The former Chief Justice of India (CJI) Altamas Kabir, who retired last week, has lashed out at the Times of India and the Indian Express for their critical reports of Kabir, purporting to explain in a six-page press release what actually went on behind the scenes.
He wrote:
“Just before I was to demit office as the Chief Justice of India, certain reports began to appear in the Times of India and the Indian Express, which were clearly intended to lower my image before the public.”
“I have nothing against responsible reporting of facts in their totality, but I certainly object to canards, masquerading as news, being published in newspapers to deliberately malign an individual. Ordinarily, I would have ignored the barbs and innuendos, but when people close to me begin to ask questions, I have no option but to put the records straight. People who have read the said articles immediately commented about the timing of the publication of such articles.”
The allegations
Kabir proceeded to summarise the charges reported by the press, notably that the “Gujarat Chief Justice had been denied a berth in the Supreme Court on account of my personal bias towards him because of his objections to my sister’s elevation as a Judge of the Calcutta High Court”.
The Indian Express had reported on 12 July that the Gujarat high court chief justice Bhaskar Bhattacharya had lashed out at Kabir in a letter alleging the above.
Second, he wrote that “attempts purported to have been made by me to elevate a Judge of the High Court to the Supreme Court at a meeting of the Collegium on 2nd July, 2013, just a fortnight prior to my retirement.”
The Times of India had reported on 19 July that Kabir had accused the other collegium members of “ganging up” on him. The article did not cite any sources or carry a reporter’s byline.
Finally he said that he was criticised for “an order passed by the Bench presided over by me extending the time given by another Bench for deposit of installments in the Sahara case”.
The messengers
“The charge was led by two experienced journalists, one from the Times of India and the other from the Indian Express, for reasons which I am yet to fathom, but the timing was certainly perfect.
“As far as the first ‘story’ is concerned, the screaming headlines on the front page of the Indian Express made sensational reading, but it also betrayed complete ignorance as to how the Collegium system functions.”
Kabir explains collegium
Kabir said he would explain what “transpired at the Collegium meeting… to put the records straight”, noting that the collegium consisted of the five senior-most judges who took collective decisions, which were usually unanimous and can be vetoed by any two nay-votes.
“Various factors” would be taken into account before nomination other than just “profound knowledge” of law.
But while the collegium was in fact unanimous, claimed Kabir, the press reports made it look as though it was Kabir’s “individual bias” which prevented the Gujarat Chief Justice’s elevation.
Kabir explains alleged late elevation
“Dishonesty in reporting news is amply evident from the newspaper report, which does not disclose even one-fourth of the truth,” said Kabir about, presumably, the Express story.
In fact, Kabir said he had attempted to make sure that a Supreme Court judge from Madhya Pradesh – of whom there were none on the bench since August 2012 - would be appointed, with the process having begun long before he was due to retire.
During his “tenure, which was interrupted by almost three months of vacations, I was able to fill up most of the vacancies in the High Courts and seven vacancies in the Supreme Court, but my attempts to give representation to Madhya Pradesh remained unfruitful”, said Kabir.
“An impression had been given that it was only on 2 July 2013 that I had suggested the name of the person concerned, a fortnight before I was to retire. That is a classic example of less than half truth in action. The process began soon after I assumed the office [… in October 2012] but I deferred on one pretext or the other.”
He suggested the name again on 1 May 2013 but one member of the collegium “shot down” the suggestion, as he “wanted to find out about the background of the Judge concerned”, wrote Kabir. The collegium, but not Kabir, suggested taking the matter up again on 2 July after the summer vacations, knowing full well that Kabir would only have two weeks left on the bench, said the former CJI. When the collegium then reconvened it did not want to confirm any more judges, including additional judges.
“I leave it to the readers to draw their own conclusions in this matter,” closed Kabir.
