More on post retirement postings of Judges, in Gujarat context

By our desk, Ahmedabad, 17 February 2013

This piece is in support of Shri Arun Jaitley’s article questioning post retirement postings of Judges. Click here

In March 2010 Delhi’s Pinoneer published an article by Abraham Thomas with the title, “It’s official:Bait Modi, get rewarded”. After reading Shri Arun Jaitley’s piece on Justice Katju, we can make a new heading, “It’s official: Bait Modi, get rewarded, or get rewarded, bait Modi”.

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Abraham Thomas in that article allotted last three paragraphs to Justice Khare, and you can read it here:

One other awarded personality who has found fault with Modi, accusing him of conniving with the perpetrators of the post-Godhra riots, is former Chief Justice of India VN Khare.

As Chief Justice, Khare had castigated Modi Government for failing its “raj dharma” of protecting the life and liberty of its citizens. On his retirement in 2004, Khare gave an interview to a leading national daily where he commented particularly on the State’s ‘collusion’ that he claimed forced him to react to the petitions filed by Teesta and her NGO. He was quoted as saying, “I found there was complete collusion between the accused and the prosecution in Gujarat, throwing rule of law to the winds. The Supreme Court had to step in to break the collusion to ensure protection to the victims and the witnesses.”

It was under him that the riot cases began to be monitored on a periodic basis and the Best Bakery case, where 21 accused were acquitted, got reopened. Khare was the recipient of the Padma Vibhushan, the second highest civilian award for his contribution in the field of public affairs in 2006.


Justice Khare was awarded Padma Bhushan which is just an award, but what Mr. Jaitley points out is post retirement postings, and it is more serious.

Look at the example of Justice Arijit Pasayat.

Supreme Court Justice Arijit Pasayat who once termed people in Gujarat’s 2002 regime as modern-day ‘Neros’, who ordered to transfer Best bakery case outside Gujarat for retrial in Maharashtra, who ordered SIT probe into Narendra Modi, his ministers role in 2002 Godhra riots just couple of days before polling in the state for Lok Sabha elections, enjoyed his last working day on Friday in the Supreme Court of India retired 9 May 2009 and was appointed as the first Chairman of Competition Appellate Tribunal (CAT) by the central government in less than two weeks after his retirement. He took a charge of this post on 20th May 2009 for five years term.

After CAT, Justice Pasayat was appointed as Chairman of Authority for Advance Rulings, Central Excise, Customs & Service Tax in 2012.

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If you are more interested about Justice Pasayat, please read this article from Pioneer by KN Bhat

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Another example is Justice Tarun Chaterjee. Justice Tarun Chatterjee and Aftab Alam had ordered CBI inquiry in Sohrabuddin encounter case. Chatterjee was given post-retirement posting. Click here

Look what Ram Jethamalani as a councel of Amit Shah in Sohrabuddin encounter case told Supreme court about Justice Tarun Chatterjee in November 2011: Jethmalani even did not spare the judge who handed over the case to CBI. He said, “How does a judge who is under investigation of CBI order the same agency to investigate?” He was referring to Justice Tarun Chatterjee, since retired, whose role in the UP provident fund scam was under investigation. “The continuation of judge and his likelihood of arrest was all at stake, for which reason he should have recused (withdrawn) from the case,” the senior counsel said, adding, “It is instances such as these that have prompted many to demand judges to be brought under the Lokpal.”

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On next day, the Supreme Court had to ask then the UPA Government to explain whether there was any nexus between the judge and the Centre behind ordering a CBI probe into the Sohrabuddin Sheikh fake encounter killing on January 12, 2010.

Former Gujarat minister of state for Home Shri Amit Shah’s lawyer Jethmalani said the Supreme Court’s January 12 order directing CBI probe into the case of Sohrabuddin fake encounter was illegal because of two events – lead judge on the bench Justice Tarun Chatterjee was under CBI scanner in the Ghaziabad district judiciary provident fund scam case and second, he was given a cushy assignment by the Centre on his retirement immediately after ordering transfer of the fake encounter probe from Gujarat Police to CBI.

Arguing against CBI’s plea for cancellation of Shah’s bail before a bench of Justices Aftab Alam and Ranjana P Desai, Jethmalani said, “Prejudice can be of two types — actual and apparent. Apparent prejudice includes any fiscal interests. The central government has provided a cushy post-retirement job (to Justice Chatterjee). That is a direct instance of fiscal interest.”

He said anyone who was being probed by CBI must have been in communication with the agency’s investigators. “Any reasonable person has cause to believe there will be a motivation to please the CBI,” he claimed.

Shah’s lawyer said he came across a terminology for the first time in the PF scam case – no prosecutable evidence against Justice Chatterjee, which was informed by the attorney general to the apex court. But CBI did send a report to the appropriate authority on this.

Further, he reasoned that when the CBI officers were constantly questioning the judge, there was a reasonable cause to believe “there will be a motivation to please the CBI”. This got proved later when the charge-sheet in the PF scam neither held the judge “guilty” or “not guilty”. Instead, “There was an inscrutable observation against him that there is no prosecutable evidence. I have not come across this word in the Criminal Procedure Code.”

Jethmalani said for this reason, his client believed that the January 12 order was a result of political conspiracy. “All proceedings before the bench on January 12 should be declared non-est(non-existent in law). It is a duty this court owes to the system. A great damage will be done if things are brushed under the carpet,” he said.

When the bench sought the Centre’s response, additional solicitor general Indira Jaising attempted to wriggle out by saying she was representing the Centre in Rubabuddin Sheikh’s writ petition and not in either the cancellation of bail or transfer of the trial outside Gujarat.

But the bench insisted for the Centre’s response. “It has been said that the whole investigation is part of a political conspiracy. He (Jethmalani) has alleged that the judge, on behalf of the party at the Centre, directed the order. It is for you to see whether it concerns you or not,” the bench said.

