Threats from within

QUESTIONS about the credibility of the Indian judiciary have come to the fore following a series of developments involving the higher judiciary in Rajasthan. The issue of a contempt notice by Justice B.J. Sethna of the Rajasthan High Court against Chief Justice M.G. Mukherjee on September 15 marked a significant turn of events. Justice Sethna's order followed the action of Chief Justice Mukherjee in transferring a criminal case that had been partly heard by Justice Sethna to a Division Bench for further hearing and disposal. Justice Sethna recalled the file, admitted the matter, granted bail to an accused in the case, and then issued the contempt notice.

Later, during the hearing of a public interest petition on the allotment of houses to judges by the Rajasthan Government, Sethna also stated, though it was extraneous to the case before him, that the Chief Justice of India, J.S. Verma, had during his tenure as Chief Justice of the Rajasthan High Court in 1986-89, illegally drawn the full daily allowance of Rs.250 for his stay in Jaipur and that there was an audit objection on that count. The Supreme Court later stayed the operation of both the orders. Commenting on the developments, a retired Judge of the Rajasthan High Court said that Sethna had probably acted in haste, as he had not given an opportunity to the Chief Justice of India to defend himself.

While staying Sethna's observations in the matter, the Supreme Court disapproved of his making them without issuing notice to the Chief Justice of India. The Court said that it was a threat to the independence of the judiciary from within. Observers feel that as all the facts of the case are not known - it was pointed out that Sethna did not reveal what Justice Verma's reply to the audit objections were - it is unfair to reach a conclusion about the conduct of Justice Verma. Audit objections are sometimes of a routine nature and, according to legal circles, they should not be quoted in isolation and out of context.

The issue of the contempt notice to the Chief Justice is equally open to question. Legal experts say that a Chief Justice has the power to transfer a part-heard matter from a single judge to a Division Bench, for which there are precedents. Although the Supreme Court refused to entertain a Special Leave Petition filed by the Rajasthan Government challenging Sethna's contempt notice against the Chief Justice, the court granted a stay after the Chief Justice himself moved the SLP. The matter was later referred to a three-judge Bench.

Justice Sethna, who is from Gujarat, had been transferred from the Gujarat High Court to Rajasthan. The transfer was preceded by a serious allegation against him. Justice Sethna, however, stated that the then Chief Justice of the Gujarat High Court had differences of opinion with him. The Supreme Court once pulled up Justice Sethna during his tenure in the Gujarat High Court for hearing a matter in a case that he had himself argued earlier as an advocate. After his recent ruling, the Chief Justice transferred Justice Sethna from the High Court's principal seat in Jodhpur to the Jaipur Bench. But Sethna went on leave saying that he was suffering from depression.

THERE have been allegations that in Rajasthan there is intense groupism among judges on caste and regional lines. In July 1997, Justice Anshuman Singh of the Rajasthan High Court wrote to Union Law Minister Ramakant Khalap a day before his retirement that he had reservations about the inclusion of the name of one advocate in the panel for judgeship but that the Chief Justice of the Rajasthan High Court had told him that the Chief Justice of India had asked that the person be recommended. Justice Anshuman Singh later withdrew his endorsement of the recommendation.

Chief Justice Mukherjee denied Justice Anshuman Singh's allegation and said that the reason behind Anshuman Singh's outburst was that he had refused to recommend the judge's name for the post of Chairman of the State Legal Aid Authority. Justice Anshuman Singh, in turn, denied the allegation and attributed the episode to a judgment that he delivered on July 5 declaring a Rajasthan Housing Board scheme for sitting judges illegal.

Justice Anshuman Singh recently denied an allegation that it was he who persuaded Sethna to issue the contempt notice on the Chief Justice.

Meanwhile, the Chief Justice of India has scrapped the list consisting of three names which had been submitted to the Supreme Court by a panel of judges of the Rajasthan High Court for selection of judges of the High Court.