Kabir explains Sahara
In respect of his Sahara judgment, in which he went against another Supreme Court bench in giving the Sahara Group additional time to pay its Rs 24,000 crore fine, Kabir wrote:
In this matter we were faced with a situation, where there were a large number of depositors who had not been paid their dues. Since the matter had already been disposed of with a direction for payment of dues in installments and since one installment had already been deposited by Sahara and they only wanted extension of time to deposit the second installment, we felt it to be in the interest of the depositors, to extend the time for depositing the installments by a short period, as that would give them a chance to recover their dues quickly instead of having to wait till SEBI attached and sold the properties of Sahara which could turn out to be a long drawn affair. The decision to extend the time for depositing the installments was the joint decision of the Bench upon consultation.
The attempts of some people, including some of the advocates who claimed to have appeared in the matter, to assign an ill-motive in granting such extension, again discloses the mind-set of journalists who base their articles on innuendos in order to make out a ‘story’ to bolster their reputation as investigative journalists.”
Kabir hopeful of publication in entirety
Kabir concluded his letter with the hope, “in the interest of responsible journalism”, that his six-page letter would be published in its entirety “at a place in the newspapers where it would be visible to readers in the same manner in which the screaming headlines were printed, both in the Indian Express and in the Times of India.”
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I believe we must respect the institution of the CJI. However, we all know how influential judges are and how there is rarely any smoke without fire. Don't lose sight of the fact that many judges use their position and indulge in nepotism and that affects not only lawyers, but also litigants and the public at large. This is not a comment targetted at any judge, but a general observation. See this story "Relatives of 9 judges appointed law officers" - www.tribuneindia.com/2013/20130708/main5.htm.
I agree with you that the collegium system is perhaps flawed... but what is the answer to it? If we revert back to the earlier system where the government made all the appointments, we all saw what happened during the emergency period.. and how the government used its appointed judges to do its bidding... it was one of the darkest eras of the indian judiciary.. we need a better answer.. where the judiciary's independence is maintained without government nepotism...
We do not know if he recused himself. But even if he did it does not solve the issue of apparent bias. While such things happen in every HC, a CJI should set an example. Unless his sister and son were so outstanding and well known in their own right (which they most certainly are not), Mr. Kabir could have at the least deferred their appointment till he had retired.
Imagine the VC of an NLU chairs a "collegium" of profs who all report to him and this collegium which selects students for admission based on merit. Now suppose the VC's son and sister get selected and the VC claims he "recused" himself. Does this not smack of nepotism? Onus would then be on VC to show his sister, son etc. are so deserving and so special that they made it on merit. In altamas kabir case there is no transparency, no official recusing and no justification.
Besides his sister was appointed 3 or 4 years ago, when Balakrishna or Kapadia headed the collegium, or were certainly a part of the collegium. You wanna start mud-slinging at the highest judiciary of our country? Go ahead, start including their names as well. After all they were the ones who sat in judgment over the sisters application, because Kabir (giving him the benefit of doubt) had recused himself.
Your VC example falls through, because Kabir was not the VC when his sister was appointed. He was a rookie professor. And what I don't understand is if his sister's appointment was such a big deal, why did the media and every one of you hurling accusations at him now, sit quiet over it all these years, when it was clearly within public knowledge?
The timing of all these accusations and allegations clearly highlight a malicious intent to ruin his image.
- He hasn't denied that his sister earned merely Rs. 88,000/- per annum from her legal practice and she was 59 years old when she was considered for appointment as High Court judge
- It is being said that as a member of the collegium that considered her candidature, Justice Bhaskar Bhattacharya had pointed out these things in writing and had strongly objected to her appointment on these grounds
- As CJI, he broke tradition and wrote a letter that was critical of 3 well regarded judges, including Justice Bhattacharya, and it did not befit someone of his stature or do any good to the image of the judiciary
- He also passed orders that the present CJI is now criticizing: ibnlive.in.com/news/cji-sathasivam-criticises-orders-passed-by-excji-altamas-kabir/409262-3.html
- He undermined other benches of the SC and thereby, the judicial system
- And the cherry on the cake is the irregular appointment of his son: chandragupta-acharya.blogspot.in/2011/08/is-government-now-trying-to-buy.html
What do you say to all this? Hogwash? It smells like a ton of rotten eggs and disgusts a lot of people. Therefore I say, don't be naive.
