Pallavi Saluja March 3, 2017 Interviews

 

A few weeks ago, a suicide note purportedly written by late Arunachal Pradesh Chief Minister Kalikho Pul raised more than a few eyebrows amongst the legal fraternity. The note, which first surfaced about six months after Pul’s suicide, made some shocking allegations against sitting and retired Supreme Court judges, lawyers and politicians.

Quite astonishingly, the national media, which usually goes into top gear at the drop of a hat, chose to maintain silence over the issue.

And then something interesting happened.

Pul’s widow, Dangwimsai Pul, wrote a letter to Chief Justice of India JS Khehar seeking his permission for the registration of an FIR on the basis of the allegations made in the suicide note, putting the CJI in an awkward situation.

Surprisingly, the letter was converted into a petition and was listed before a bench of Justices AK Goel and UU Lalit.

That is when Senior Advocate Dushyant Dave took up the matter and appeared for Dangwimsai Pul in the Supreme Court. Bar & Bench’s Pallavi Saluja spoke to Dave on this controversial issue and Sahara-Birla judgment.

“I think the developments over the last few weeks have shaken me. I respect judiciary immensely. I love the judiciary. I have been a judge’s son, I have been a lawyer for 38 years and I don’t know where we are heading with this kind of a judiciary. It’s very difficult for people to really get justice, if everything is going to be controlled in one form or the other by executive. It’s going to be really sad.”

Below are the edited excerpts of the conversation:

Pallavi Saluja: Why did you take up this matter? Do you see any truth in the allegations that have been made in the suicide note?

 

Dushyant Dave: It is not part of my job to decide whether the contents of the suicide note are truthful or not. That is a matter to be investigated by a fiercely independent and absolutely credible institution. Unless that is done, we will never really know.

Secondly, there is no doubt about the fact that a suicide note is equivalent to a dying declaration under Section 32 of the Evidence Act. There is a long line of judgments delivered by the Supreme Court, where they have categorically held that a suicide note can be relied on to prove various offences.

So having said that, the reason why I accepted the brief was because I was appalled by fact that the judges, particularly the Chief Justice of India, were attempting to give a judicial burial to this whole issue and that is what really shook me beyond imagination. Like in the Sahara-Birla judgement, the attempt here was to somehow put the controversy beyond investigation by anybody else in the country.

That was clearly unacceptable to me and therefore, as a lawyer, and as somebody who loves Constitution, the institution of the judiciary, particularly the Supreme Court, I felt that it was necessary for someone to stand up.

 

PS: What do you make of the timing of the suicide note’s release?

 

DD: I am not really bothered about the timing of the suicide note. The fact of the matter is that there exists a suicide note; the question is somebody has to take up the matter. Apparently, there is a story going around that Governor Rajkhowa had suggested a CBI inquiry into the suicide note.

Yes, there may have been some delay, but ultimately it is in the interest of the institution that the investigation is made by a fiercely independent institution as early as possible and the truth is brought out. Twice during my arguments, I mentioned before the Court that I am not on the contents of the suicide note, and that I pray that after such investigations the allegations are proved to be wrong, but my argument was that you cannot determine that without having an independent inquiry.

It is too serious a matter; the charges are very, very serious and they really go to the very foundation of the institution (of the Supreme Court), which has now been shaken because of this.
Chief Justice Khehar
PS: In both Sahara-Birla and Pul’s matter questions have been raised regarding the constitution of the bench(es), which heard the matters respectively. Do you see a connection?

 

DD: There is no doubt about the fact that the Chief Justice Khehar constituted the bench presided by Justice Arun Mishra and Justice Amitava Roy to which the Sahara-Birla matter was assigned, after dismantling two other benches presided by two judges senior to Justice Mishra – Justice Ramana and Justice RK Agrawal.

This was completely unacceptable, because when senior judges are available, you never allow a junior judge to preside, unless the senior judges are sitting in a Constitution Bench or something. This rule was overlooked in the Sahara-Birla matter. Curiously, the two learned senior judges, Justice Ramana and Justice Agrawal, have started to preside again after two or three weeks’ gap. So what was the point of taking away the presiding assignment from them?

In Mrs. Pul’s matter, when the request was made in the letter to simply pass an administrative order, with a clear request that the matter be placed before an appropriate judge, Chief Justice Khehar should never have touched the matter.

He should have simply directed that letter to Justice Chelameswar, who is the number three in seniority, as there were allegations against the Chief Justice and Justice Dipak Misra in the suicide note, or maybe he should have constituted a 5 or 7 judge bench considering the seriousness of the matter, as he did in Justice Karnan’s case.

So sending the matter to Court 13 knowing that he (the CJI) and Justice Goel have been colleagues in Punjab & Haryana High Court and that it would send wrong signals, he still did it.

