Letter by Advocate Mathews Nedumpara addressed to the Chief Editor, Malayalam Manorama, way back in 2011 when the allegations of corruption against Chief Justice Balakrishnan were the talk of the town, not merely in the corridors of the bar

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Mathews J Nedumpara: This letter I had addressed to the Chief Editor, Malayalam Manorama, way back in 2011 when the allegations of corruption against Chief Justice Balakrishnan was the talk of the town, not merely in the corridors of the bar. The editor told me that since it is about the judiciary, they cannot touch it, for, the threat of contempt hangs over their head like damocle’s sword. What he further said provoked my thought, namely, that if the court issues a contempt notice for speaking the truth about judicial corruption, the press will not even get a lawyer to represent them except to tender an unconditional apology. I think over the last ten years things have changed. The press is far emboldened today. It is the social media, the real fourth estate now, which is the reason for the change. But still we have to travel miles more to enjoy the freedom of speech and expression which Article 19 of the constitution guarantees us, which the law of contempt has abrogated.

NATIONAL LAWYERS CAMPAIGN FOR JUDICIAL TRANSPARENCY AND REFORMS

31st October, 2011

To

1)            Sri Mathews Varghese,

                Chief Editor,

                Malayala Manorama,

                Trivandrum.

Also to:

2)            Hon’ble Shri S.H. Kapadia,

                Chief Justice of India,

                Supreme Court of India,

                Tilak Marg,

                New Delhi-110 001.

3)            Hon’ble Dr. Man Mohan Singh,

                Prime Minister of India,

                148B, South Block,

                New Delhi-110 001.

4)            Hon’ble Shri Salman Khurshud,

                Minister for Law & Justice,

                Government of India,

Jaisalmer House,

26, Man Singh Road,

                New Delhi-110 011.

Hon’ble Sirs,

Sub:       Exposure of corruption in higher judiciary, namely, the Supreme Court and High Courts.

                ————————————————————————

1.                            While in Kerala in the last week, I happened to come across a news item concerning Mr. T.G. Nandakumar (Mr. Kumar),      a broker in high echelons, in whose Bank account astonishing amounts have come from nowhere.  Some report says Rs.40 crore; Rs.20 crore in the Delhi Branch of ICICI Bank; Rs.12 crore in the Palarivattom Branch of State Bank of Travancore etc.  The said news was no surprise to me because I had a cue on what was happening for a fairly long time and I had brought it to the notice of the Hon’ble Prime Minister, Hon’ble Chief Justice of India, intelligence agencies et al, to which Judges of the Supreme Court were parties.  I took up the issue first in the form of an anonymous letter in which I spoke about not only Mr. Kumar but many other conduits, one amongst them being     Mr. Srinijan, son-in-law of Shri K.G. Balakrishnan, then a senior Judge of the Supreme Court and thereafter the Chief Justice of India.  My tryst with corruption began in 2004 when I found that the Foreign Exchange Tribunal, Delhi, a Tribunal where cases involving huge stakes are adjudicated, openly practiced it.  I took up the issue with Shri Justice K.G. Balakrishnan, then a senior Judge of the Supreme Court.  His reaction made me thunder struck and I sensed that he is no longer Justice K.G. Balakrishnan while he was in the High Court of Kerala.  I smelt a rat.  Today what I suspected is, I would say, believed to be true by all right thinking people.

2.                    Being a practicing lawyer, the course of action which I have embarked upon, namely, exposing corruption in judiciary, is an extremely dreadful one, I can say from my own experience.                I happened to take up work in Mumbai by sheer chance.  I found what I suspected to be true and many Judges were corrupt.  It was at that juncture that we, a few lawyers, I must salute the young and bold lawyer Ms. Rohini M. Amin and Shri G. Upadhyay, who had to face even a contempt of Court proceeding against him, and a few others for their willingness to face adversities and make great sacrifice for a cause.  The National Lawyers Campaign for Judicial Transparency and Reforms was thus born.  Our organization is not a big one.  We function without a purse.  We believe that the organization needs to remain small to be effective and focused.  If a mouse has to grow and take the size of an elephant, it will not survive, for any animal, nay, any animate entity is most effective in its optimal size.  Therefore, we have decided our organization remains as an association of a few lawyers who are absolutely dedicated to the cause. 

3.                            I too had to face a lot of adversities.  I am afraid to say that the Judges often would act as if a trade union and try to annihilate me by meting out the most unfair treatment.  But such ill-treatment is not something which we did not oversee.  The willingness to make personal sacrifices and suffering for a cause which we believed is worth pursuing is what motivated us.  We believed in the words of Benjamin Disraeli “that all power is a trust; that we are accountable for its exercise; that from the people, and for the people all springs, and all must exist”.  We also firmly believe in the words of Judge Jerome Frank “In a democracy, it can never be unwise to acquaint the public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man made institutions. The judiciary is not the least dangerous branch of Government.  They send people to prison and decide the scope and application of all manner of rights and duties with important consequences for individuals and for society. Because the judiciary has such a central role in the government of society, we should ‘wash… with cynical acid’ this aspect of public life.  Let me again quote Justice Oliver Wendell Holmes “Unless and until we treat judges as fallible human beings whose official conduct is subject to the same critical analysis as that of other organs of government, judges will remain members of a priesthood who have great powers over the rest of the community, but who are otherwise isolated from them…”   Let me be permitted to quote Lord Atkins “no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way. the wrong headed are permitted to err therein. . Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.’  Let me again quote Justice Frankfurter that “the need is great that the courts be criticized but just as great that they be allowed to do their duty”.  Let me also quote the inimitable Justice Krishna Iyer “If judges browbeat, bully or misbehave and legislators invade, intimidate or violate freedoms so essential to democracy, functional fascism and new despotism will darken our Republic. Judges, Speakers and Tribunals, if they outrage dignity, decorum and decency, they too must suffer the punitive consequences of contempt. Pollution of power while high functionaries sit on the Bench or Chair is equally reprehensible and must be visited with due condemnation.”