My problem is not any person in particular, but stories like "Relatives of 9 judges appointed law officers" - www.tribuneindia.com/2013/20130708/main5.htm and stories reporting orders that should not have been passed. It is unfair to everyone. And we must not accept it as fait accompli. Thoughts?
- It may be a fact that his sister earned so little and was well beyond the average age of appointed judges. (It isn't a proven fact, but for the sake of argument let us assume it to be true). Her name was nevertheless recommended by the Calcutta HC collegium.. which would've comprised of a Chief Justice (from another State, not Calcutta itself) and 2 or 4 of the senior most judges of the HC. In Bhattacharya's letter he has said he raised all these objections when her name was being considered, but eventually conceded to her name being recommended. (for reasons best known to him). What does this say of the man? That he has grievances with a system only when it goes against him? Sour grapes don't you think? And once her name would have been recommended by the Calcutta HC, the SC collegium would've considered it (which would've comprised of the 5 senior-most judges then, including Kapadia/Balakrishna/Bhandari etc). The IB report would've been conducted. The respective state and central governments would've considered it, before the President would have issued the warrant for her appointment. I think we have to stop kidding ourselves that Kabir is/was that influential that he could influence so many facets of the system. Come on, this is getting far-fetched now.
- Which letter are you talking about? The one that was written to the President or his reply to Bhattacharya's letter? I need to know which one and what its contents are before I can comment upon it.
- The orders that the present CJI is criticizing, were orders which the Kabir court would've passed anyway too. On the last occasion when the Jayprakash Associates case had come up before Kabir's bench, a last warning was given to them to pay up the amount and Kabir had warned that failure to do so would result in the stay being revoked and the time extension lapsing. (I know this because I was present in court then). But of course the media needs to sensationalize everything, so we have blaring headlines that read "CJI slams Ex-CJI's order", giving fodder to all the gossip mills.
I agree with you that the system in general may need an over-haul. But to blame one individual all of a sudden and attempt to malign his reputation, which has otherwise been spotless, is very unfair. Kabir is a judge I have great respect for, and it saddens me to see such attempts being made against him, especially after he has demitted office.
The article on relatives of judges says enough about the loop-holes in the system (if you've noticed Kabir's name isn't on that list). But really what then is the answer? Revert back to the pre-emergency system which was also such an obvious failure? Or chalk out a new system altogether? With limited government interference and SC autonomy? The JAC certainly seems like a wafer-thin answer for now, and may cave in as surely and perhaps even more swiftly than the collegium system.
I agree with you that a person should not be made to suffer because of the media, that Justice Bhattacharya may have spoken up when it suited him because of sour-grapes-syndrome, etc. However, I think you are missing some points I am trying to make or making statements that beat logic.
For one, there is no need to “assume” that Justice Shukla Kabir was considered for elevation at an unusual age because her age at the time of elevation is a known fact.
My point is, in our current state of affairs, any irregular appointment raises questions about the influence someone may have exerted on the appointment. Speaking of influence, bail is denied when an accused is felt to be powerful enough to influence tons of independent bodies, and even then they have influence from behind bars. Thus, who can influence how many people, including from behind the scenes, is anybody’s guess. Tons of checks and balances will break down in a country like ours where jugaad is prevalent. This is a general statement, which isn't directed at anyone in particular. I agree with you that all the hue and cry may all be conjecture, or may be farfetched. But what about chandragupta-acharya.blogspot.in/2011/08/is-government-now-trying-to-buy.html, which I had in mind when I referred the other story alleging nepotism by judges. One incident is easy to overlook, but two?
Anyway, this is not about CJI Kabir v. Justice Bhattacharya, so defending one at the cost of another is of no use. Personally, I would like to respect the judiciary as a lawyer, but we all have reasons to feel frustrated. I have no vendetta or ill-feelings towards our ex CJI, who may be a good man in many ways. I am only lamenting the collective stories on the various instances of nepotism and uncle justice, and the taste of bile that I experience when I smell rotten eggs, although nothing can be proved as the powerful will either not get caught red-handed or usually get away with it if caught.