Regrettably one gets an impression that on the one hand state government and central government were not taking any action on the suicide note and on the other hand Supreme Court was deciding the Sahara-Birla matter giving clean chit to alleged recipients from across political spectrum. This is a very complex but curious co-incidence. The existence of the suicide note and its seriousness were within the knowledge of the concerned persons.
Justice Arun Mishra
PS: But what is wrong in Justice Arun Mishra being allocated the Sahara-Birla case?

 

DD: I will tell you why I am a little troubled. Justice Khehar was present on December 18 at a function at Justice Arun Mishra’s place where I was also present. Justice Khehar saw that a large number of politicians and ministers from the ruling party, as also the Congress party and others were present. Once you see that the judge has amongst his friends these top politicians, he (the CJI) had to be circumspect and not assign the Sahara-Birla case to a bench presided by that judge.

That was the least expected of him, and he did not do it. On the contrary, he changed benches and reconstituted the Bench to allow Justice Mishra to preside and sent the matter there. (Earlier I had written an article about Justice Mishra’s friendship with the Chief Minister of Madhya Pradesh, one of the recipients of alleged payments in Sahara Diary and his attending Justice Mishra’s nephew’s wedding in Gwalior, away from Bhopal on December 10th, while the matter was actually being heard by him and Justice Khehar.)

There is no doubt about the fact that the Sahara-Birla case was an extremely explosive case. It was so serious that it demanded a 5-judge bench of the senior-most judges of the Supreme Court to hear it.

However, as is evident from the judgment in that case, the approach of the judges shows that they have neither appreciated the seriousness of the matter nor have they really understood the legal position; they have completely forgotten their constitutional obligation.

They have been completely overawed by the fact that the persons against whom allegations have been made, particularly the Prime Minister, are constitutional functionaries. Nobody is above the Constitution. And if the allegations are true, then everybody has to face the music. But the truth of those allegations have to be ascertained by an extremely independent investigation.

My own feeling is that the manner in which the matter was handled and the judgement itself was perhaps to protect the Chief Justice himself, so that no constitutional functionary is proceeded against without cogent material. That is really something which is bothering me deeply.

 

PS: What was the logic of converting the letter into a writ petition and AK Goel and Justice UU Lalit?

 

DD: The Supreme Court has laid down one principle of administrative law, which must equally apply to judges – that no man can be a judge in his own cause.

Therefore, there is no doubt in my mind that Chief Justice Khehar committed a gross judicial impropriety by dealing with that letter; and by directing that letter to be converted into a writ petition; and then listing it before a particular bench.

By dealing with it in the manner he did, I think he has raised more doubts about the allegations contained in the suicide note rather than actually giving answers to them.
Justice AK Goel
PS: We understand that during the argument in court, you kept asking for
Justice Goel’s recusal?

 

DD: I don’t know what Justice Goel wanted to do. I was very clear in my mind that I did not want the judges to deal with the matter because Mrs. Pul had not sought a judicial relief. So, the Chief Justice had no authority to convert that into a petition on the judicial side without her consent.

In this case, I genuinely felt that the Bench was not likely to give justice fairly because of the connection between Justice Goel and the CJI. I am entitled to request him to recuse and I am really shocked that despite repeated requests, Justice Goel refused.

 

PS: Do you think the independence [of the judiciary] is being compromised?

 

DD: Well, I am not sure what has happened. But, there is no doubt that something seems to have happened – to try and ensure that a quiet burial is given to two of the most sensitive matters in our public life raises very serious questions, which I don’t think can be answered for a long – long time.

 

PS: There are also rumours that Mrs Pul has some political ambitions.

 

DD: Even if she has some political ambitions, there is nothing wrong about it. The fact of the matter is that a former Chief Minister of a state has committed suicide and has left a suicide note that raises very serious allegations against very powerful people. Nobody is saying that the suicide note is correct. But the nation expects that some action must take place. So, an independent SIT, which is monitored by 5 of the senior most judges of the Supreme Court, has to be constituted. Only then can something happen.

 

PS: And do you see that happening?

 

DD: I don’t see anything happening in this country, everything can be easily put under carpet. We are not a democracy in the real sense. We are increasingly becoming a banana republic. I am sorry to tell you that not many Seniors are willing to stand up and condemn. Top Seniors, who would otherwise love to issue statements on anything and everything, should have got together and issued a statement condemning Chief Justice Khehar’s conduct in this case. Why is it not happening? I heard rumors that some Seniors are advising the Chief Justice. If that is true, then those lawyers must stop appearing in this court.

 

(Views expressed in this interview are of Senior Advocate and Former President of the Supreme Court Bar Association Dushyant Dave. Bar & Bench neither endorses nor is responsible for the same)

[Exclusive]: Dushyant Dave speaks on Pul’s suicide note, Sahara-Birla and Supreme Court