Sunday, November 22, 2009
CJI Y K Sabharwal article in TOI
A former Chief Justice of India defends his honour The man who delivered one high-profile judgment after another now finds his integrity being questioned. Since his retirement, Justice Y K Sabharwal has been dogged by rumours and insinuations, with motives being imputed to major rulings by him — including the ones on the sealing drive in Delhi. Now, in an exclusive article for Sunday Times of India, the anguished former CJI finally breaks his silence
Ajudge is trained to speak only through his judgments. He does not have to justify his judgments. I retired on January 14 this year as Chief Justice of India. A large number of cases were decided by me. A judge cannot decide cases guided by the number of people who may be pleased or displeased by the judgment.
My judgments on various unauthorised constructions and misuse of residential premises have come in for both praise and criticism. They have been commented upon by those who were adversely affected and also by politicians, RWAs, media and even Parliament. It’s not a judge’s function to respond to such criticism. Judges decide on law and not on populism. An afternoon publication imputed a motive to these judgments and carried a malicious campaign for nearly three months.
FALSE ALLEGATION: Two members of the Bar addressed a press conference and claimed that I had delivered some judicial orders to benefit my two sons in their business. The story appeared only in a weekly newspaper which also carried an interview of a senior advocate. The interview suggested as if the entire media had been managed or was scared and that may be the reason for it to block the story.
My initial instinct was to maintain silence and follow the discipline of a judge even though I have retired. However, I was told that a distinguished predecessor of mine suggested on TV that silence on such allegations was not the option. I decided to break my silence lest people believe that I have no answers to give.
The attack against me is that my two sons — Chetan and Nitin — are small-time exporters and they acquired wealth as a result of my judicial decisions. It is utterly false. My sons made a modest beginning in garment export business more than a decade ago. After struggling initially, their business expanded in the past few years and their turnover to 10 countries and 40 foreign buyers has reached a couple of hundred crores. Their manufacturing units are in Noida. For their consistent growth, they have been recognised as a star export house by the ministry of commerce and industry. Their income and profits are disclosed in their tax returns. They have a large number of employees. They require neither parental support nor government patronage to expand what is a pure private sector business activity in a competitive overseas market.
CONSPIRACY THEORY: It has been alleged that my sons have taken discretionary allotment of certain plots from Noida Authority. The imputation is that one of my judicial orders in a case, which is still pending, favoured an important member of a political party and the allotment of industrial plots was made because of that. I have now asked my sons and have checked the allotment record of the plots. They also have some factories on rent and some purchased from the market.
Four industrial plots were allotted to my sons at different points of time by Noida Authority. These allotments were made in 1999, 2000 and 2006. All allotments were under schemes of Noida Authority where entrepreneurs making investments and generating employment there were allotted plots. These were not stray, solitary or discretionary allotments. Under these schemes, thousands of allotments were made at pre-determined prices.
Let me satisfy those who are bending backward to discover conspiracy theories by saying that when the allotment of three plots — one in 1999 and two in 2000 — were made, the government in power was not the same as in 2004 or 2006. There were two different chief ministers — one in 1999 and another in 2000. The two allotments in 2000 were made at about Rs 2,100 per sqm, which was the pre-determined rate at which allotment was made to every entrepreneur. In 2003, my sons purchased another plot in the same sector from the market and even at that time, the rate was Rs 2,550 per sqm.
RECKLESS INSINUATION: The allotments made in 1999 and 2000 are being used at this stage after my retirement to impute motives for judgments and orders of sealing passed in 2006. The plot allotted in 2006 is not a commercial plot as insinuated. It is an industrial plot allotted in view of their growth in export business as per the scheme. The allotment has no link, direct or indirect, with orders regarding sealing of properties in Delhi. The reckless insinuation is that the prevailing market price of the said plot was 10 times the price of allotment. Are insinuators willing to buy even today at 1/3rd the price being quoted by them?