I am not suggesting any answer to the collegium system because it is an age old question of who will guard the guards. If people had integrity and some shame, the collegium system would have been good enough. Sadly, we appear to be a shameless society, especially when it comes to the affluent class.
I am only lamenting the state of affairs without any particular reference to any individual. We are both on the same boat, regardless of our love for the ex-CJI. The silver lining, if you like, is that he will get another government job regardless of the hue and cry. And lawyers will keep getting uncle justice and nice appointments and meritorious lawyers will keep struggling. It doesn't help the country. In the US, more often than not, if a question can be raised about a person in a high office, they are not promoted or get sacked. Here, even if something is evident or gets proved, nothing happens to the guilty, more often than not.
Kabir has the guts, the integrity, the hammer, tong, scissors, hankerchief, etc. etc. to do what? To leak judgments to the press on the eve of his retirement ? To appoint his sister and son to public offices with zero qualification? To supress those who criticise him? Please read Mr Gopal Subramaniam's article.
That would be Gopal Sankarnarayan and not Gopal Subramaniam unless Senior GS too had something to say.
And how about you revisit that article once and bother to read all the comments there? I think all your prejudices against Kabir will be answered there. I frankly don't have the patience to reply to all your accusations of him, especially since the issue has now been appropriately addressed.
And first, you all hurl allegations at Kabir saying he is keeping silent which means he is guilty. Then when he bothers to release a press statement, now that makes him guilty because he bothered to clarify. Excellent reasoning, keep it up.
It may not be the best reasoning but its better than your counter. Justice Kania was in no position to even appear to influence the 23rd Justice Kania's appointment to the bench. Fali Nariman was not law minister or AG when his son became ASG or SG. Had this happened I would say that is also reprehensible. A holder of high office should not subject himself to the perception that he is biased. In Nehru's time Lal Bahadur Shastriji forced his nephew to quit a sarkari job rather than give an image that his familial connections got him the job. Suggest you read more about natural justice and administrative law.
I am not hurling anything at Kabir. Just pointing out that by permitting his own sister and son to be appointed to public offices by a bureaucracy of which he is in a position to significantly influence (even assuming they are qualified which the evidence suggests they are not) he has demonstrated very poor judgment at best and plain nepotism at worst.
Uncle judge, brother judge, sister judge, all no better than uncle partner. Why blame poor lil ol Cyril and Shardul then?
The best lawyers of this country don't earn Rs. 88,000/- per annum from their law practice. Can you point out exactly what made Kabir's sister and son outstanding other than the fact that they were related to Kabir?
Just that you are not a thief until you are caught
(a) his sister earned merely Rs. 88,000/- per annum from her legal practice and
(b) she was 59 years old when she was considered for appointment as High Court judge.
As a member of the collegium that considered her candidature, Justice Bhaskar Bhattacharya had pointed out these things in writing and had strongly objected to her appointment on these grounds. Yet, he was overruled due to Kabir's influence. So what if Kabir had recused himself from the collegium?
Kabir's press release does not address facts.
Actually it is very possible and happens everywhere. Army Chief shuffles around Lt Gens at whim despite such transfers apparently requiring Defence Secy's approval also. Bank boards are domnated by the chairman who gets his way despite other board members. Governing Councils of NLUs are usually following the line the VC sets. In a rigid bureaucracy like ours a CJI does not need any 'consensus' to get his way. Sorry if the truth hurts.
All of this, the articles online, the news, our comments, everything fundamentally reflects one single thought. A deep distrust of our public institutions and the figures who lead them. Not all of this apprehension is unfounded. It does, however, often spill over in the form of random accusations, aimless mudslinging and skyward, directionless finger-pointing. Almost always on very slender foundation.
The retirement of judges, particularly Chief Justices, seems to evoke an unusually caustic public penmanship that remains hidden in its shell till the chosen day arrives. I wonder what makes this day, or retiring in general, so special. Perhaps we feel safe in venting our pique against public figures at that precise moment of retirement.
