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A historic event has taken place in the Supreme Court of India. There will be no independent probe into Judge Brijgopal Harkishan Loya’s death. This is one of the first judgments to come at a time when the Indian Judiciary stands embattled in a manner not seen since Independence. Those quick to point out the Emergency, may do well to reflect, that while Emergency kept our democracy locked and at bay to pander to an autocratic leader, now and here, as we live and speak, work or laze, fight or make love, a dark cloud looms by which democracy and the rule of law are being artfully and systematically subverted. In hindsight, Emergency appears as a blip and our judiciary came out the stronger of it. It rose to the occasion and reclaimed its independence as well as integrity.

This spirit, which the Indian Judiciary showed at what was then the nadir of the Indian democratic experiment in the mid-seventies, is almost dead. This period is historic, not least for the other significant judgments that are being awaited, or for the unprecedented press meeting called by the Supreme Court’s senior-most judges, but for the very foundations that made our country possible in the first place. We are being uprooted like an old banyan tree might be, but we are by and large comatose, and don’t even feel the tremors. Such is the adversity of our collective situation.

Judge Loya died in 2014 but for some time he stood resurrected. Caravan’s reporter Niranjan Takle is an ordinary person, much like you and me, but what he did was extraordinary. For a moment it seemed that God spoke through him, that God could well be a regular reporter, who must resurrect the dead, especially when it seemed that they had not been properly buried.

Amongst its several rebuttals to the petitioners’ arguments, the bench constituted by the Chief Justice of India to decide the matter, is very keen on reprimanding the petitioners for their lack of bonafides and contempt of court. The bench then negates the evidence relied on by the petitioners. But this was not a criminal trial. The writ petitions only sought an independent probe into a critical case that was in fact mocking the very institution of our judiciary.

Judge Loya was a CBI judge entrusted with overseeing the Soharabbudin Sheikh fake encounter case in which the BJP President Amit Shah was an accused. Any reasonable person going by the murky and sordid history of the case, and what followed thereafter, and as it stands to tragically unfold even now, would assume that there is a rat, and it is stinking as hell. Post the furor over the Caravan article the Supreme Court should have in fact taken suo motu cognisance of the case.

One of the time honoured maxims of the law is that justice should not only be done, but must be seen to be done.

The Supreme Court’s rebuttals have already been politically hijacked and can be dissected as well as Mr. Jaitley has sought to do, but it would be more of Machiavellian legalese. Given the divisive and political overtones the case has assumed, with help in no little measure from social media, the polarisation is complete and evident, just as it is for anything now these days. More than polarisation there is fear. Read FEAR.

None of Judge Loya’s family came ahead when they should have, even if it were to simply negate Caravan’s report in open court. The bench too declined to call the family or the judges who said they were with Judge Loya at the time of his death. These being just a couple of inexplicable positions taken by the bench. There was more than enough prima facie material, which the petitioners had brought on record in support of their plea. To reiterate - an independent inquiry is all that they sought. Nobody was going to be hanged for that. One does not need to be a legal scholar or a hotshot lawyer to understand this, or for that matter, the absolute retreat and silence of Judge Loya’s family in the days when the petitions and interventions were being heard.

The bench has also upbraided the petitioners for undermining the judiciary by casting aspersions on those in the bench and on the other judges whose names came up as part of the hearing. Yet the petitions well within the domain of public knowledge fundamentally argued that if the plea for an independent probe is not granted, it would result in an erosion of faith in the judiciary and within it as well, and does not bode well for the lower judiciary.

The tables stand turned and how. The irony is incredible.

In another situation this might seem like a neat sleight of hand, altogether familiar when it comes to political expediency, but now it is simply scary. The Bar and Bench stand divided like never before and the line of division is glaring and aching. Certainly the atmosphere in the Supreme Court has turned noxious. All along, in spite of all the pressures, our judiciary has always shown that it will be the ultimate leveller and a custodian of our rights and dignity. That modicum of faith is fast disappearing.

Judge Loya, who might have been afforded the chance to speak to us through his grave, has been silenced yet again. The questions however will not cease. I often look at his file photos in the news and I always think of him first as a judge and later in any of his filial capacities. Was it not enough that he had sworn to serve the judiciary and through the institution, us, the people of India? His life was exemplary in that regard, and his conduct impeccable, especially when he was assigned to adjudicate the notorious Sohrabbudin case. Do we understand that in failing an upright judge, we have also failed the very institution that is key to our democracy and our constitutional values? It is perhaps the latter that bothers me more and I have a feeling that Judge Loya would have concurred.

There are hundreds of Judge Loyas in our country who have taken the fall in the line of duty when they became a nuisance to the ruling establishment of their time. Judge Loya is certainly not an exception, but his case is. Our judiciary, and we the people of India, were offered a rare opportunity to redeem ourselves had an independent probe been permitted.

