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26 May, 2007

What is the difference between Chhattisgarh and Kerala?

The following is the text of a statement issued by the Asian Human Rights Commission on May 26, 2007

Chhattisgarh and Kerala are two states in India. Chhattisgarh is a newly formed state compared to Kerala. Chhattisgarh and Kerala have nothing much in common. For example, the Chief Justice of India is from Kerala whereas judges like Mr. Jagdish Bhalla are asked to serve in Chhattisgarh.
What is so special about Justice Bhalla? Justice Bhalla is neither an activist nor a balanced judge. Like some of his counterparts in the Indian judiciary, retired and serving, Justice Bhalla has attracted criticism time and again. The criticism against Justice Bhalla is regarding his integrity.
One such incident happened in July 2006. This was in connection with the eviction of farmers in Ghaziabad district of Uttar Pradesh state. A private company wanted to set up a 3000 megawatt power generating unit in the district. This required the eviction of 2500 families, mostly farmers, from Bejhera Khurd, Kakrana, Dhaulana, Dehra and Jadaupur villages of the district. The evictees protested and prevented the company from taking possession of their property. The company tried to resolve the issue by use of force, for which it approached the state police. The state police advised the company to obtain an order from the court so that use of force could be legitimised.
The company found it difficult though, since it could not expect a court to sanction use of force to complete an illegal and arbitrary deal. However, the company found its way out by filing a petition before the Lucknow bench of the Allahabad High Court. The presiding judge was Justice Bhalla. Even though the Lucknow bench did not have territorial jurisdiction over the issue, Justice Bhalla accepted the petition filed by the company. The petition was filed after the regular working hours of the court on 7 July 2006.
Justice Bhalla directed two of his fellow judges, Justice Bhanwar and Justice S. N. Shukla, to hear the matter at their residence. Mr. Aarohi Bhalla, son of Justice Bhalla appeared for the company. Sure enough, Aarohi Bhalla had enough ‘authorities’ to be quoted to obtain a favorable order for his client on the same day. The order was issued without notice to the government. The state police was directed to provide protection to the company. Armed with the order, the company and the state police unleashed terror in the villages. Several persons were injured, houses were looted and the police opened fire upon the protesting villagers.
The Indian judiciary is often criticised for its delay. There is an alternate view however, that the judiciary in India is not appreciated for its promptness in dealing with certain cases, though it helps only 10 percent of the litigants. It is evident that the private company that approached Justice Bhalla belongs to this 10 percent and the people upon whom the police fired at was from the rest 90 percent.
Justice Bhalla did not abstain from being involved with controversies with his support to this 10 percent Indians who could approach the judiciary successfully in times of need. He himself later joined this group by purchasing a piece of land in Noida in Delhi. Land value in places like Noida is so high that only 10 percent Indians could afford to buy properties of such value. Bhalla being a judge could not afford to pay such price – legally – with his salary. Thus Bhalla’s wife bought the land in her name, that too for a paltry sum of two hundred thousand rupees.
There is nothing wrong in a judge’s wife procuring landed property. But something must be wrong if a judge like Bhalla through his wife buy property worth millions for a meager sum. It is quite natural for the President of India in such circumstances to ask for clarifications from the Ministry of Law and Justice when the Supreme Court’s recommendation for promoting Justice Bhalla as the Chief Justice of Kerala High Court was tabled before the President. The Ministry forwarded the matter for the consideration of the Supreme Court collegium for its decision.
The collegium headed by the then Chief Justice Mr. Y. K. Sabharwal cleared Justice Bhalla’s name from the controversy. In the meanwhile Justice Sabharwal retired and Justice K. G. Balakrishnan replaced him. Justice Balakrishnan is from Kerala. The current collegium however did not advice the President to transfer Justice Bhalla to the Kerala High Court. Instead the President was advised to transfer Justice Bhalla to the Chhattisgarh High Court. The senior most judge of a high court is often appointed as its chief justice. Justice Bhalla being the senior most judge at Chhattisgarh will soon become the chief justice. In these circumstances Justice Bhalla’s transfer and appointment has cast doubts in the manner in which the collegium of judges in the Supreme Court has dealt with this issue.
Appointment, transfer and promotion of judges, particularly those in the higher judiciary are often maters that lack transparency in India. A judge of a high court or the Supreme Court can only be removed through an impeachment process. The parliamentarians have showed their lack of will in the past when they were forced to deal with the case of one of the most controversial judges in the country’s history. However, the bar at that time had shown the courage to refuse to practice in the court presided by that judge.
The Supreme Court delayed taking any decision at that time too. In the meanwhile that judge was promoted as the chief justice of a high court and later elevated to the Supreme Court. However, the judge resigned putting an end to the entire issue – as far as the Supreme Court was concerned. Questions regarding whether the judge was asked to repay the taxpayers’ money that he spent illegally is yet to be answered.
When simple but important answers are not forthcoming, persons tend to exploit such opportunity, which is human nature. This exploitation is neither the product of a particular period or region. The resistance to change in such circumstances by those who could benefit by this exploitation is quite natural. In a reasonably functioning democracy the judiciary is not considered as a holly cow.
The judiciary is yet another organ of the state intended to serve the people. The very nature of this service requires the judiciary to maintain certain basic standards of which the most important is the integrity of the judges. However, judges are human beings and to err is human. What is required is the openness to correct the error and to prevent repetition of mistakes. What the Indian judiciary lack is precisely this. This among various other factors has resulted in the ordinary people resorting to other means to settle their issues.
Kerala is one of the states that is yet to be affected by armed rebellion, whereas Chhattisgarh is in the middle of it. No state organ can function without peoples’ support. The judiciary in India, if it continues to function in the current fashion will further isolate itself from the ordinary people. As of today, Chhattisgarh is a state that faces various challenges from armed uprising to lack of basic infrastructure to function. It is during these times disputes increase in number and people forced to approach the courts seeking justice. However, when the courts are presided over by judges with tainted integrity where else should the people look to? Probably this is one of the sources where from those who take up arms find their justification and support.
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

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