There are two possibilities arising out of what happened in the supreme court on July 18. First, there was a clairvoyant, a la Nostradamus, in the bench of the apex court. Second, there are a few too many dark chambers in the closet of the former chief justice, Altamas Kabir, who demitted office on July 19. 

As reported by The Times of India, an article headline ‘Into The Darkness’ by advocate Gopal Shankarnarayan and uploaded on www.barandbench.com at 8.36 am – a good two hours before the pronouncement of the apex court’s judgment quashing the single-window national eligibility-cum-entrance test (NEET) – predicted precisely everything: the verdict, the grounds and the dissent.

Shankarnarayan wrote that the petitions by private medical colleges would be allowed on the ground that the medical council of India (MCI) had no jurisdiction to notify NEET and also that justice AR Dave would dissent. 

Shankarnarayan wrote, “For the better part of the last week, senior counsel and junior advocates alike have without compunction shared a story that appeals by the private colleges will be allowed with a declaration that the MCI has no jurisdiction, and that Justice Dave will dissent from this view. The judgment, it is confidently touted, runs into more than 190 pages and in excess of 300 paragraphs. It is my fervent hope that this tale is false – a figment of some perverse and destructive mind. In a few hours, we will know the truth.”

All this came out to be true.

Justice Kabir’s short tenure as the 39th CJI (September 29, 2012 to July 18, 2013) was controversially eventful. Fingers were pointed at the way the Sahara-SEBI tussle was heard out of turn by a CJI-headed bench when it was pending before another two-judge bench. Many also looked askance when a CJI-headed bench took up the petition by Bharti (Airtel) chief Sunil Mittal and Essar promoter Sashi Ruia for quashing of summons in 2G spectrum allocation scam when the main case was pending before a separate two-judge bench.

Justice Kabir’s name also came up in a couple of controversies surrounding selections for higher judiciary.

Shankarnarayan wrote, “Last week, Chief Justice Bhattacharya of Gujarat levelled some hard-hitting criticism at (Justice) Kabir for having superseded him because he had objected to the latter’s sister being appointed to the Calcutta High Court merely a few months before she turned 60. Kabir’s rancour at this was evident when he took the unprecedented step of writing to the Government stating that Bhattacharya and two others had been overlooked by the Collegium ‘because their elevation as such would prove to be counter-productive and not conducive to administration of justice’.”

It is now also known that the collegium had to nip Kabir’s last-minute bid to appoint an SC judge. A fortnight before his superannuation, Kabir proposed to the collegium that it recommend the appointment of a high court chief justice as an apex court judge. The collegium unanimously told the CJI that since the president had already signed the warrant of appointment for Justice P Sathasivam as the next CJI, it would be against precedents and tradition for the outgoing CJI to push for the appointment.

Conflicts on Article 32

Besides these controversies, Kabir’s orders as a judge of supreme court have left a trail of conflict in judicial pronouncements on a touchy subject: Article 32 of the Constitution.

While he had, on July 15, rejected two petitions challenging the appointment of Shashi Kant Sharma as the comptroller and auditor general of India on grounds that the high courts are competent to hear matters like these (petitioners have sought that guidelines be laid down for the appointment of the CAG), Kabir found it fit to hear petitions from alleged smugglers directly.

Article 32 provides that any Indian can move the supreme court directly to invoke his fundamental rights. Articles 226 and 227 give high courts the jurisdiction to hear writ petitions to enforce fundamental rights. 

The argument for Article 32 seemed to be that if a gross injustice to an individual or a group of individuals, who did not have easy access to the legal machinery, is brought to the notice of the highest court of the country, the court would entertain it. The famous cases argued under this Article were the Bandhua Mukti Morcha vs Union of India (UoI), Ram Prasad vs State of Bihar, Sheela Barse vs UoI, etc. 

But in Kabir’s tenure at the apex court, first as a judge hearing matters from revenue disputes and then as chief justice, Article 32 has been used by all and sundry to thwart arrest by law-enforcement authorities. These are powerful smugglers and tax evaders who have got orders of ‘no arrest’, as if by way of right.

These petitions were often running along with other petitions in which arguments that customs offences are bailable and investigators must be reined in by provisions of CrPC were made. (See Governance Now, May 10, 2012 – When Pranabda played dentist and knocked off customs' teeth)

Not surprisingly, other SC judges have taken a dim view of the practice of courts entertaining Article 32 petitions as a matter of course. Justices CK Prasad and V Gopala Gowda have passed an order as late as March this year, (Deepak Gopaldas Bajaj vs UoI and others) disposing of such cases by observing that the petitions were challenging showcause notices (issued by government agencies).