We have let that moment pass to our peril.

We stand witness to a new phase of history that has been surely and steadily taking its course, not dissimilar to other previous twisted regimes in the world. In this withering landscape we are adrift and pensive, and for now, our heads must hang in shame.

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10th September, 2016, Cuttack: One is puzzled by the accounting treatment for Justice Indrajit Mahanty's Rs 2.5 crore working-capital loan for his hotel, The Triple C. Lakhs of rupees are withdrawn and repaid every month in two SBI loan accounts in the name of "Justice Indrajit Mahanty" and strangely, not in the name of Latest Generation Entertainment Pvt. Ltd., the company that has leased the hotel from him. As a High Court judge, Justice I. Mahanty gets a monthly salary of Rs. 1.35 lakhs, and therefore is liable to pay Income Tax. But repayment of principal plus interest could reduce or eliminate his taxable income. Suppose his tax returns are dodgy, can Income Tax authorities summon his lordship personally for questioning u/s 131 of Income Tax Act, and compel production of his lordship's books of account?

We asked Mr Binoy Gupta, a retired Chief Commissioner of Income Tax (CCA), who holds a Ph.D. in Law. His reply was: "There are no exemptions in any law for any Supreme Court or High Court Judges from any judicial or quasi judicial proceedings. Our department has taken action under the Income Tax Act against them."

We requested Mr Gupta for case studies (with or without the names of the judges) to substantiate his claim of having taken action against judges. His response was: "I can not give any instances today. But I stand by my statement that Judges of the Supreme Court and High Courts have no special status so far the applicability of Income Tax Laws are concerned."

And then Mr Gupta added that bringing a judge to justice is a tough job. He wrote: "If any govt. servant engages himself in business, his department can and does take action. But the procedure for taking action against Judges is far too complex... impeachment which is extremely difficult."

Given the absence of case studies and other details of judges being held accountable by Income Tax authorities, our gut feeling is: IT authorities will never dare to summon his lordship, because (a) they would be in awe of a high court judge, and (b) because the high court has superior jurisdiction over the Income Tax department, and not vice versa. Even if judges do not enjoy de jure immunity from quasi-judicial and administrative authorities, they enjoy de facto immunity. No government official will risk rubbing a high court judge the wrong way by questioning him, even if the law permits him to do so!

Justice Indrajit Mahanty may or may not have broken any laws, but he is definitely in breach of the code of ethics on multiple counts. Must we all act like Gandhi's three monkeys and remain silent?

In return for such unquestioned authority and immunity, judges are expected to keep their affairs transparent and straightforward, by abstaining from business activities. Their income should ideally consist of their salaries, and interest on fixed deposits etc. -- nothing more complicated than that. To quote YK Sabharwal, former Chief Justice of India, who spoke on the Judicial Canon of Ethics, "Almost every public servant is governed by certain basic Code of Conduct which includes expectation that he shall maintain absolute integrity... manage his financial affairs in such a manner that he is always free from indebtedness, and not involve himself in transactions relating to property with persons having official dealings with him." Please note that seeking building permissions, bank loans, hotel licenses, etc. etc. are all transactions with the government, administration and public sector, who all have "official dealings" with a high court judge in his judge-like capacity. Such transactions adulterate the purity of Justice Indrajit Mahanty's judgment.

According to the Restatement of Values of Judicial Life (adopted by Full Bench of Supreme Court on7th May, 1997), "A Judge should not engage directly or indirectly in trade or business, either by himself or in association with any other person. 

And according to the Bangalore Principles of Judicial Conduct, 2002, "A judge shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free therefrom."

Read all these documents on judicial ethics and in that context, understand the significance of Justice I Mahanty's actions. Justice Indrajit Mahanty may or may not have broken any laws, but he is definitely in breach of ethics on multiple counts.

So, must we all remain silent like Gandhiji's three monkeys? Must we all adopt a policy of See-no-evil, hear-no-evil, speak-no-evil when it comes to judges? Must the adulteration of our judicial services be allowed to continue under cover of a conspiracy of silence?

