A transfer and a controversy

FOLLOWING three weeks of rumours, the transfer of Justice N.K. Jain, Chief Justice of the Madras High Court, became a reality on August 21. A press release from the Union Ministry of Law, Justice and Company Affairs said that "the President, after consultation with the Chief Justice of India, is pleased to transfer" Jain as the Chief Justice of the Karnataka High Court. He has reportedly been given time until September 4 to assume charge in Bangalore.

In the past few weeks Chief Justice Jain heard the public interest petition relating to the swearing in of Jayalalithaa as Chief Minister, the plea to appoint impartial public prosecutors to handle Jayalalithaa's appeals against her conviction and sentence in the three corruption cases, and petitions seeking action against the police officers involved in the arrest of former Chief Minister M. Karunanidhi in the early hours of June 30.

The transfer of Chief Justice Jain was delayed because, according to informed sources, President K.R. Narayanan was in hospital and could not sign the order, and Jayalalithaa maintained a puzzling silence when the Centre "consulted" her on the issue.

Although the Centre does not have to obtain the Chief Minister's consent to transfer the Chief Justice of a High Court, it tried to keep Jayalalithaa in good humour on this issue. This rankled Karunanidhi, who is also president of the Dravida Munnetra Kazhagam (DMK) which is part of the National Democratic Alliance which rules at the Centre. He pointed out that several Chief Justices and Judges had been transferred during his four tenures as Chief Minister but he had never been consulted on the matters.

Two days after Jain's transfer was announced, there arose a controversy as he still occupied the position of Chief Justice of the Madras High Court. Two lawyers came up with quo warranto petitions in the court: While one petition challenged Chief Justice Jain's authority to continue in office, the other sought to restrain him from discharging his duties when he was under an order of transfer.

The petitions came up before a Bench comprising Justice K. Narayana Kurup and Justice A. Ramamurthy on August 23. Justice Kurup pointed out that neither he nor any brother-judge had been officially told about the transfer. "Why is there an iron curtain around the Chief Justice's office?"asked Justice Kurup. He then recalled how he had immediately packed his bags when he was transferred from the Kerala High Court to the Madras High Court. "I did not stick like a leech till the last moment. I packed up lock, stock and barrel immediately," he remarked.

Among lawyers, opinion is divided on whether a Judge, under an order of transfer, should take up his assignment immediately. One group argues that a Judge should vacate office as soon as he or she receives an appropriate order. It points to clause (c) of Article 217, which says that "the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India." The other view is that the executive cannot compel a Judge to vacate office immediately after a transfer order has been issued and that the transferred Judge can use his discretion when to go if he has been given time to move. In the present case, Chief Justice Jain had been given until September 4 to move. Some lawyers say that some transferred judges had pronounced judgments even after farewell receptions had been given to them.

On August 16, a group of lawyers gave a memorandum to Chief Justice Jain that Jayalalithaa's appeals against her conviction in the Jaya Publications case, the Sasi Enterprises case and the Pleasant Stay Hotel case should be posted before a Division Bench. "If the memorandum is heard by a larger Bench, people will feel confident that the matter has received due consideration and will set at rest speculation which may affect the image of the judiciary," the memorandum said. It was signed by R. Gandhi, Nalini Chidambaram, R. Vaigai, N.G.R. Prasad and others. The next day, another group of lawyers presented a memorandum to Chief Justice Jain accusing the earlier group of being "members and de facto members of the DMK". This memorandum argued that only litigants could ask for the case to be transferred to another Judge, that too for valid reasons.

Meanwhile, arguments began on August 27 in the appeals by Jayalalithaa and the other accused who were convicted and sentenced in the three cases. The appeals are heard by Justice R. Balasubramanian. The outcome of Jayalalithaa's appeals will have a bearing on her political future because it will decide whether she can contest an election to the Assembly. She has to be elected to the Assembly by November 14 if she is to continue as Chief Minister beyond that date.

If Chief Justice Jain's transfer did not come as a surprise, what did come as a surprise was the transfer of four police officers widely reported to be involved in the controversial arrest of Karunanidhi, the police firing on the DMK cadres when they took out a procession on August 12 to condemn the arrest, and the police violence against press photographers and television cameramen who were filming the police action against the processionists. Two of the officers - Sandeep Rai Rathore and Abash Kumar - belong to the Indian Police Service.

Rathore and Kumar were allegedly involved in the controversies surrounding the arrest of Karunanidhi and the DMK rally. Rathore was transferred from the post of Deputy Commissioner of Police (Traffic-North), Chennai, to the post of Superintendent of Police, Coastal Security Group, Chennai. Kumar, Deputy Commissioner of Police, Adyar, Chennai, was made Commandant, Tamil Nadu Special Police IV battalion, Kovaipudur. Another officer who was transferred, V. Varadharaju, was Deputy Commissioner of Police, Washermanpet, Chennai; he had reportedly opened fire in the air to disperse the processionists. He was made Deputy Commissioner, Adyar, but this transfer does not appear to be a punishment. N. Elangovan, DIG, Armed Police Chennai, who was reportedly involved in the arrest of Karunanidhi, was transferred as DIG, Vigilance, Tamil Nadu Electricity Board.