In addition to their growing export business, my sons have also diversified to development of IT parks. They have, however, no interest, whatsoever, in non-IT buildings. They do not own even one inch of area in any mall or shopping complex. IT plots in Noida are given under institutional category which cover plots for schools, colleges, religious and cultural activities and for IT use. They are not commercial plots. The allotment of IT plots in 2004 in a sector which was almost a jungle was made at the prevailing market price. It is for use of IT only. They have a partner in this project, Kabul Chawla, a childhood friend of Chetan from Punjabi Bagh where my sons grew up. He joined them in 2004. It is preposterous to think that in 2004, I planned that in 2006 I would deliver a judgment as a result of which Chawla would become a beneficiary in some project which has nothing to do with my sons. The inferences drawn are malicious and are based on total distortion of facts.
There is a reference to a company called Harpawan Constructions Ltd which was incorporated with my son’s old friend, P Bhageria. This company has not undertaken any business activities, whatsoever, and does not have even an inch of area. My sons have no interest in any project of Bhagerias or in any of their companies.
What pains me is when sinister motives are attached to even innocuous events. In 2006, Noida Authority advertised allotment of residential plots. Thousands of people applied, including seven members of my family. Six lost out in the draw of lots and one was successful. However, the scheme was challenged and the allotment process cancelled. My daughter-in-law did not get any plot. A conspiracy is being smelt even in that.
WHERE’S THE ACCOUNTABILITY? My sons purchased a house in Maharani Bagh. Ninety per cent of the sale consideration came from loans from public sector banks. On some occasions, they were extra cautious not to mention my full name in their business activities lest they be accused of misuse of my name. Even that is being considered scandalous.
My sons continue to live with me after my wife’s death. Much is being made of the fact that my official residence was temporarily shown by them as their registered office. They did this in 2004 for the convenience of receiving mail. This was without my knowledge. As soon as I came to know of this, I got it corrected in 2004 itself. No commercial activity whatsoever was ever carried on from the Punjabi Bagh house. In various categories, my sons, on credit worthiness of their business, have a combined banking facility of about Rs 75 crore. Should they be denied or deprived of this facility because they are my sons? None of my orders have benefited them in any manner, whatsoever. To the best of my understanding, they have not committed any wrong, but if they have, law has to be applied to them like to any other citizen.
Is it fair to call the proceedings, still pending before Court, motivated? Any price is not heavy for a bold and fearless judge and my worry is also not as much about my individual pain and agony, but about the adverse impact such unwarranted public verdicts can have on the independence of the judiciary. Have not these insinuators any responsibility to the public to give correct information and not falsehoods or half-baked truths? Are they not subject to any accountability? Perhaps, they feel, they are not.
I have used this column to put the record straight. I had desisted from doing so all this time because of the pending proceedings in Supreme Court and High Court, in some of which, the campaigners are appearing as advocates. I have spoken now because silence is not an option any more.
Ajudge is trained to speak only through his judgments. He does not have to justify his judgments. I retired on January 14 this year as Chief Justice of India. A large number of cases were decided by me. A judge cannot decide cases guided by the number of people who may be pleased or displeased by the judgment.
My judgments on various unauthorised constructions and misuse of residential premises have come in for both praise and criticism. They have been commented upon by those who were adversely affected and also by politicians, RWAs, media and even Parliament. It’s not a judge’s function to respond to such criticism. Judges decide on law and not on populism. An afternoon publication imputed a motive to these judgments and carried a malicious campaign for nearly three months.
FALSE ALLEGATION: Two members of the Bar addressed a press conference and claimed that I had delivered some judicial orders to benefit my two sons in their business. The story appeared only in a weekly newspaper which also carried an interview of a senior advocate. The interview suggested as if the entire media had been managed or was scared and that may be the reason for it to block the story.
My initial instinct was to maintain silence and follow the discipline of a judge even though I have retired. However, I was told that a distinguished predecessor of mine suggested on TV that silence on such allegations was not the option. I decided to break my silence lest people believe that I have no answers to give.
The attack against me is that my two sons — Chetan and Nitin — are small-time exporters and they acquired wealth as a result of my judicial decisions. It is utterly false. My sons made a modest beginning in garment export business more than a decade ago. After struggling initially, their business expanded in the past few years and their turnover to 10 countries and 40 foreign buyers has reached a couple of hundred crores. Their manufacturing units are in Noida. For their consistent growth, they have been recognised as a star export house by the ministry of commerce and industry. Their income and profits are disclosed in their tax returns. They have a large number of employees. They require neither parental support nor government patronage to expand what is a pure private sector business activity in a competitive overseas market.