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Posted By 
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7th September, 2016, Cuttack: Earlier this week, Justice Indrajit Mahanty of Orissa High Court admitted that he "carries a loan burden for his long-time business outfit", through an opinion piece that was written on his behalf titled "Media sensation at times hits great guys, hurts society" in The Pioneer. (The "loan burden" is a Rs 2.5 crore working-capital loan for his hotel, The Triple C, which was borrowed in 2009 from SBI. Till this day, amounts ranging between one and two lakh rupees are drawn and repaid every month in the name of "Justice Indrajit Mahanty".) The author, clearly adores Justice Mahanty, writes, "As a lawyer, he became too eminent too soon only because of his keen commonsense, command over the English language and the superb manner of making complex Acts simple for judges and clients alike. He drives points home the same way as smart kids do tricycles." The point of the article is that it is acceptable that Justice Indrajit Mahanty has a big business loan to his name, and runs a hotel, because of his love for humanity, and therefore, our article questioning the ethics of his actions is a "terribly misplaced allegation". The author argues, "Yes, there is a loan burden, not a robbery charge. Yes, he ran it to add value by generating employment for many. The only thing people would like to know is whether or not his ‘judicial conduct is appropriate and above board’; whether or not he is selling judgment, and if he has the knowledge and skills to help the suffering humanity."

Is this a reasonable argument?

The implications of a high judge taking a business loan from a bank, and using it to run a hotel, are far-reaching. Although Justice I. Mahanty is only 55 years old, he is already number two in seniority at Orissa High Court. Being the son of well-known Barrister Ranjit Mohanty, he is influential and well-connected in the legal fraternity. In the next 5-10 years, his career track can make him Chief Justice of Orissa HC, a Supreme Court judge and even Chief Justice Of India.

The Triple-C Hotel can be need not necessarily be a success story. Experienced businessmen like Vijay Mallya often fail to repay the banks; so, is it totally improbable that a part-time businessman like Indrajit Mahanty may fail to pay back what he owes to State Bank Of India?

However, The Triple-C Hotel can be need not necessarily be a success story. Experienced businessmen like Vijay Mallya often fail to repay the banks; so, is it totally improbable that a part-time businessman like Indrajit Mahanty may fail to pay back what he owes to State Bank Of India?

What happens if Justice Indrajit Mahanty defaults and the matter goes to Debt Recovery Tribunal?

  1. Does Debt Recovery Tribunal (DRT) or Debt Recovery Appellate Tribunal (DRAT) get jurisdiction over Justice Indrajit Mahanty?How will Justice Mahanty (who may by then be Chief Justice of Orissa High Court, a Supreme Court judge even Chief Justice of India) be an appellant or defendant before DRT or DRAT?

  2. Does Justice Indrajit Mahanty appear before Orissa High Court?Suppose the order of DRAT is further appealed, can Justice Indrajit Mahanty be an appellant or defendant before Orissa High Court? If not, then what is the proper forum to hear the matter?

  3. Can any tribunal or lower court entertain a matter against any judge of the higher judiciary in respect of his private affairs, such as bank loans or hotel business? Will such proceedings strengthen his public image as a judge, or will it damage it? And what will such cases do to the image of the judiciary?

  4. If a high court or supreme court judge is before a lower court or tribunal, what happens to his superior jurisdiction over such lower court or tribunal? Won't this create a constitutional anomaly?

Apologists and admirers of Justice Indrajit Mahanty, please remember that this is not about one man's goodness or integrity, it is about the integrity of our judiciary as a whole.

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Posted By

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It is a piece Ashok Malik wrote to explain Rahul Gandhi's stupidity. It ends up improving my estimation of his intelligence. In a rather long winded post "Green means stop", Ashok Malik shows his mastery over words and writing to an objective, but alas little respect for the intelligence of the Supreme Court or people. My summary of it is "But how can they just stop mining? Think of the money! Congress lost election there. Therefore proved greed is right. And oh. NGOs are evil."

The title itself is fascinating. Green means stop. It would probably have been more relevant to the subject matter if it were "Green means stop mining" but the absurdity of implying green indicating a halt works with traffic signals, while green meaning stopping mining is plain common sense, even if you left out all policy, profit or manipulations and just went by before and after photos. I'd think the truncated title was serendipity, but credit must be where due. It is a well crafted title for the goal of the article.

Articles that comment on such issues are a dime a dozen and everyone has their opinion. My irritation with this article is the sneering patronizing, not only of the view it challenges, which is only to be expected - for example this article itself, but of the Supreme Court and the people themselves.

The most important paragraph of the piece (at least to my irritation) is:

The final roadblock came when the environment ministry and the government’s lawyers used a provision under a new forest law, drafted by UPA or more specifically NAC, to seek concurrence of the local community for land acquisition. In his wisdom, a Supreme Court judge agreed. In theory, the concurrence of the local community sounded like a noble idea. In practice what did it amount to?

"In his wisdom, a Supreme Court judge agreed." Really? He means like agreed on a personal basis? And the passive aggressive "in his wisdom" before going on to call that wisdom wrong belongs to an Ekta Kapoor script. Perhaps Ashok Malik is not aware that when a Supreme Court judge gives a judgment, it is THE SUPREME COURT speaking in judgment after considered evaluation of the matter, not an individual opinion of agreement. This is not to say the Supreme Court cannot be wrong and my belief is that in a democracy people should be able to speak up when it is, but it cannot merely be shrugged off as individual opinion either that doesn't require any explanation about flaws in the case.

