Mistaken identity or careful strategy: when Rs 15 lakh landed at the doorstep of a high court judge and she disowned it

Justice versus Judiciary
Justice Enthroned or Entangled in India?
Book Excerpt 

A sensational cash-at-judge-door scam was another ignominious chapter in the history of the higher judiciary. A bribe of Rs 15 lakhs was delivered at the residence of Justice Nirmaljit Kaur of the Punjab and Haryana High Court in Chandigarh on 13 August 2008, though it was allegedly meant for her namesake, Justice Nirmal Yadav. As soon as Justice Kaur found the money in a sack, she informed the High Court chief justice and the police registered an FIR against three people.239Times of India, 18 August 2008. The money was delivered by Prakash Raj, clerk of Sanjeev Bansal, then additional advocate general of Haryana. Bansal was allegedly paid a huge amount by one Ravinder Singh, a Delhi-based businessman, to settle a criminal case pending in the High Court. Reportedly, it was a case of mistaken delivery. The CJI constituted an in-house three-judge committee to probe the case.

S.F. Rodrigues, the governor of Punjab, who was also Chandigarh’s administrator general, recommended a CBI probe into the scam after consultations with the then High Court Chief Justice, Tirath Singh Thakur. The CJI allowed the CBI to question the two judges. The in-house committee comprising Justice H.L. Gokhale, then chief justice of the Allahabad High Court, Justice K.S. Radhakrishnan, chief justice of the Gujarat High Court and subsequently elevated to the Supreme Court, and Justice Madan Lokur of the Delhi High Court, concluded in December 2008 that the cash payment made at Justice Kaur’s door was actually meant for Justice Yadav.

The controversy got murkier as Justice Yadav, in a letter to then CJI, K.G. Balakrishnan, cast personal aspersions against the other judge under suspicion. After receiving notice from the CJI, Justice Yadav replied that Justice Kaur was given a clean chit as she was close to a Supreme Court judge who was present in her house when the cash was delivered at her doorstep. She even alleged that the Supreme Court judge had an illicit relationship with Justice Kaur which was the reason the Supreme Court probe committee absolved her. ‘The almost two-decade old liaison between the Judge of the Supreme Court and the Judge at whose residence cash was delivered, has been talk of the town for all these years. It is on this ground that the SC Judge’s wife sought divorce,’ said the letter. She added, ‘The committee itself records that a Judge of the SC and a senior Judge of the High Court may have been present in the house at the time of delivery of the cash.’240‘Justice Yadav Casts Personal Aspersions on Fellow Judge’, Deccan Herald, 13 January 2009. According to Yadav, the committee’s finding on the presence of two other judges on the spot was borne out by call records from their mobile phones. Following the cash delivery, the Supreme Court judge’s son, for instance, made five calls to lawyer Sanjeev Bansal, who is alleged to have sent the money at the instance of the businessman Ravinder Singh.

In her second reply to the CJI dated 27 January 2009, she refused to depose before the committee, ‘I have a right to reject the report as the same has been conducted in a lopsided manner. Unless an enquiry is ordered into all allegations against all judges concerned, I refuse to submit to such informal procedure … The proposal of in-house procedure was rejected by the Full Court of Punjab and Haryana High Court. Therefore, it does not have any binding force.’241‘Justice Yadav Denies Involvement in Cash Delivered at Justice Kaur’s Residence’, The Hindu, 31 January 2009. She said that Prakash, who delivered the money, told the committee that he knew Kaur and it was not a mistaken delivery, but his statement was conveniently ignored.