CONSPIRACY THEORY: It has been alleged that my sons have taken discretionary allotment of certain plots from Noida Authority. The imputation is that one of my judicial orders in a case, which is still pending, favoured an important member of a political party and the allotment of industrial plots was made because of that. I have now asked my sons and have checked the allotment record of the plots. They also have some factories on rent and some purchased from the market.
Four industrial plots were allotted to my sons at different points of time by Noida Authority. These allotments were made in 1999, 2000 and 2006. All allotments were under schemes of Noida Authority where entrepreneurs making investments and generating employment there were allotted plots. These were not stray, solitary or discretionary allotments. Under these schemes, thousands of allotments were made at pre-determined prices.
Let me satisfy those who are bending backward to discover conspiracy theories by saying that when the allotment of three plots — one in 1999 and two in 2000 — were made, the government in power was not the same as in 2004 or 2006. There were two different chief ministers — one in 1999 and another in 2000. The two allotments in 2000 were made at about Rs 2,100 per sqm, which was the pre-determined rate at which allotment was made to every entrepreneur. In 2003, my sons purchased another plot in the same sector from the market and even at that time, the rate was Rs 2,550 per sqm.
RECKLESS INSINUATION: The allotments made in 1999 and 2000 are being used at this stage after my retirement to impute motives for judgments and orders of sealing passed in 2006. The plot allotted in 2006 is not a commercial plot as insinuated. It is an industrial plot allotted in view of their growth in export business as per the scheme. The allotment has no link, direct or indirect, with orders regarding sealing of properties in Delhi. The reckless insinuation is that the prevailing market price of the said plot was 10 times the price of allotment. Are insinuators willing to buy even today at 1/3rd the price being quoted by them?
In addition to their growing export business, my sons have also diversified to development of IT parks. They have, however, no interest, whatsoever, in non-IT buildings. They do not own even one inch of area in any mall or shopping complex. IT plots in Noida are given under institutional category which cover plots for schools, colleges, religious and cultural activities and for IT use. They are not commercial plots. The allotment of IT plots in 2004 in a sector which was almost a jungle was made at the prevailing market price. It is for use of IT only. They have a partner in this project, Kabul Chawla, a childhood friend of Chetan from Punjabi Bagh where my sons grew up. He joined them in 2004. It is preposterous to think that in 2004, I planned that in 2006 I would deliver a judgment as a result of which Chawla would become a beneficiary in some project which has nothing to do with my sons. The inferences drawn are malicious and are based on total distortion of facts.
There is a reference to a company called Harpawan Constructions Ltd which was incorporated with my son’s old friend, P Bhageria. This company has not undertaken any business activities, whatsoever, and does not have even an inch of area. My sons have no interest in any project of Bhagerias or in any of their companies.
What pains me is when sinister motives are attached to even innocuous events. In 2006, Noida Authority advertised allotment of residential plots. Thousands of people applied, including seven members of my family. Six lost out in the draw of lots and one was successful. However, the scheme was challenged and the allotment process cancelled. My daughter-in-law did not get any plot. A conspiracy is being smelt even in that.
WHERE’S THE ACCOUNTABILITY? My sons purchased a house in Maharani Bagh. Ninety per cent of the sale consideration came from loans from public sector banks. On some occasions, they were extra cautious not to mention my full name in their business activities lest they be accused of misuse of my name. Even that is being considered scandalous.
My sons continue to live with me after my wife’s death. Much is being made of the fact that my official residence was temporarily shown by them as their registered office. They did this in 2004 for the convenience of receiving mail. This was without my knowledge. As soon as I came to know of this, I got it corrected in 2004 itself. No commercial activity whatsoever was ever carried on from the Punjabi Bagh house. In various categories, my sons, on credit worthiness of their business, have a combined banking facility of about Rs 75 crore. Should they be denied or deprived of this facility because they are my sons? None of my orders have benefited them in any manner, whatsoever. To the best of my understanding, they have not committed any wrong, but if they have, law has to be applied to them like to any other citizen.
Is it fair to call the proceedings, still pending before Court, motivated? Any price is not heavy for a bold and fearless judge and my worry is also not as much about my individual pain and agony, but about the adverse impact such unwarranted public verdicts can have on the independence of the judiciary. Have not these insinuators any responsibility to the public to give correct information and not falsehoods or half-baked truths? Are they not subject to any accountability? Perhaps, they feel, they are not.
