Scandal season

by Animesh Sharma | December 17, 2011

A burning scandal accompanied winter to the Punjab and Haryana High Court, instantaneously becoming the talk of the corridors. The front-page headline in the December 6 national edition of the Indian Express broke the story of the investigation that the newspaper conducted into the transfer of Justice Mohinder Pal of the Punjab and Haryana High Court. While the story itself caused a great stir in the Bar and the Bench, the statements that appeared in the story, made by the judges of the High Court including the Chief Justice, were unprecedented.

According to the report, in October 2011, Justice Mohinder Pal had been informed that he was being transferred to the Gujarat High Court in the ‘public interest’. Reports had suggested that Justice Pal had then sought the reasons for him being transferred from the Apex Court collegium. According to the Express, the reason behind Justice Pal’s sudden transfer was the unusual haste with which he had issued an order in a Gurgaon property case asking the Haryana Urban Development Authority (“the HUDA”) to allot 9.527 acres to M/s. Orchid Infrastructure Developers Private Limited (See, Orchid Infrastructure Development Limited v. HUDA, RSA No 14 of 2011, a decision about which I will write about in my next post).

If the newspaper’s intention was to sensationalise (and perhaps oversimplify?) the story, they have succeeded. According to the newspaper, Justice Pal’s order set aside the sessions court’s order that had stopped this allotment, alleged an “unholy nexus” between the HUDA and the developer, and called for an inquiry by the Haryana Chief Secretary. The order, issued in just thirteen days, directed the HUDA to issue the allotment letter to Orchid accepting its bid of Rs.111.75 crores for the land put up for public auction in 2004.

Justice Ranjan Gogoi, Chief Justice of the Punjab and Haryana High Court.

Image above and on article thumbnail from the Punjab and Haryana High Court website.

The Indian Express has really put its neck on the line in this report, and has claimed that the Chief Justice of the Punjab and Haryana High Court, Justice Ranjan Gogoi, while speaking to the paper had confirmed that the order was one “major reason” behind the transfer. According to the newspaper, the conversation between Chief Justice of India S.H. Kapadia and Justice Gogoi in the latter’s words was as follows:

“On being asked, I apprised the Chief Justice of India about the glaring illegalities and irregularities, both procedural and substantive, as evident in the judgment delivered by Justice Mohinder Pal… The matter was decided without even framing substantial question of law. No formal notices were issued to the respondent party. Instead, notices were issued only to the counsel for the respondent in a case where high stakes were involved… Why was this case decided in just thirteen days when there are so many other appeals pending in the High Court for over two decades?”

The exposé gets murkier still. The Indian Express claimed that on January 3, 2011, ‘Orchid’ had approached the High Court to make an oral request for immediate listing of its case to then Chief Justice Mukul Mudgal in his chambers. At 3 p.m., less than an hour before his retirement, Justice Mudgal passed an order saying “list (the case) as per roster before Justice Mohinder Pal” on January 4. The newspaper had also interviewed Justice Mudgal on the matter.

“A Chief Justice is empowered to assign cases as per his choice. I do not remember exactly as to why did I assign the case to Justice Mohinder Pal. I believe that since the number of ordinary cases listed before Justice Mohinder Pal was less on January 4, I assigned him the appeal.”

To make matters more interesting, the counsel appearing for ‘Orchid’ had denied the fact that an oral request was made to Justice Mudgal for the urgent hearing of the matter. Justice Mudgal calls this denial ‘a white lie’ and asserts that such a request had been made to him in his chambers, as he was getting ready to attend his farewell.

The story had its necessary and expected fallout. The executive committee of the Punjab and Haryana High Court Bar Association passed a resolution seeking appropriate action against Justice Pal. The Gujarat High Court Bar Association also came out in protest, refusing to be made a dumping ground in this situation and has opposed Justice Pal’s transfer to Gujarat.

The most interesting and unprecedented aspect of the report are the quotes of the Chief Justice himself, which the Indian Express uses to back its inference of collusion. The decision makers of the higher judiciary in India function as an almost impenetrable cartel, letting no one outside the family know how they really think. They have often been criticised for the cloaked manner of their functioning, especially with regard to the absence of clear and known parameters or criteria that determine elevations and transfers.

So when a sitting Chief Justice of the High Court and a retired Chief Justice went on record explaining controversial reasons behind the transfer of another sitting judge, the Bar’s reaction was one of shock. The advocates are yet to look at such candidness as good or bad, or right or wrong. It is difficult to believe that such public forthrightness from the High Court came about without the powers-that-be in the Supreme Court being aware of it. If it is a move towards the much-needed transparency that the courts require, then it is a welcome move. Or perhaps, as the Indian Express story seems to suggest, there is more to these disclosures than meets the eye because the Justice Pal controversy seems far from over.

Animesh Sharma is an advocate at the Punjab and Haryana High Court.