These transfers have led to speculation that the Jayalalithaa government wants to buy peace with the Union government and also journalists. The transfers came after the DMK screened video footage that indicated police inaction during the attack on the processionists. The footage showed police personnel in discussion with a group of men, many of them sporting a trademark white cloth around their heads, and also policemen standing by when the men attacked DMK cadres. Karunanidhi said the footage would be sent to the Union Home Ministry.

T.S.Subramanian

ALMOST a decade after the murderous Mumbai anti-Muslim pogrom of 1992-93, one of its central figures is at last facing justice.

On August 14, the Mumbai Police arrested its former Commissioner of Police, Ramdeo Tyagi. A first information report (FIR) filed on May 25 charges Tyagi and 14 serving police officials with the murder of nine innocent Muslims at the Suleiman Bakery on January 9, 1993. Tyagi's arrest came a day after the Supreme Court rejected his application for anticipatory bail, arguing that he was being held responsible for errors committed by his subordinates. The Bombay High Court had earlier rejected a similar appeal.

Tyagi and his unit had surrounded and then attacked Suleiman Bakery during the riots, claiming that terrorists holed up inside had opened fire on them. However, as the Justice B.N. Srikrishna Commission of Inquiry found, no weapons were recovered from the nine dead men. All that the police found, by their own account, was a case of single AK-47 assault rifle bullet, which was most likely planted. More important, Justice Srikrishna noted, several victims seemed to have been shot in the back while attempting to escape.

Legal proceedings are likely to centre on Tyagi's direct involvement in the killings. The Mumbai Police's own FIR of January 1993 asserts his involvement, rendering Tyagi's current claims of innocence a little mystifying. Special Public Prosecutor P.R. Vakil says that while none of the witnesses at the time recognised Tyagi, for the good reason that none knew him, a survivor has now identified the then-Joint Commissioner of Police. Formal charges are likely to be filed soon, perhaps shortly after August 29, when Tyagi's incarceration in police custody is due to end.

It is unlikely that the case will see rapid movement. For one, Tyagi had himself hospitalised hours before his arrest, complaining of cardiac trouble. So far, proper interrogation has not been possible, rendering his arrest futile. The Shiv Sena-Bharatiya Janata Party alliance has also sought to communalise the issue, claiming that the arrest was carried out to "celebrate Pakistan's Independence day". What is heartening, however, is that Maharashtra at last has a government that is moving on riots cases, however slowly.

Praveen Swami

STOCKBROKER Hiten P. Dalal, the first person to be convicted in the 1992 securities scandal, surrendered before a Special Court in Mumbai on August 8. He was convicted in a Rs.78 crore cheque-bouncing case involving Standard Chartered Bank. There are several other charges pending against Hiten Dalal in connection with the scam which was characterised by illegal nexus between banks and stockbrokers.

Hiten Dalal had acted as a broker between Standard Chartered and other banks in security transactions in 1991. Standard Chartered filed a case against Hiten Dalal for failing to honour four cheques amounting to Rs.72 crores, which he had issued. Standard Chartered also filed a suit against Canara Bank (as trustees of Canbank Mutual Fund). It stated that the bank had purchased Government of India Securities 2008 from Canmutual for Rs.60 crores. Delivery of the securities was through the Security General Ledger (SGL) account of Canbank, which was maintained at the public debt office of the Reserve Bank of India.

Standard Chartered submitted that it had paid the full purchase price by RBI cheques and, in return, Canbank issued three SGL transfer forms transferring its interest in the securities to Standard Chartered. But the RBI dishonoured the SGLs. On checking with Canbank, it was told that Hiten Dalal had promised to replace the SGLs with fresh transfer forms from the Bank of Karad. Canbank eventually admitted to owing Standard Chartered approximately Rs.58.39 crores.

In its reply to Standard Chartered's demands for returning the security money, Canbank told the court that under Hiten Dalal's directions Standard Chartered had bought securities from other banks. He also negotiated the subsequent sale of these securities. The difference between the actual sale price and the desired sale price was either paid to or recovered from Dalal. It balanced out, hugely benefiting both.

Canbank also told the court that Dalal had informed it that transactions worth Rs.58.39 crores would be squared against the sale of transactions totaling Rs.60 crores which was outstanding between Standard Chartered and Canbank. In fact, in 1995 Standard Chartered withdrew its suit against Canbank. But it still held Dalal liable for the money it had invested in securities and lost.

On April 30, 1993, Special Judge S.N. Variava convicted Hiten Dalal under Section 138 of the Negotiable Instruments Act, 1881, and sentenced him to one year's imprisonment and a fine of Rs.1 lakh for defrauding Standard Chartered of over Rs.78 crores. On July 11, 2001, the Supreme Court confirmed the sentence.

Dalal has been charged with several other economic offences. The net amount under litigation in the'Big Bull' Harshad Mehta-led scam is Rs.2,662 crores. Over half the cases relate to Harshad Mehta.

In 1998, Dalal was convicted and sentenced to seven years' of rigorous imprisonment. The Central Bureau of Investigation had charged him with defrauding Andhra Bank and CanFin to the tune of Rs.33 crores. He was given time to appeal. This case is among the pending ones.

Anupama Katakam