I have used this column to put the record straight. I had desisted from doing so all this time because of the pending proceedings in Supreme Court and High Court, in some of which, the campaigners are appearing as advocates. I have spoken now because silence is not an option any more.
Charges against fomer CJI Y K Sabharwal
Contempt Of Judicial Power
Former Chief Justice of India Y.K. Sabharwal's defence becomes murkier -- rebutting the former CJI's rejoinder, point by painstaking point to show how it ignores or sidesteps the inconvenient and emphasises the irrelevant.
Prashant Bhushan , Campaign for Judicial Accountability and ReformsJustice Sabharwal finally broke his silence in a signed piece in the Times of India. His defence proceeds by ignoring and sidestepping the inconvenient and emphasising the irrelevant to evoke sympathy. To examine the adequacy of his defence, we need to see his defence against the gravamen of each charge against him.
Charge No. 1 That his son’s companies had shifted their registered offices to his official residence.
Justice Sabharwal’s response: That as soon as he came to know he ordered his son’s to shift it back.
Our Rejoinder: This is False. In April 2007, in a recorded interview with the Midday reporter M.K. Tayal he feigned total ignorance of the shifting of the offices to his official residence. Copy of the CD containing the said conversation is available as Annexure I. In fact, the registered offices were shifted back from his official residence to his Punjabi Bagh residence exactly on the day that the BPTP mall developers became his sons partners, making it very risky to continue at his official residence. Copies of the document showing the date of induction of Kabul Chawla, the promoter and owner of BPTP in Pawan Impex Pvt. Ltd., one of the companies of Justice Sabharwal’s sons, and Form no. 18 showing the shifting of the registered office from the official residence of Justice Sabharwal to his family residence on 23rd October 2004 are available as Annexure II
***
Charge No. 2: That he called for and dealt with the sealing of commercial property case in March 2005, though it was not assigned to him. It is only the Chief Justice who can assign pending cases to various judges. He was not the CJI at that time. Copy of the order dated 17th March 2005 is available as Annexure III.
Justice Sabharwal’s response: Justice Sabharwal does not answer this charge.
***
Charge No. 3. That he did this exactly around the time that his sons got into partnerships with Mall and commercial complex developers, who stood to benefit from his sealing orders. The chain of events is as follows:
On 23rd October 2004, Kabul Chawla, the promoter of one of the biggest developers of shopping malls and commercial complexes, was inducted in Pawan Impex as a 50% shareholder and Director. On 12.02.2005, Kabul Chawla’s wife, Anjali Chawla was also inducted as Director of Pawan Impex. On 17th March 2005, Justice Sabharwal ordered that the case dealing with the sealing of commercial establishments should also be heard along with the writ of M.C. Mehta which was being heard by him. On 8th April 2005, Chetan Sabharwal and Nitin Sabharwal, two sons of Justice Sabharwal, set up another company, Harpawan Constructors, with the object of constructing Commercial complexes. On 25th October 2005, Purshottam Bagheria, one of the big builders on shopping malls and commercial complexes of Delhi was inducted as a partner in Harpwan Construtors. On 16th Februrary 2006, Justice Y. K. Sabharwal, who by that time had become the Chief Justice of India, passed a detailed order in the aforementioned case setting into motion the demolition and sealing in Delhi.
Justice Sabharwal’s response: That they were his sons friends. That Harpawan Constructors which was set up by his sons with the Mall developer Purshottam Bagheria did not do any business. In fact the courts under him got Bagheria’s 1 MG road mall demolished. That his sons are not developing shopping malls but only an IT Park.
Our Rejoinder: If so many Mall and commercial complex developers were his sons’ close friends, then he should not have dealt with the case anyway since that creates an immediate conflict of interest. Moreover, why should they go into partnership with these developers who stood to benefit from Justice Sabharwal’s orders, and that too exactly at the time when he seizes control of the sealing of commercial property case and starts dealing with it?
He says that the company set up by his sons in partnership with Bagheria has not done any business. If so, why was this new company set up for developing commercial complexes in partnership with this builder? In an interview with ZNews Justice Sabhawal claims credit for the judiciary under him ordering the demolition of the illegal 1 MG road mall owned by Bagheria. But then why do his sons enter into partnerships with such an illegal builder whose buildings have had to be demolished by the Judiciary?