4.                            It may appear that I have deviated a bit from the main issue which I seek to address in this letter by quoting extensively as above.  I did so not without a reason.  One of the correspondents who have acted in tandem with me could record something of the deal which they could strike with a conduit of Shri. O.P. Nahar, the then Chairman of the Appellate Tribunal for Foreign Exchange, who is now facing prosecution at the hands of the CBI for amassing wealth disproportionate to his known sources of income, I am told 600 times more.  However, the correspondent could not publish it, for he was scared of contempt of Court.  Some even believe that speaking or writing about corruption by a Judge could constitute contempt of Court and all the harassments that ensue.  I wish to disabuse the said impression.  As Justice Krishna Iyer has said, “to criticize a Judge fairly albeit fiercely is no crime but a necessary right … the Court must avoid confusion between personal protection of a libelled judge and prevention of obstruction of public justice and the community’s confidence in that great process. … The fourth estate should be given free play within the responsible limits even when the focus of its critical attention is the Court.”  He again says “Silence is guilt when there is a duty to speak.”  Judges enjoy immunity to discharge their duty fearlessly and independently, but if they employ conduits like Mr. Kumar and earn crores of rupees as bribe, then they enjoy no immunity and are liable to be prosecuted like any other officer of any other department of the Government. In the press reports concerning Mr. Kumar, which I happened to come across, what is said is that he, claiming to be a conduit of the Judges of High Courts and the Supreme Court, amassed huge amount of money.  What has been revealed is only a tip of the proverbial iceberg.  It is against common sense to think that corporate which pump in crores of rupees part with money on a mere protestation by Mr. Kumar.  They have paid him in crores because they have found him capable of delivering since they have realized that he is the one who can purchase judgments for a price.  The news report itself shows the Companies which are involved, Reliance, etc.  I am told that he tried to influence Shri Justice Radhakrishnan of the Bombay Court, an upright Judge, but failed.       I am not elaborating the particulars of the case for reticence.  I thought of addressing this letter, fairly a long one, since the press should extricate itself of the mistaken notion that investigating into and publishing allegations of corruption of Judges and vending of justice by high priests, the Judges, through their conduits like Mr. Kumar would constitute contempt of Court.  As the Delhi High Court has observed, sunlight is the greatest disinfectant.  Judges should be subjected to the same critical scrutiny as the press adopt in the case of politicians and bureaucrats. That is the law of the land, for a Seven Judge Constitution Bench of the Supreme Court has, in In The Matter Of: Under Article 143 … v. Unknown, AIR 1965 SC 745, held that “Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct.”  It has been well said that if judges decay, the contempt power will not save them and so the other side of the coin is that judges, like Caesar’s wife must be above suspicion, said Justice Krishna Iyer in Baradakanta Mishra V. Registrar of Orissa High Court, (1974) 1 SCC 374: (AIR 1974 SC 710). His Lordship further said “A rogue robe cannot hide behind the facade of contemptology. … We must turn the searchlight inward.”  David Pannick, a renowned barrister, said “The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts.”  I am sure you will be convinced as I am that Judges who indulge in corruption enjoy no immunity and are as much liable to be subjected to investigation and prosecution as any other ordinary citizen. I must say sadly that an impression to the contrary largely exists.  Judges, who are, to quote Justice Krishna Iyer, “a rogue robe” and the bar which no longer have Nani Palkhiwala and H.M. Seervai, are responsible for the decay.

5.                            Before I part with, I wish to add that my motive and background, though irrelevant, ought to be investigated, for while reporting a crime, what matters is the crime that is reported and not the motives.  But I wish to take a different stand.  I am a lawyer with 28 years of standing at the bar; practiced almost for 20 years in Kerala; I must say that I am fairly known in Cochin, have now shifted to Mumbai and somewhat fairly known in Mumbai, known to a small extent in Courts at Delhi, Madras and Coimbatore, which I frequent.  You must also investigate about the company I keep, the wealth or the assets I have made.  I say so because I believe my life is an open book.  I have nothing against Mr. Kumar.  I only sympathize and pity with him, for I could foresee where he could ultimately land up.  But     I do not share the same kind of compassion for the mighty Judges of the Supreme Court and Chief Justices of High Courts whom I believe for very valid reason have compromised their judicial function, a divine one, and made money.  I end with a caveat.  Conduct an investigation, the most discreet and dignified manner, but without compromise.  Though this letter is primarily addressed to the Chief Editor of Malayala Manorama, I am simultaneously sending the same to the other high dignitaries. A common letter is written only for the sake of convenience.

With kind regards,

Yours sincerely,

(Mathews J. Nedumpara)

President

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