When sitting or retired judges seek the allotment of personal houses from the government, this gives rise to a fatal conflict of interest
A recent order of the Gujarat High Court issuing notices to 27 judges of the High Court, the Revenue Department of Gujarat, and the Collector, Ahmedabad, on the issue of the 2008 allotment of residential plots to sitting and retired judges, has raised uncomfortable questions for the state government as well as the judiciary. The order was prompted by letters written by two retired judges, Justice BJ Sethna and Justice KR Vyas alleging irregularities in the allotment of residential plots to sitting and retired judges by the state government and its agencies. These letters were not entirely motivated by public interest, since Justice Sethna’s letter, in particular, questioned the suitability and size of the plot provided to him.Two days later, on August 12, the Gujarat High Court order was stayed by a bench of the Supreme Court led by the Chief Justice, calling it an order passed in “mortal hurry”. The CJI might well have been right— the suo motu nature of the order, the taking of 27 judges by name and the fact that the HC Chief Justice who issued the order was on the verge of retirement, makes its motivations suspect.
The fact remains, however, that the Gujarat matter raises troubling questions regarding the closeness of the judiciary and the executive, not just in Gujarat but elsewhere in the country as well.
At the heart of the Constitution is the doctrine of separation of powers between the judiciary and the government. How can the judiciary be expected to take up scams involving out of turn or cheap land allotments to journalists, media houses and bureaucrats,or adjudicate independently in the thousands of cases where the government is a litigant, when its members are themselves negotiating with the government for post-retirement personal residences? If the separation of powers becomes a tool to be used selectively, when it suits judges, then the independence of the judiciary gets undermined.
Different functions, different expectations
The allotment of housing/residential plots to certain officials, owing to the nature of their office, is common.The Central Government Employees Welfare Housing Organisation provides welfare housing service to serving and retired employees of the Central government; similarly, housing schemes for the benefit of serving and retired railway employees are taken care of by the Indian Railway Welfare Organisation.
For sitting High Court judges, the allotment of an official residence is governed by the High Court Judges (Salaries and Conditions of Service) Act, 1954. This provides every High Court Judge the use of an official residence without rent. Neither the Act nor its rules address the issue of the personal residence of either a sitting or retired High Court judge. Judges, like any other class of society, are free to form their own co-operative housing groups and apply to the relevant land allotment agencies—like the DDA, for example—but these are or should be processed and approved by seniority of application. If judges acting individually or collectively seek or receive preferential treatment from the government concerned, there is always the danger of an unstated quid pro quo.
Governments of all shades have tried to bribe the press with cheap land allotments, a practice that the Press Council has frowned upon as detrimental to the media’s watchdog function. Surely, the same principle should apply to the judiciary.
The judiciary’s conflicting stand
The absence of any established practice with regard to providing personal residential accommodation to sitting as well as retired High Court judges has provided fertile ground for controversy. Different state governments have, accordingly, devised different arrangements. For instance, in 1992, the Rajasthan Housing Board opened a special registration in its already existing Mansarovar Housing Scheme, exclusively for sitting judges of the High Court of Rajasthan. Not surprisingly, this special arrangement was made following a request by some sitting judges to the then Chief Minister of Rajasthan in this regard.
However, allotments to judges under this scheme were challenged for being out-of-turn, arbitrary and discriminatory. In a July 5, 1997 order, a single judge of the Rajasthan High Court held that the judges should have maintained their distance from the executive and should not have approached the “biggest litigant”, the state government, for a “favour”. The single judge in his order did not mince his words when he described the allotment as “largesse” from the state government to the High Court judges, and ordered an inquiry.
Subsequently, however, a division bench of the Rajasthan High Court in NK Bairwa v. Sripal Jain (1997) 1 RLR 129, stayed the operation of the single judge’s order. The division bench did not find any arbitrariness in the allotments made by the government, and did not find the scheme for judges any different from a scheme formulated for any other interest group. The jury is still out regarding the validity of the division bench order.
Are HC, SC judges mere ‘employees’?
A housing scheme floated by the Karnataka State Judicial Department Employees’ House Building Co-operative Society for the purpose of providing residential sites to low paid employees in the judicial department of the state at economically viable rates was similarly embroiled in controversy. Not only did some judges of the Karnataka High Court and Supreme Court become members of this co-operative society, they also procured house sites at nominal rates. In an October 12, 1995 order in Subramani v. Union of India (1995), the Karnataka High Court was firm in its assertion that judges of the High Court or Supreme Court, sitting, transferred or retired, cannot be called “employees of the court”. In fact, the membership of judges in the cooperative society was held to be an “irregularity” in the conduct of the business of the society, and the allotments made to them were set aside. However, in flagrant violation of the High Court’s order, a sizeable number of judges accepted plot allotments under this scheme, which, if reports are to be believed, include the present Chief Justice of India, Justice HL Dattu and the next CJI, Justice TS Thakur.
Public Perception is All
The independence of the judiciary fundamentally hinges on public perception of the judges. By the apex court’s own admission in KK Veeraswami v. Union of India (1991), “a judicial scandal has always been regarded as far more deplorable than a scandal involving either the executive or a member of the legislature.” Judges are expected to keep themselves above suspicion, so as to preserve the impartiality and independence of the judiciary and to retain public confidence. Any negotiation with the government, whether by a sitting or retired judge, in matters of residential accommodation would undoubtedly cast aspersions on the impartiality of the judiciary. On the government’s part, it should make the housing shortage for sitting judges and tribunals its first priority, rather than seeking to influence the judiciary through private land allotments. If the housing nexus continues, only a few judges benefit at the expense of the much larger question of the rule of law.
Ritwika Sharma is Research Fellow at the Vidhi Centre for Legal Policy
Credit for featured image of children standing inside the house of an advocate: Alex Graves/Flickr, CC BY-SA 2.0