And immediately after this partnership with the Sabharwals, Bagheria went on to announce the construction of “Square 1 mall” in Saket as the most fashionable mall in India. And all the fashion designers who had their shops and outlets at 1 MG road went on to buy space in the Square I mall. What is important to note here is that Bagheria and his partners at 1 MG road had already parted with all the space on 1 MG road. The demolition thus hurt the designers and others who had bought shops there, but did not hurt Bagheria who may have in fact benefited from it by clearing the land of his tenants and getting them to buy space at his new malls at Saket and elsewhere.
An IT park is also a commercial complex like any other. Many commercial establishments sealed were IT centres and BPOs which were forced to buy space in IT parks like that being constructed by his sons and their partners.
***
Charge No. 4 That the Union Bank of India gave a loan of 28 crores to his sons’ company Pavan Impex on a collateral of plant and machinery and other moveables at the site of their proposed IT Park, which were non-existent.
Justice Sabharwal’s response: That his sons’ had a credit facility of 75 crores.
Our Rejoinder: If that were the case, what was the need for mortgaging non-existent assets for obtaining this loan? Moreover, the Banks’ senior manager is on record saying that the loan was given on the basis of projected sales to prospective customers. The conversation with the Bank Manager is in the CD referred to as Annexure I.
***
Charge No. 5. That because of the obvious conflict of interest, he could not have dealt with this case.
Justice Sabharwal’s response: That his orders have never benefited his sons.
Our Rejoinder: His orders of sealing lakhs of commercial properties clearly forced those establishments to buy or rent space in commercial complexes like those that his sons’ company were constructing; and shopping malls etc that their friends and partners were constructing. There was a clear conflict of interest and his orders have clearly benefited his sons and their partners.
***
Charge No. 6 That a large number of industrial and commercial plots were allotted in Noida by the UP government to his sons’ companies, at prices far below the market price. In particular several huge plots were allotted between December 2004 and November 2006 by the Mulayam Singh/Amar Singh government, while he was dealing with Amar Singh’s tapes case, and had stayed the publication of those tapes on the behest of Amar Singh.
Justice Sabharwal’s response: That some of the plots were allotted by earlier different governments. That the prices were not far below the market price. That the allotments were made in the normal course to his sons who were entrepreneurs and were providing employment to hundreds of people in Noida.
Our Rejoinder: Even if one were to look at only the last two allotments of 12,000 metres each made in December 2004 and November 2006, made by the Mulayam Singh/Amar Singh governments, it is obvious that the allotments are definitely not in the normal course.
Consider the allotment to Pawan Impex. The company has Nil turnover and Nil business (as declared in their application) on the date of application on 30/12/04. The very next day they receive a letter from Noida Authority asking them to come for an interview within 4 days on 5/11/04. On that day the authority notes that they want 12,000 sq. M in Sector 125 or Sector 132. The minutes note that because the work of development of Sector 125 is not complete and because in sector 132 the plot size available is only up to 11,000 sq metres, the matter is deferred for the next meeting. In the next meeting on 13/12/04, though Sector 125 is still not developed, a decision is taken to allot them a 12,000 Sq. metre plot in Sector 125 for a BPO. All this without a word about how and why a company with nil business is worthy of being allotted one of the largest plots of 12,000 sq. meters. The previous application of M/s Softedge Solutions Pvt. Ltd for an IT park is rejected on the ground that they could not satisfactorily answer questions about their previous experience in IT and their technical tie up. But Pawan Impex represented by Chetan Sabharwal with Nil business, no previous track record in IT and no technical tie up sails through with no questions asked. All in the normal course, of course!
Copies of the profit and loss accounts of Pawan Impex Pvt. Ltd. for the year ended 31.03.2003 and 31.03.2004 showing its income nil are available as Annexure IV. Justice Sabharwal says that the allotment price of Rs. 3,700/sq M was not below the market price. The current circle rate in Sector 125 is Rs. 11,000/sq metre and the market price is over Rs. 30,000/sq meter there.
