One Judge, two posts

Justice Venkataswami's appointment as the chairman of a statutory body, in addition to his position as the head of the Commission inquiring into the Tehelka tapes expose, brings to the fore the threats to judicial independence and objectivity.

JUSTICE Konduswamy Venkataswami, retired Judge of the Supreme Court who was appointed to head a single-judge inquiry commission into the Tehelka tapes expose in March 2001, has a reputation for being a sober and straightforward Judge. The 67-year- old Judge was discreet in his approach and had a tenure unblemished by controversy. Therefore, his appointment by the Atal Behari Vajpayee government to conduct the inquiry created considerable optimism about the fairness of the Commission's report.

On November 25, when Justice Venkataswami addressed the media in New Delhi to announce his resignation as the Chairman of the Inquiry Commission, he did so with considerable sadness. The Commission, he claimed, had achieved considerable success and had almost arrived at the end of the inquiry. However, a section in Parliament had raised questions about the propriety and the ethical dimensions of his holding an additional appointment as the Chairman of the Authority for Advance Rulings (Customs and Central Excise), a quasi-judicial body. He did not view this appointment - made in May this year - as interfering in the discharge of his functions as Chairman of the Inquiry Commission. Yet, he decided to relinquish both the posts in order to uphold the highest standards of justice and objectivity and keeping in mind the dignity and high traditions of judicial office held by him.

The office of the Authority for Advance Rulings (Customs and Central Excise) was set up early this year, following the passage of legislation in Parliament. It was meant to enable foreign investors setting up joint ventures in India to get a clear indication of their indirect tax liability in advance. It allows a non-resident investor to seek in advance a ruling from the Authority with respect to the classification of goods, the principles of valuation and the applicability of duty exemption notifications in respect of an activity proposed to be undertaken by the joint venture. The activities could include the import, export, production and manufacture of goods.

An advance ruling provides certainty to the duty liability of the applicant as it is binding both on the applicant and on the Revenue Department. Besides the Chairman, the Authority has two members of the rank of Additional Secretary - one, a retired member of the Central Board of Excise and Customs and the other an Additional Secretary in the Ministry of Law and Justice. The decision to set up the authority - on the lines of the Authority for Advance Rulings in Direct Taxes - was taken by the then Finance Minister, Yashwant Sinha, in the 1998-99 Budget. The necessary legislation was incorporated in the 1999-2000 Budget. The objective of the Authority is obviously to reduce litigation and encourage foreign investment.

As the Authority involved quasi-judicial work, the law envisaged the appointment of a retired Supreme Court Judge as the Chairman, and fixed the upper age limit of the Chairman as 70. Justice Venkataswami thus began with a three-year fixed tenure.

DID the government choose Justice Venkataswami to head the Authority as a sinecure in order to influence him to write the Tehelka inquiry report in its favour? The government claims to have gone by the rule-book meticulously. In accordance with the relevant Supreme Court judgments, which necessitate consultation with the Chief Justice of India regarding appointing Chairpersons of quasi-judicial bodies, the government initiated the process as early as September 2001 by writing to the then Chief Justice of India, A.S. Anand. However, it was Justice Anand's successor, Chief Justice S.P. Bharucha, who offered the post to Justice Venkataswami in January. Justice Venkataswami claimed at the press conference that he did not accept the offer immediately, but only after his wife advised him that it might not be proper to reject an offer made by the Chief Justice of India.

There is no doubting the credentials of Justice Venkataswami to head the Authority. He specialised in taxation as a government pleader early in his career, before his appointment as the Judge of the Madras High Court in 1983. However, the question whether the Centre's moves in connection with his appointment were above board has to be raised, at least for reasons of legal clarity. It appears that two relevant Supreme Court judgments, delivered in 1987 and in 1993, make it clear that the CJI has a role only when the person to be appointed is a sitting Judge. If a sitting Judge is to be appointed, considerations of judicial independence and respect for the judiciary should normally prohibit the government for pulling out a Judge without permission from the head of the judicial family.

There was obviously no compulsion on the part of the government to consult the CJI to appoint a person, who only a few years earlier was a Judge of the Supreme Court. As former Union Law Minister Ram Jethmalani reveals in his book Big Egos, Small Men, there has been no consultation with the CJI at any time, not even once, when a retired Judge has been appointed to a Commission or a quasi-judicial body. Jethmalani made this revelation when Chief Justice A.S. Anand delayed the swearing in of the government's nominee to head the Monopolies and Restrictive Trade Practices Commission on the grounds that the government had not consulted him. Justice Anand and Jethmalani agreed that the convention of consulting the CJI began in the mid-1990s, when H.R. Bharadwaj was the Law Minister in the P.V. Narasimha Rao government. However, Jethmalani insisted that this consultation was only "advisory" in nature and was not "obligatory".

There is a view within legal circles that Chief Justice S.P. Bharucha would not have proposed the name of Justice Venkataswami without his name being suggested informally by Attorney-General Soli J. Sorabjee, the senior-most legal counsel of the government. The absence of legal injunctions and the ambiguity about the conventions in this regard became a convenient ruse for the government to use the appointment process without due regard to questions of propriety, it would seem. Knowing full well that its motives could be doubted in the appointment of Justice Venkataswami as the Chairman of the Authority, the government chose him for the job and secured judicial sanction by default. In the process, Justice Bharucha unwittingly allowed the office of the CJI to be used for the purpose.

It would be uncharitable to say that Justice Venkataswami found the offer too tempting to refuse; on the contrary, he might have genuinely felt that there was no conflict of interests if he accepted the second post and that he was capable of handling both the assignments effectively. He was left with no option but to quit when the government failed to defend him in Parliament; Finance Minister, Jaswant Singh's initial response was that he was not the Finance Minister when the appointment was made. He pretended that the government had no role in the matter, as it was the CJI who cleared his appointment. Though it was the Congress(I) that raised the issue, Justice Venkataswami was clear that he would not reconsider his decision to quit. Though the government sent him feelers that there was no need for him to resign, he stuck to his decision.

THE promptness with which the Government accepted his resignation and approached the CJI again to name his successor showed that the vacancy suited its interests. The government was under pressure to allow cross-examination of its witnesses, who had filed affidavits with the Commission making allegations about the financial motives of Tehelka.com. Departing from its initial opposition to the Commission's decision to widen its jurisdiction to examine the dotcom's motives in the expose, Tehelka was keen that the Commission first allow it to cross-examine the government's witnesses, before beginning arguments on the other aspects. The Commission reserved its orders, until November 26, on an application moved by Tehelka's Tarun J. Tejpal for a review of its September 30 order deferring arguments on the financial aspects. Tejpal's counsel Shanthi Bhushan had told the Commission on November 18 that cross-examination of the government's witnesses on the financial aspects was necessary to make submissions on other aspects of the inquiry.

These circumstances have created misgivings whether the Congress(I) and Tehelka.com doubted the neutrality and objectivity of the Venkataswami Commission, particularly after May.

A new Chairman and a further extension of the Commission's tenure would, doubtless, leave the outcome of the Commission's work uncertain. But Justice Venkataswami's resignation would have served its purpose if the judiciary learns to insulate itself from the trappings of the political class. It would be difficult to rule out post-retirement posts for Judges of the higher Judiciary as there are a number of areas that require judicial intervention outside the courtroom. Transparency and clear norms for the appointment of chairpersons of quasi-judicial bodies and inquiry commissions are essential to limit political meddling in the appointment process and to ensure its credibility.