Senior counsel Dushyant Dave delivers assured performance in very tricky situation in SC today

The suicide note of former Arunachal Pradesh chief minister, Kalikho Pul, has landed the apex court in a bit of a dilemma, with its decision to judicially hear as a writ petition the letter written by his widow, Dangwimsai Pul, backfiring today, as we had reported.

The closure of the Arunachal Pradesh case by the Supreme Court had been an occasion for a nice bit of banter by the judges on 29 September of last year.

Little did they know then that the case would boomerang back to them like this, only five months later.

Kalikho Pul had committed suicide on 9 August last year. But his suicide note appears to be making waves only now. Are the note and the delay in publishing it, like his suicide, not suspicious?

Well, one could say that.

(Read PDF and English translation of suicide note here, courtesy of The Wire.) In retrospect (and with all due respect to the late Mr Pul), his purported suicide note (if it is indeed genuine) makes him appear as a somewhat naive politician who could not digest the loss of power due to a judicial dictat.

By contrast, Pul’s rebellion against the then chief minister, Nabam Tuki, had conveyed the impression that Pul was anything but naive.

Kalikho Pul had brought down Tuki, and became the chief minister on 19 February 2016 with the help of the then-governor, Jyoti Prasad Rajkhow, and the central government, which revoked President’s rule after three weeks, which had enabled Pul to be sworn-in as Arunachal Pradesh chief minister.

But on 13 July 2016, the Constitution bench which had heard multiple challenges to the game of thrones in the state, delivered a verdict, reinstating Tuki.

Although Tuki made way for Pema Khandu, the present chief minister, to be sworn-in to ensure party unity, Kalikho Pul could apparently not quite reconcile himself to the Supreme Court having played a role in all this. Khandu and his entire group of supporting MLAs, had quit the Congress and merged with a regional party, and later merged with the BJP.

That Kalikho Pul committed suicide on 9 August, within a month of the Arunachal Pradesh verdict, and purportedly left a 60-page note in Hindi, affixing his signature on every page and to every correction, suggests that the note’s objective was something more than merely stating the reasons for his suicide.

And the timing of the disclosure of the suicide note, six months after Kalikho Pul’s death, is also suspicious.

What exactly is in the suicide note that so threatens the credibility of the Supreme Court?

It alleges details of bribes paid to and sought by judges.

Justice Khehar, the note alleged, used his son to strike a deal to take Rs 36 crore (or therabouts) in order to deliver a wrong judgment. The allegation, which has so far remained under wraps in most media reports other than the Quint, which has gone into it. Earlier today in the afternoon, Dave again disclosed the allegation in the course of his oral submissions before the two-judge bench of the Supreme Court.

The truth of the allegation seems unlikely, but the fact that it’s out there means it may be more damaging if it is not investigated properly.

Couldn’t the suicide note have been the result of frustrations of Kalikho Pul, after having lost power due to the Supreme Court’s verdict?

It’s indeed quite possible.

But the note, which is on par with a dying declaration, has to be investigated, to verify the truth and dispel any suspicions.

The note has not been investigated at all so far?

Yes. That is why the Chief Justice of India, JS Khehar, acting on the administrative side, in response to the letter written by Kalikho Pul’s widow Dangwimsai, ordered ​listing of the case, so that it can heard judicially, with a direction given for registration of FIR, which would be binding. ​ ==Had the bench judicially directed registration of FIR, after hearing it judicially, it would have been binding. So that would have been in the interest of Mrs Pul, no?

The problem is if the court monitored the case judicially, after directing registration of an FIR, Mrs Pul would not be able to pursue other remedies, available to her, if she was not satisfied with the progress of investigation that was being monitored by the court already.

What is the distinction between judicial and administrative sides of the Supreme Court?

Well, the CJI is also the administrative head of the judiciary. As the administrative head, he decides what bench will hear any matter in the Supreme Court.

When a bench hears a matter on the judicial side, its orders are final, and have to be complied with. On the administrative side, the Supreme Court’s decisions are not so very binding, especially if other organs of state are dealing with it.

What do you mean, the SC administrative side is not binding?

A recent example is the decision of the in-house committee on the allegations of sexual harassment against a judge of the Madhya Pradesh high court. The committee found the judge innocent, but another committee set up by the Chairman of the Rajya Sabha, under the Judges Inquiry Act to probe the allegations, is continuing its work.