Similarly, the huge plot of 3 acres, No. 12 A in Sector 68 alloted to Sabs Exports in November 2006 at a throw away price of Rs. 4000 per square meter is also not in the normal course and was similarly made within days of application and a bogus interview, without any other system. Today, within 10 months of allotment, even the circle rate of plots in Sector 68 is Rs. 8,000 per sq. meter and the market rate is Rs. 20-22,000 per sq. meter. Moreover this allotment has been made at a time when he was dealing with Amar Singh’s tapes case and had stayed the publication of the tapes.
***
Charge No. 7 That his sons have purchased a 1150 square meter house in Maharani bagh, New Delhi in March 2007 for a consideration of 15.46 crores. The source of money for this is unexplained and in the sale deed they seek to conceal their relationship with Justice Sabharwal by writing his name as Yogesh Kumar and giving their factory address instead of the residential address.
Justice Sabharwal’s response: That 90 percent of the money for the purchase of this house was from four banks; that his sons concealed his full name in the sale deed in order to avoid taking advantage of their association with him.
Our Rejoinder: Banks do not normally advance loans of 90% of the value of a property on its security. Otherwise they would end up holding inadequate security if the property prices fall by even 15%. If they have done so in this case, it is either because of an undue favour as in the case of the loan of 28 Crores to Pawan Impex, or they valued the property higher than the declared purchase price. His explanation for concealing his name in the sale deed is hilarious and unbelievable since his sons did not hesitate to use his official residence as the registered office of their companies. Moreover, this was in a registered sale deed with a private party, where there was no occasion for taking any advantage by using his name.
***
It is therefore clear that Justice Sabharwal is guilty of serious judicial misconduct and appears to be prima facie guilty of offences under the prevention of Corruption Act which need to be investigated. It is also significant that highly respected former Judges of Supreme Court of India like Justice V. R. Krishna Iyer, Justice P. B. Sawant, Justice J.S. Verma etc. have all called for a thorough investigation into this matter. This is imperative and could be done by a panel of retired Judges and other eminent members of civil society. We call upon the Chief Justice of India to constitute such an inquiry panel and request Justice Sabharwal to co-operate with it.
Silencing exposure of judicial corruption by contempt:
Meanwhile the Delhi High Court has held the staff of Mid Day guilty of contempt of Court for publishing some of the above allegations in their newspaper in May this year. This is despite the fact that they had pleaded that the allegations were all true and based on unimpeachable, authentic and verifiable documents obtained essentially from the website of the Department of Company Affairs. However, without examining Mid Day’s defence of truth, the High Court held them guilty on the basis that
"The nature of the revelations and the context in which they appear, though purporting to single out former Chief Justice of India, tarnishes the image of the Supreme Court. It tends to erode the confidence of the general public in the institution itself. The Supreme Court sits in divisions and every order is of a Bench. By imputing motive to its presiding member automatically sends a signal that the other members were dummies or were party to fulfill the ulterior design."
It may be noted that Mid Day’s allegations were only against Justice Sabharwal and they had not even mentioned any other judge in their reports.
We regard this view of the Court as highly pernicious which would mean that even truthful exposure of corruption in the judiciary would not be permitted. This view will make a mockery of the basic principles of our democratic republic which is founded on the premise that the people are the real masters and all public servants including the judiciary are working on their behalf and are accountable to them. It would also render irrelevant the amendment in the Contempt of Courts Act by which truth was made a valid defence. A statement signed by several eminent persons in this regard is being issued today and the Campaign for Judicial Accountability and Reforms also fully endorses that statement.
Y K Sabharwal
http://en.wikipedia.org/wiki/Y_K_Sabharwal
Cover of Mid-Day (2007-06-26) showing an IT mall under construction by Pawan Impex, a firm promoted by Justice Sabharwal's sons. The Rs. 560 million, eight story mall in NOIDA is being built jointly with shopping mall giant BPTP. Before the partnership with BPTP, the share capital of Pawan Impex was Rs. 0.1 million.[2]
Career
Sabharwal worked as an advocate for Indian Railways from 1969 to 1981, as an advocate for Delhi administration from 1973 to 1976-1977, later as Additional Standing Counsel and then as Standing Counsel. He also served as Counsel to the Central Government from 1980 to 1986. He represented Delhi in the Bar Council of India from 1969 to 1973.
He became an Additional Judge in the Delhi High Court on November 17, 1986 and a judge soon after.
