapadia having won too many admirers within the Government for his strong and uncompromising stand against corruption. A post-judicial appointment to a plum and prestigious position, the pot-of-gold at the end of the Supreme Court rainbow for many judges, is unlikely to be offered to him by the ruling dispensation.

The choice before Kapadia was clear, just as it was to Manmohan Singh. Kapadia made his choice. So did Manmohan Singh.

History will judge one far more kindly than it will the other.

5 Comments on "Turning the Tide"

  1. Babubhai Vaghela Ahmedabad India 9427608632 September 12, 2011 at 10:32 am ·

    While the Bench comprising CJI declared CVC Thomas appointment as Non Est, the Bench made no observation on Opposition Leader only making unreasoned objection – I do not agree – and nothing further. Further, Bench agreeing to irregularity and declaring the CVC appointment as illegal, did not punish the Committee that decided that appointment. I have requested CJI to punish. Not received any response.

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