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Ultimately, after about 15 months, Justice Yadav was cleared by the Supreme Court collegium headed by CJI K.G. Balakrishnan.242‘Nirmal Yadav Gets a Clean Chit’, The Hindu, 7 November 2009. The collegium accepted the Union Law Ministry’s report which said that no case was made out to prosecute her and there was ‘insufficient evidence’ of the involvement of the judge in the scam. The CBI sent its preliminary report to then Attorney General Milon Banerjee, who stated that there was insufficient evidence to initiate prosecution against Justice Yadav. The Law Ministry concurred with the attorney general’s opinion. It dropped the move to prosecute her and conveyed this to the CJI. The CBI’s volte face in the case to petition to the Court to close the case was based on the opinion of not just the law minister, Veerappa Moily, but also the CJI, K.G. Balakrishnan. Citing the discussion on the matter with Moily and Justice Balakrishnan, the CBI filed the closure report.243‘CBI Cites CJI to Close Graft Case’, Times of India, 26 December 2009. The decision to close the first-ever case of judicial graft involving a huge cash recovery flew in the face of the breakthroughs achieved by the Chandigarh police which originally investigated the case in August 2008 and Justice Yadav’s indictment in December 2008 by the in-house committee appointed by the CJI himself.

The collegium then took the decision to transfer her to the Uttarakhand High Court. The question then arose: for whom was the cash meant. The judges committee exculpated Justice Kaur and no evidence was found against Justice Yadav. But Yadav herself levelled serious allegations against Kaur. Then was she guilty of perjury? Besides, why was Justice Yadav transferred if she was not guilty? Then all of a sudden, the new CJI, Justice S.H. Kapadia, reviewed the decision of his predecessor Justice Balakrishnan and okayed the prosecution of Justice Yadav, and President Pratibha Patil granted the sanction for her prosecution on 28 February 2011, the day she was to retire. Thus, she became the first judge of the higher judiciary against whom sanction of prosecution was granted. She challenged the sanction on the ground that Justice Kapadia had no power to review the decision of his predecessor, and sought the quashing of the proceedings against her, but the Supreme Court refused to entertain her plea saying that Justice Balakrishnan had not denied sanction but had only commented that no action was required at the moment. A bench of Justices H.L. Dattu and Dipak Misra said the matter should not linger in the top court anymore.2446 July 2013, http://starlive24.in/news/politics/cash-at-judge-door--sc-rejects-nirmal... (last accessed on 13 October 2018). Earlier, two judges recused themselves from hearing her case. First, it was Justice Khehar who recused on 13 April 2012, and then Justice S.S. Nijjar bowed out of the hearing on 2 July 2012.245‘Cash-at-Judge Door: SC Judge Recuses from Hearing Plea’, Indian Express, 3 July 2012. On 13 September 2013, the Punjab and Haryana High Court stayed the framing of charges against Yadav. Anupam Gupta, special public prosecutor for the CBI in the case, tore into the order in a written statement:

I am deeply distressed by the High Court’s order passed today. It betrays an insensitivity to judicial corruption that cannot be viewed with equanimity. The High Court cannot have a dual approach or standard—one for judges and another for all other accused. Would the High Court have passed this order if the principal accused had not been a former High Court Judge?246The Hindu, 14 October 2013, http://www.thehindu.com/todays-paper/tp-opinion/getting-its-own-off-the-hook/article5232482.ece (last accessed on 6 January 2016).

Speaking to The Hindu, he said:

Justice Sanghi failed to observe the elementary precaution and propriety of issuing notice to the CBI and hearing it before passing the September 13 order. By requisitioning the trial court’s record, the Judge has, for all practical intents and purposes, disabled the Special Judge, CBI, from proceeding any further with Justice Nirmal Yadav’s trial for a virtually indefinite period of time. Given the practice in the High Court and the volume of litigation before it, the prospect of Justice Yadav’s petition being finally decided by the High Court within three months is far too remote to be believed. A cynic would not be wrong in assuming that, despite its gravity, the case has been put in the cold storage.247The Hindu, 14 October 2013, http://www.thehindu.com/todays-paper/tp-opinion/getting-its-own-off-the-hook/article5232482.ece (last accessed on 6 January 2016).

However, the CBI court framed charges against her after the apex court, on 3 January 2014, dismissed her plea for a stay on proceedings of the trial court and pulled her up for adopting delaying tactics. Charges were framed under Section 11 of the Prevention of Corruption Act.248http://www.news18.com/news/india/corruption-charges-framed-against-forme... (last accessed on 4 March 2017).

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