On the plea for transfer of the case outside the state because of surcharged atmosphere, Jethmalani said CBI’s evidence relating to 200 extortion complaints against Shah had no basis and even the bench had termed them as trash.

“Then they say there is a surcharged atmosphere in Gujarat. It is a statement that no decent citizen in this country should accept. It is the most well governed state. Yes, riots took place in 2002. But it is a forgotten affair now. You cannot stigmatize the entire judiciary of the state to seek transfer of this one case,” he said.

“They (the CBI) have become so brave and indifferent to the course of justice that they have alleged that the accused have kith and kin in judiciary. I hope the state of Gujarat may have investigated this. Even if it was true, let the CBI go to chief justice of the high court and ask him to give a judge who is not the kith and kin of any accused,” he said.

On the plea of CBI to transfer the trial against Shah outside Gujarat, Jethmalani was critical of the agency alleging that kith and kin of accused serve in the judiciary. The court directed the Centre and the amicus curiae in the case, former Solicitor General Gopal Subramanium to come prepared for arguments.

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In September 2009 Shri Amit Shah had moved a petition praying that Justice Aftab Alam should also recuse himself from hearing the case and said the January 12 order of awarding CBI investigation in Sohrabuddin encounter case passed by a Bench comprising Justice Tarun Chatterjee, who had since retired, and Justice Aftab Alam suffered from grave impropriety.

Shah said the January 12 order ought to be recalled on the ground of bias “as there is a reasonable possibility or likelihood that Justice Chatterjee, who passed the order, was biased and suffered from automatic disqualification to hear the case as he himself was under investigation by CBI for criminal breach of trust at the time he was handing over the case to CBI”.

“If Justice Aftab Alam was in the know of the fact that Justice Tarun Chatterjee suffered from automatic disqualification, Justice Alam ought to have rescued himself from hearing the case,” he further pleaded.

Shah said CBI was brought into the case “by a conspiracy involving different institutions” and had carried out an unfair and illegal probe as an instrument of the central government to enable the Centre to wreak political vengeance on him and the Narendra Modi government.

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About the corruption case involving Jusice Tarun Chatterjee read here: Click here

The Central Bureau of Investigation (CBI) had recommended action against a former Supreme Court judge Tarun Chatterjee and 23 other judges for their role in the infamous multi-crore Ghaziabad provident fund (PF) scam. A foolproof case could not be built against several judges including Chatterjee because of the mysterious death of the main accused and bill clerk Ashutosh Asthana. Asthana, who died under mysterious circumstances in Dasna jail in Ghaziabad, had named several judges including Tarun Chatterjee as beneficiaries of the money illegally diverted from the state treasury in his confessional statement before a magistrate. Asthana’s family had alleged that Asthana was killed by poison in custody.Family said he was “murdered” on the instructions of powerful people involved in the scam.

India Today in its report quoting the CBI sources said, it had questioned Justice Chatterjee at his residence towards the end of 2008 while he was a Supreme Court judge, after seeking permission from the then CJI K. G. Balakrishnan. The article further said: The CBI, sources said, had questioned Justice Chatterjee at his residence towards the end of 2008 while he was a Supreme Court judge, after seeking permission from the then CJI K. G. Balakrishnan. Sources said a CBI team went to Chatterjee’s official residence and questioned him on Asthana’s statement before a judicial magistrate. Asthana had alleged that household goods were purchased and transported from Ghaziabad to his house in Kolkata. The CBI had also questioned Justice Chatterjee’s son Anirudh Chatterjee in Kolkata on allegations that he had accepted a laptop and a mobile phone. Though Justice Chatterjee denied the allegations during questioning, the agency, sources said, was able to match the handwriting on the bills to a relative of the former apex court judge. The ex-SC judge had, however, claimed that he had foot the bill himself and had exhibited photocopies of a cheque he had given to the shopkeeper as proof, sources said.

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In August 2010, Amit Shah’s lawyer Ram Jethmalani sought recall of the court’s order for the CBI probe in the Sohrabuddin encounter case by disclosing that that the judge who passed the order was himself under CBI scrutiny. Read Pioneer dailys’ Abraham Thomas’s reporting here on the courtroom drama on that day:

“Its terribly embarrassing but true that evidence has come to our possession that a conspiracy was hatched at the highest levels of politics of the country to destabilise the Gujarat Government,” Jethmalani said, referring to the January 12, 2010.

“Its terribly embarrassing but true that evidence has come to our possession that a conspiracy was hatched at the highest levels of politics of the country to destabilise the Gujarat Government,” Jethmalani said, referring to the January 12, 2010

order passed by a Bench of Justices Tarun Chatterjee (since retired) and Aftab Alam for CBI probe.

Appearing for former Gujarat Minister Amit Shah, Jethmalani said there was a clear link between the order and a pending investigation against the judge, named an accused in the PF scam. “Mr Justice Chatterjee was himself being investigated by the CBI. It was thoroughly improper for him to have heard the case.”

After a spell of dead silence that followed Jethmalani’s sensational charge, Solicitor General Gopal Subramanium, amicus curiae in the case, said,

“Don’t make such allegations against judges. It is unfortunate since this was never pointed out that day by the senior counsel representing the State (Gujarat).”

When Jethmalani replied that the information came in his way only later, the veteran lawyer found himself under attack from the court. “Your statement has hurt me and it would hurt your reputation most being a senior lawyer,” said Justice Alam. Jethmalani remarked, “I have no reputation to lose…and if by arguing this way my reputation is gone, so be it.”

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This piece was an attempt to put all Gujarat related recent relevant references on one page in light of Mr. Jaitley’s article questioning Justice Katju’s post retirement posting.

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