On February 3, 1999, he was appointed as Chief Justice of Bombay High Court. In less than a year, he was appointed as a judge, Supreme Court of India.
Being the seniormost judge of the Supreme Court of India at the time, Sabharwal was appointed as the Chief Justice of India to succeed Mr. R.C. Lahoti who was retiring on October 31, 2005[1]. He was sworn in as the Chief Justice by the President of India, A P J Abdul Kalam on November 1, 2005 for a period of about 14 months as he would turn 65, the retirement age for Chief Justices, on January 14, 2007.
[edit] Significant judgements
As a judge of the Supreme Court, he delivered several important judgements dealing with constitutional matters.
- A constitutional bench headed by Justice Sabharwal in October 2005 held as unconstitutional the dissolution of Bihar assembly on the basis of the report of Governor Buta Singh but refused to revert the action, thereby paving way for fresh elections.
- He headed the bench which refused to grant any relief in the 2006 Delhi sealing drive in which thousands of illegal constructions were demolished across Delhi. This became controversial after it was later found that his two sons were connected with the real estate business in Delhi.
- In 2007, he headed a nine judge constitution bench which ruled that all laws placed under the ninth schedule after April 24, 1973, shall be open to be challenged in court if they violate the fundamental rights guaranteed under Article 14, 19, 20 and 21 of the Constitution. This judgment was made in response to a number of petitions made on various laws including the Tamil Nadu Reservation Act, 1994.
[edit] Allegations of Real Estate Operations by his sons
During the 2006 Delhi sealing drive, the Supreme Court under Sabharwal demonstrated extraordinary zeal in demolishing a slarge number of commercial properties which were illegally running in residential areas. There were very extensive protests every day, and considerable political pressure, due to which demolitions would often be hindered. The court monitored events and regularly reprimanded the Municipal Corporation of Delhi for its tardy progress. As a consequence of the extensive bulldozing of buildings, legal commercial properties, as in the new shopping malls, rose dramatically in price[3]. Particularly, luxury store owners and other upscale businesses were very keen to get into the limited mall floor space.
In May 2007, five months after Sabharwal retired from the bench, the afternoon newspaper Mid-Day brought out a series of articles that presented documents showing that YK Sabharwal's sons, Chetan and Nitin Sabharwal, owned at least four small ventures, most of them oriented towards garment exports, but one in the construction arena. During Sabharwal's tenure as Chief justice, two of these firms suddenly attracted the interest of the very largest players in the shopping mall industry.
The first firm, Pawan Impex, Pvt Ltd, was registered for some time at Justice Sabharwal's official bungalow in the heart of Delhi, and later at his private house. Having the firm registered at his government-furnished house may have been illegal[4]. In a newspaper editorial on Sept 2, 2007, Justice Sabharwal has said that he asked his sons to shift the registered address as soon as he found out about it[5], but in an interview recorded by Mid-Day in April 2007, after the shift, he claims complete ignorance about the matter[4].
More damaging is the fact that Pawan Impex, which had remained with a capitalization of 0.1 million Rs. since its founding in 2002, suddenly attracted the interest of Kabul and Anjali Chawla, owners of the large and rapidly growing real estate firm Business Park Town Planners (BPTP)[6] which had promoted large malls like Park Centra (Gurgaon), Next Door (Faridabad), and the Parklands Shop-In Park (North Delhi). In June 2006, at the peak of the Supreme Court interest in the 2006 Delhi sealing drive, the Chawla's invested in Park Impex, raising the Share Capital 300 fold to Rs. 30 million, with equal shares between the original promoters and the Chawlas[7][8]. Two months later, in August, the company obtained a loan of Rs. 280 million by a bank which happens to be a tenant of a BPTP property. These allegations appear to be well documented in a set of papers released by the Campaign for Judicial Accountability[9] and were not addressed in Justice Sabharwal's public response[5], though he did mention that his sons were creating an IT Mall. After the partnership with BPTP in June 2007 Pawan Impex purchased 4 acres (16,000 m2) of land in NOIDA on which this IT Mall is being constructed; Mid-Day reports it to be a Rs. 560 million project with 300,000 sq ft (28,000 m2). saleable floor area[2].