The in-house committee report is a result of the administrative decision of the CJI, to set it up.

So, today’s listing of the case before the Supreme Court was an attempt to hear it judicially, right?

That’s right.

That is why it surprised everyone, including Dangwimsai Pul’s lawyer, Dushyant Dave, who was caught somewhat unawares.

He told the court that Mrs Pul had got a call from the registry only in the evening yesterday regarding the listing of the matter from a mobile number she had stored on her phone. Dave questioned how the registry could list it for hearing, when the matter was to be dealt with on the administrative side, as per the Supreme Court’s judgment in K Veeraswami v Union of India from 25 July 1991.

So, the SC registry apparently listed the case under instructions from the CJI?

That is what Dave questioned today.

The CJI, against whom Kalikho Pul had made allegations in his suicide note, ought not to have instructed the Registry to list it for hearing on the judicial side, Dave suggested.

And the bench had nothing to say to this?

The bench listened to Dave, and said that it was hearing the case because it was listed under the CJI’s instructions, and hinted that if Dave wanted the case to be closed, he was free to withdraw the petition.

Dave, for his part, said he would withdraw the case, if the bench persisted in hearing it, despite his reservations.

So in a sense, Dave had no option but to withdraw the case, right?

Yes.

Dave sought recusal of the bench because he said Justice Goel had been Justice Khehar’s colleague at the Punjab and Haryana high court. Dave probably referred to this, because he thought it could help him to avoid a hearing if the bench brushed aside his objection regarding judicial-administrative side distinction.

But if the bench had complied with Dave’s request for recusal, then the case would have gone before another Supreme Court bench, though again on the judicial side; this would have been equally problematic for him and his client Mrs Pul.

And the bench didn’t agree with Dave, right on this?

That’s right. The bench dismissed the case as withdrawn, as it was an easy way out of the dilemma that was staring the bench into its face.

But the dilemma may have just begun to unfold, right?

True.

There were no answers to Dave’s intriguing questions on how the SC registry listed it before court number 13, of all courts, and that too, that it was to be heard at 1:30 p.m. during the lunch hour, which is highly unusual.

So what was the gossip in the corridors outside court room 13 today?

The gossip goes that it is incredible that the allegation against the CJI Justice Khehar, as mentioned in the suicide note, could be true.

But Dave’s articulation of the whole issue in terms of judicial-administrative distinction, and the need for this bench to recuse itself, had made a profound impact, with everyone admiring Dave for his statesman-like representation of his client.

Dave said he would like to believe that the allegations in the suicide note were wrong, but he would also like to pursue other remedies, because the accused also included the President of India and others. Dave also said his client’s letter – which was incorrectly converted to a writ petition by the Supreme Court of its own accord – may well be wrong on the facts, but that he was entitled to pursue all available remedies.

What were Dave’s last words today?

How did you know? Dave indeed did deliver a Parthian shot at the end of today’s hearing in room 13. He said that he had met a former judge of the Supreme Court yesterday, who had disclosed shocking things, which he would not like to disclose in the court.

He also said if the bench heard and passed an order on the judicial side, it would compromise the court’s credibility as an institution, and that he was concerned with that. He almost begged the bench not to do it, making an emotional appeal.

No one expected the bench to ignore his appeal after that.

Is there anything in the Veeraswamy judgment that would say the SC’s decision to hear it on the judicial side was wrong?

The SC said in that judgment that judges of high and apex courts are public servant, and can be prosecuted under the Prevention of Corruption Act. The SC also held that prosecution of such a judge facing allegations of corruption could be launched after obtaining sanction of the competent authority.

Dave brought attention to the part of that decision stating that if the CJI himself was the person against whom the allegations of criminal misconduct were received, the government should consult any other judge or judges of the Supreme Court.

The judgment said that there should be a similar consultation at the stage of examining the question of granting sanction for prosecution and it should be necessary and appropriate that the question of sanction should be guided by and in accordance with the advice of the CJI.

Who was Justice K Veeraswami?

He was the former Chief Justice of the Madras High Court, and father-in-law of Justice V Ramaswami of the Supreme Court, was was the first judge to face impeachment proceedings in Parliament in 1992.

Justice Veeraswami faced allegations of amassing assets disproportionate to his income. An FIR was filed against him. He then challenged the FIR, the Madras High Court dismissed his challenge and the Supreme Court eventually upheld the High Court’s decision.