K G Balakrishnan’s disproportionate assets case withdrawn, asked to approach the “appropriate authorities”
Today’s withdrawal of the writ petition filed in the Supreme Court by the NGO, Common Cause, seeking investigation by a Special Investigation Team into allegations of disproportionate assets of the relatives and associates of the former Chief Justice of India, K. G. Balakrishnan has surprised observers.
The writ petition, filed in 2013, was at one stage, keenly heard by the present CJI, Dipak Misra, when he was among the first five senior Judges of the Court. In fact, Justice Dipak Misra used to goad the Centre to get to the bottom of these allegations, even when the latter was reluctant to do so.
Justice Balakrishnan retired as the CJI in 2010. The petition withdrawn today is the second petition filed by Common Cause in this regard. Its first petition, filed in 2012, was disposed of by the Supreme Court with a direction to the Centre to reply to the representation of Campaign for Judicial Accountability and Reforms (CJAR), which had made serious allegations against Justice Balakrishnan, when he was the Chairman of the National Human Rights Commission (NHRC).
When this petition was filed, Justice Balakrishnan was the Chairman of the National Human Rights Commission, and therefore, the petition sought his removal from the office of the Chairman. When the petition was likely to be become infructuous with the completion of tenure of Justice Balakrishnan as the Chairman of the NHRC on May 11, 2015, Common Cause amended its writ petition, seeking an investigation by the SIT or CBI last year.
In the petition, detailed evidence against Justice Balakrishnan about alleged amassment of benami properties and disproportionate assets in the names of his relatives and associates was provided. Income tax assessment details of the relatives of Justice Balakrishnan were also annexed with the petition.
The Department of Justice stated that it could not initiate any enquiry against a retired Chief Justice because there is no such provision under the Judges (Inquiry) Act, 1968.
The CJAR, in its memorandum to the President on April 4, 2011, alleged that Justice Balakrishnan owned benami properties in the names of his daughters, sons-in-law and brother; secondly, he allegedly got allotted benami properties from the Chief Minister of Tamil Nadu in the name of his former-aide, M. Kannabiran; thirdly, CJAR alleged that he approved evasive and false replies to an application under the Right to Information Act filed by the RTI activist, Subhash Chandra Agarwal, relating to declaration of assets by Judges of the Supreme Court. Fourth, the CJAR alleged that he resisted attempts to stop the elevation of Justice P. D. Dinakaran to the Supreme Court, despite allegations of land-grab, encroachment and possessing assets beyond his known sources of income; and lastly, CJAR alleged that he suppressed a letter written by a Judge of the Madras High Court, alleging that the then Union Minister, A. Raja had tried to interfere in his judicial functioning.
The Supreme Court had held that these allegations ought to have been forwarded to the Supreme Court, for an enquiry into the matter.
When Common Cause prayed in its petition for a writ of mandamus requiring the President to make a reference to the Supreme Court under Section 5(2) of the 1993 Protection of Human Rights Act, for holding an enquiry against Justice Balakrishnan, who was then the Chairman of the NHRC, the Supreme Court had declined it. The Court cited Section 5(2) of the 1993 Act, to hold that the first step contemplated under that provision is the satisfaction of the President of India. It is only upon his satisfaction that a reference can be made to the Supreme Court for holding an enquiry, the Court had held, adding that his satisfaction is, in turn, based on the advice of the Council of Ministers.
Nevertheless, the UPA Government responded to Common Cause stating that the functions of the NHRC cannot be said to be an elongation of the judicial functions which Justice Balakrishnan discharged in the Supreme Court as the CJI, and therefore, his conduct as the CJI does not appear to be a relevant ground for making a Presidential Reference to the Supreme Court under Section 5(2) of the PHR Act, 1993.
It is against this stand of the Centre in 2013, that Common Cause filed the petition in 2013. It was urged in the petition that misbehaviour would extend to conduct of the judge in or beyond the execution of judicial office. It was pointed out that in the case of Justice Soumitra Sen of Calcutta High Court, even though the allegation was regarding appropriation of Rs.32 lakh as a court-appointed receiver in 1993, still reference was made by the President to the Supreme Court to inquire into this allegation. On the basis of the findings of the Inquiry Committee, the Chief Justice of India recommended the removal of Justice Sen, which led to his impeachment by the Rajya Sabha, and his subsequent resignation, before Lok Sabha could impeach him.
Therefore, it was pointed out that the prior conduct of the Chairperson/Member of NHRC remains germane for making a Presidential reference under Section 5(2), of PHR Act.
Today’s proceedings show that the bench of Justices Arun Mishra and Mohan M.Shantanagoudar, described the filing of the petition as premature, because there has been no First Information Report, which has been registered so far in the matter. Thereupon, the petitioner’s advocate, Prashant Bhushan withdrew the petition, with liberty to approach the appropriate authorities.
The matter was heard 12 times since August 26, 2013. Initially, Justices B. S. Chauhan and S. A. Bobde heard it. On January 27, 2014, Justices B. S. Chauhan and J. Chelameswar, heard it. Justices Dipak Misra and Prafulla C. Pant began to hear it from September 15, 2015 onwards. On November 17, 2015, Justices Dipak Misra and Shiva Kirti Singh heard it. On July 12, last year Justices Dipak Misra and C.Nagappan, heard it.
On October 18 last year, a three-Judge bench of Justices Dipak Misra, Amitava Roy and A. M. Khanwilkar, heard it, when a chart indicating the income tax assessment of individuals associated with Justice Balakrishnan, was handed over to the Court by the then Attorney General, Mukul Rohatgi, which was in turn handed over to Prashant Bhushan. The bench requested the AG to make available other documents for its perusal.
On February 13 this year, another bench of Justices Dipak Misra and R. Banumathi, heard it. On April 21, it was again listed before a three-Judge bench of Justices Dipak Misra, A. M. Khanwilkar and Mohan M. Shantanagoudar.
It is inexplicable how the premature nature of the petition did not strike any of these Judges who had heard it earlier.