A second firm, Harpawan Constructors, equally unknown, had also been promoted by the brothers. In October 2005, the promoters of Filatex India, a polyester yarn firm with a turnover of Rs. 3 billion in FY 2007, Purshottam and Madhu Sudan Bhageria, also the owners of real estate firm Fargo Estates, invested in Harpawan. Subsequently, the Bhagerias announced plans for developing the Square One, a mall devoted to luxury brands in Delhi. Justice Sabharwal has said that Purshottam Bhageria was his son's childhood friend, and that Harparwan Construction, despite its name, has not made any real estate or other investments[5].
The business of Chetan and Nitin expanded dramatically after 2005. Besides setting up several garment manufacturing factories, they have embarked on a massive real estate programme in NOIDA.
Possibly the largest project for Pawan Impex is the Rs. 560 million IT Mall being constructed in Noida. In the application to construct this mall, they had given the turnover and business of their company as "Nil". Their application for constructing this mall was approved rather mysteriously, given that in the application they had declared their company to be "Nil turnover" and "Nil business"[4]. An earlier applicant, Softedge Solutions, had been rejected on the ground that they could not satisfactorily answer questions about their previous experience in IT and their technical tie up. But Pawan Impex represented by Chetan Sabharwal with Nil business, no previous track record in IT and no technical tie up, managed to obtain permission. [4]
[edit] Conflict of Interest charges
Whatever the facts of the case, it is widely felt that Justice Sabharwal's being active in such decisions when his sons were even partly involved in the Delhi real estate business lacked propriety, and that he should have recused himself from these cases. To the contrary, the Outlook (magazine) printed a report claiming that he had "called for and dealt with the sealing of commercial property cases in March 2005, though it was not assigned to him."[4].
The actions have been condemned as being at best improper and at worst an attempt "to benefit his sons who entered into partnerships with shopping malls and developers of commercial complexes"[10]. Former Solicitor General KK Sud called this behaviour "the height of indiscretion."[11]
In terms of the content of the charges, the most damaging aspect is the participation of the shopping mall construction giant BPTP in his son's export-import business. Both the Chawla's were on the board of the firm by early 2005, around the same time that Sabharwal started taking interest in the demolition drive. What is surprising is that while Justice Sabharwal in his justification[5] addresses the other two (lesser) charges in some detail, but he is completely silent about the BPTP connection.
[edit] Jail term for two Journalists, cartoonist, publisher
In September 2007, four Mid-Day journalists were sentenced to prison by the Delhi High Court for contempt of court (making such allegations about an ex-judge)[12]. The scribes said: "We stated facts in our stories. (in the articles relating to former Chief Justice of India Y K Sabharwal) and that is why we should not be hauled up for contempt. The laws in the country are outdated." The contempt laws in India do not rely on truth as the primary test for judging contempt. The columns were also somewhat tongue-in-cheek, accompanied also by a cartoon (the cartoonist has also been sentenced to four months in jail).
Justice R S Sodhi and Justice B N Chaturvedi of the Delhi High Court, in their judgement, said: "We feel, in this peculiar case, the contemnors have tarnished the image of the highest court and the sentence of four months' imprisonment would serve the justice." M K Tayal, senior journalist, said, "The judges did not go into the merits of the argument. They did not apply their minds while delivering the judgement."[13]. "The Supreme Court in its judgement has clearly laid down the Laxman Rekha which we feel the publications have crossed." (The Laxman Rekha is a Ramayanic reference to a line that should not be crossed). However, the defendants had already processed their bail requests from the Supreme Court, and they were immediately released on bail. Tayal and three others are no more associated with Mid Day. It appears that the management of the newspaper compromised with Sabharwal and BPTP. Tayal, a former Indian army officer, objected Mid Day's policy of refraining from exposing more about the dealings of ex-CJI. Mid Day's MD Tariq Answari had written a note regarding the newspaper not carrying any more article on Sabharwal.
About the judgement, ex-law minister Shanti Bhushan stated that Parliament had in 2006 amended the Contempt of Courts Act to say that "if the allegations against a judge were found to be true, then they would not be considered contemptuous". In view of this, the judgement, he said, may be "only aimed at terrifying the media and an attempt to curb truthfulness."[10]
In any event, the decision of four months imprisonment for the reporters, without establishing the falsity of the reportage, has only brought the matter into far more intense public scrutiny.
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