The MCI judgment is a classic example. People have grievances, yes. Many are frustrated at the way our institutions function, yes. But to say that the court, or its judges, should turn a blind eye to the law and the constitution and base their judgment on how they, or others at large 'feel' about the manner in which things exist would lead to appalling consequences for us all. Judgments are not based on feelings, but on sound reasoning and precedent. The MCI bench followed a defined manner of judicial decision making- appreciating and applying the law as interpreted by larger benches and following the zealously guarded constitutional mandate of protection of minority rights. There is an established procedure of review and curative petitions, should the parties opine that a judgment contains a patent error in law. Capitation is wrong, we all agree. But there are systems and forums to deal with that if it is established to be true. To all who think this judgment, or any for that matter, is 'wrong', or erroneous, I would only say, please read it first. And also what it relies on to reach the conclusion it has. Many of the answers we seek lie hidden within the judgment itself.
Every allegation needs to be backed by evidence to be considered worthwhile. Sadly, none of the articles we have had the benefit of reading contain any of that. For example, to state that 'dalals' have returned, assumes three things- that they were always there previously, that they 'disappeared' at some point, and 'reappeared' now. All of these assumptions stand without any ground at all, and appear misconstrued. Any allegation, big or small, is noteworthy only when it gains strength of fact. I see none.
Justice Kabir's tenure can hardly be called long. In that time, he has done several notable things. The court functioned at its highest ever strength, a special bench was formed to look into crimes against women. In my opinion, he was patient, polite and in all his writings and demeanour, quite balanced. He responded to allegations as he thought fit, and we say that those are not enough. Perhaps so. But how many times in the history of our court has such a thing happened at all?
Much around us is imperfect. And much more needs to be corrected. There are systems, and their failings ought to be addressed. I only hope we take a more suggestive and participative route in the democratic process.
All of this, the articles online, the news, our comments, everything fundamentally reflects one single thought. A deep distrust of our public institutions and the figures who lead them. Not all of this apprehension is unfounded. It does, however, often spill over in the form of random accusations, aimless mudslinging and skyward, directionless finger-pointing. Almost always on very slender foundation.
The retirement of judges, particularly Chief Justices, seems to evoke an unusually caustic public penmanship that remains hidden in its shell till the chosen day arrives. I wonder what makes this day, or retiring in general, so special. Perhaps we feel safe in venting our pique against public figures at that precise moment of retirement.
The MCI judgment is a classic example. People have grievances, yes. Many are frustrated at the way our institutions function, yes. But to say that the court, or its judges, should turn a blind eye to the law and the constitution and base their judgment on how they, or others at large 'feel' about the manner in which things exist would lead to appalling consequences for us all. Judgments are not based on feelings, but on sound reasoning and precedent. The MCI bench followed a defined manner of judicial decision making- appreciating and applying the law as interpreted by larger benches and following the zealously guarded constitutional mandate of protection of minority rights. There is an established procedure of review and curative petitions, should the parties opine that a judgment contains a patent error in law. Capitation is wrong, we all agree. But there are systems and forums to deal with that if it is established to be true. To all who think this judgment, or any for that matter, is 'wrong', or erroneous, I would only say, please read it first. And also what it relies on to reach the conclusion it has. Many of the answers we seek lie hidden within the judgment itself.
Every allegation needs to be backed by evidence to be considered worthwhile. Sadly, none of the articles we have had the benefit of reading contain any of that. For example, to state that 'dalals' have returned, assumes three things- that they were always there previously, that they 'disappeared' at some point, and 'reappeared' now. All of these assumptions stand without any ground at all, and appear misconstrued. Any allegation, big or small, is noteworthy only when it gains strength of fact. I see none.
Justice Kabir's tenure can hardly be called long. In that time, he has done several notable things. The court functioned at its highest ever strength, a special bench was formed to look into crimes against women. In my opinion, he was patient, polite and in all his writings and demeanour, quite balanced. He responded to allegations as he thought fit, and we say that those are not enough. Perhaps so. But how many times in the history of our court has such a thing happened at all?
Much around us is imperfect. And much more needs to be corrected. There are systems, and their failings out to be addressed. I only hope we take a more suggestive and participative route in the democratic process.
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