Justice dept cites 'immunity' for inaction in ex-CJI case

NEW DELHI: In a controversial interpretation of law, the justice department has cited an immunity clause for sitting on a corruption complaint forwarded to it by the Central Vigilance Commission against former chief justice of India Y K Sabharwal. Responding to an RTI query about Sabharwal's case, the justice department on June 30 invoked Section 3(i) of the Judges (Protection) Act 1985 which bars courts from entertaining any civil or criminal proceedings against a sitting or retired judge "for any act, thing or word committed, done or spoken by him when or in the course of acting or purporting to act in the discharge of his official or judicial duty or function." Since this immunity is essentially meant to protect a judge from litigants aggrieved with his orders, it is doubtful whether the same provision can also be used to protect Sabharwal against the allegation that his orders in the Delhi sealing drive case had benefited the real estate business of his sons. In his detailed documentation before the CVC and CBI, advocate Prashant Bhushan alleged that while Justice Sabharwal's bench relentlessly took action against commercial premises in residential areas, his sons, Chetan and Nitin, had entered into partnerships with big mall and commercial complex developers. Given the conflict of interest brought out by the complaint at the highest level in the judiciary, the government should have immediately taken cognizance of it under a caveat attached to Section 3(i). For, Section 3(ii) says that nothing in Section 3(i) shall "debar or affect in any manner" the power of the government or courts to take civil or criminal action against "any person who is or was a judge." Instead, on the RTI application of Delhi resident Subhash Chandra Agrawal, the government, while acknowledging that the CVC had forwarded Bhushan's request to it for "appropriate action," made a sweeping statement that "judges are protected under the Judges (Protection) Act 1985." Despite the scope available to take action against Justice Sabharwal even after his retirement, the justice department said, "No specific provisions have been made in the Constitution for dealing with allegations against retired judges of the Supreme Court and high courts. There is no designated authority which has competence to look into the charges levelled against retired judges." While pleading helplessness in the matter pertaining to Sabharwal and his sons, the government sought to display its concern for judicial accountability by pointing out that it had introduced a Bill in the Lok Sabha last year for empowering a judicial forum to deal with complaints against judges. But the Judges (Inquiry) Bill 2006, in its present form, does not hold retired judges to account.
3 Jul 2008, 0054 hrs IST, Manoj Mitta,TNN
http://timesofindia.indiatimes.com