“We are not inclined to interfere in our jurisdiction under Art 32 of the Constitution as this stage,” the bench said.

So which view is right?

Justice Kabir’s orders would have to be looked at very charitably if one considers that no significant question of public interest was involved and, in fact, the orders resulted in waiving arrest for some of those accused of big financial crimes.

If one looks closer, the name of one particular senior counsel of the supreme court appears in most of these cases which Justice Kabir entertained under Article 32.

Look at the variety of cases:

Yunus H Mithwani, director of M/S Nayasa Exports. Was under investigation by the directorate of revenue intelligence (DRI) for allegedly inflating values of export garments and fabrics so that he could skim off export benefits in excess of Rs 20 crore.

The SC ordered on April 16, 2010 in WP (criminal) 46 of 2010, that Mithwani should not be arrested and that he should present himself at the DRI office for investigation.

This petition was dismissed on January 4, 2011 as infructuous because of the death of the petitioner.

A case against Rakesh Kumar Pandey of Jonam International and 15 others by DRI for alleged wrong declaration and overvaluation, again to take undue export benefits – of over Rs 25 crore. Pandey and his syndicate declared exports of 'attar’ (perfume) worth Rs 45 crore which allegedly turned out to be mere water!

The court ordered in WP (criminal) 58 of 2011 on March 11, 2011 that this case was to be tagged with Yunus Mithwani’s case and the petitioners were not to be arrested.  

M/S Bharat Hotels were under investigation by DRI for allegedly importing an aircraft worth Rs 120 crore in 2009 without paying customs duty. The duty was a whopping Rs 21.91 crore but the court ordered that the petitioners were not to be arrested. Significantly, orders in the two cases above came after Yunus Mithwani had been dismissed as infructuous.

In Vandana Alawadhi’s case (criminal writ petition 147/2011), the DRI was investigating alleged misdeclaration and undervaluation in import of insecticide. The duty allegedly evaded was Rs 10 crore. The court ordered in August 2011 that the petitioner should not be arrested and instead should appear before DRI the following day.

Rajinder Arora and his group, (see Governance Now dated May 10, 2012: When Pranabda played Dentist…) were being investigated by the customs department for alleged massive overvaluation and misdeclaration in exports of carpets to get undue benefits under DEPB  (duty entitlement passbook) scheme and other export promotion schemes. Carpet exports worth Rs 300 crore were under scrutiny.

The court ruled in writ petition (no. 123 of 2010) that the petitioners were not to be arrested.

In the case which Justice Prasad heard later, the alleged offenders had challenged showcause notices issued by various customs officers on grounds of jurisdiction. But Justice Prasad has packed them off, refusing to entertain them under Article 32 while also allowing them to raise the argument of jurisdiction before the relevant authorities.

Incidentally, Justice Prasad also ticked off Haryana minister Gopal Kanda, an accused in the Geetika Sharma suicide case, for having approached the Delhi high court for bail and thus bypassing the relevant trial court. According to a report in The Indian Express dated March 23, 2013, Justice Prasad observed: “Why did you go to the HC directly? You should have gone to the trial court first. This is a peculiar procedure. Even if there are concurrent jurisdictions (to entertain the bail plea) with both the courts, you have to first approach the trial court.”

When senior advocate Mukul Rohatgi reasoned that the high court judge in fact took up his bail application and decided it on merits, the bench said, “So what. (sic) You must follow the procedure which is available to everybody else.”

That, in sum, is the problem with Justice Kabir’s orders cited above. Tax offenders are often networked in a large criminal machinery and the beneficiaries/kingpins are men of influence. For the supreme court to rest its sympathies with these kingpins is a little difficult to fathom.

In the famous case of Shivkant Jha vs Union of India in 2006, the SC loftily sent back the petitioner to the Delhi high court saying the high court should have been the first court to move. The matter, poignantly, was a petition warning of the threat to India’s economic security by way of the double taxation avoidance agreements that Jha was challenging.

But the SC did not find it fit to hear him directly then. Nor on July 15, when petitioners argued that the current CAG’s appointment would raise a conflict of interest as Sharma had been a defence secretary and the CAG was seized of cases of alleged malfeasance in defence deals.

But it has been hearing alleged customs offenders quite patiently.

(This story appeared in the August 1-15 edition of the print issue)