What is more worrisome is the manner in which the article goes on to dismiss the local population as ignorant and disinformed into refusing a better life. I don't know how much experience Ashok Malik has in engaging with rural/backward/remote populations, but in my experience, while it is easy to disinform them to aceept short term profit for longer term loss, it is nearly impossible to do the opposite. It is extremely difficult to get a person to let go of profit visible right now to remain at a disadvantage and that too suffering state brutality, pressure tactics and intimidation in order to do it.

People are not stupid. If a promise will give them a better home and livelihood and also get the state and private militias off their backs, in one fell swoop, they aren't stupid to refuse it just because a few outsiders tell them to. Maybe you could convince a few with conspiracy theories that the advantage was not real. But to convince twelve gram sabhas? That would take a level of gullible that is only possible if you have never really interacted with any rural or tribal populations. Development isn't a mere concept there with variable weight depending on who is arguing. Necessity forces knowledge.

Let us take a look at the knowledge. Odisha currently has the highest income of all the states from mining. So what is the prosperity mining has brought to Odisha that it should do more of the same? What is the prosperity mining has brought anywhere?

To write about economics for the country, economists go "Increase manufacturing! exporting raw materials and importing finished goods will keep India poor." Yet when it comes to getting regions to accept mining, the argument follows the opposite logic and predicts prosperity to come, even if the state is the national leading state in the prescribed activity.

The progressive state's hatred of anyone endorsing rights to anyone outside a tight circule of people with power is hardly a surprise - be it by caste, gender, economic class or social. Yet, it takes a special kind of ignorance to believe that people of the state earning highest revenues from mining need outsiders to explain to them what the consequences of mining are for their livelihoods, displacement and health. Because of course they live conceptual lives and have never seen the realities of mining like an elite theorist has.

And who is supposed to deliver this miracle and at what cost? Vedanta, which has polluted many places already.

I am no fan of NGOs or the cartel state. But I have a special contempt for those who dismiss rights, plight or concerns of Indians - any Indians, anywhere - for profit.

Note: This post does not cite anything issued by the Congress Party or NGOs. None of my posts on the subject do though some cite court judgments against bauxite mining in other countries.

I was on Twitter when the news of the 2G judgment cancelling all the licences from Raja hit. It was HUGE 122 licences scrapped! 3 of Tata, 21 Videocon, 22 Uninor, 9 of Idea, 6 of S-tel, 13 of Swan, 21 of Loop, 21 Sistema Shyam – poof! gone.

Devastation hit the ranks. The instant, knee jerk reactions were all about “foreign investors” and “overseas markets”. India would lose credibility as a market. This sent a bad message to investors, etc etc.

Then the political tweets hit, and the “good side” of the verdict became more visible. Landmark judgment, now does the Congress admit… etc. But more than a political decision, I saw this as a setting of a high standard on the whole subject of corporate favor. Most were furious with Raja, but still used Idea connections. This pulls the curtain on all that. Being part of a corrupt deal is corrupt. Period. This is greater than the myopic – “oh, now the Congress can’t squirm its way out of this”.

In my eyes, this is a date to be recorded in our country’s economic history.

I saw something tremendous happening with India and its economic journey. In a country where perpetrators of the Bhopal Gas tragedy were sheltered by the government to maintain an investment climate, and the government is all but selling people itself to raise money, this was a massive about turn. MASSIVE.

This changes everything. A thousand times more than the Lokpal. This strips the facade that it was only the government that was corrupt. The government-corporate nexus gets called out for what it is, and then slammed unequivocally.

In my eyes, what happens with the 2G licences is still minor in the face of the precedent that was set today. Corporations that collude with the government to bend rules can be devastated any time in the future. In essence, it set the date on taking a sigh of relief at having pulled a “good deal” to an uncompromising “never”. You get caught, you are back to square one, plus your loss.

Today’s Supreme Court judgment is going to haunt every corporate-government deal from now on. No telling what will happen if caught in future. Big incentive to play straight.

I believe that more than justice, this moment is historical in its deterrent. The Supreme Court has put its foot down. Bend the country’s laws to get undue favor, and no matter who you are, no matter how fait accompli your deal is, you will get what is due, when it comes before the court. This brings up hope that the many times the country has been sold short can all be hauled into court and set right, instead of simply voting for a better future and keeping fingers crossed.

This makes any corporation thinking of getting licences/rates/clearances it doesn’t qualify for to think again. It clearly sets a business code for dealing with the country, which is less said, but its impact will have to be considered in every future deal in the country.

Expect to see more hope on mining scams and what nots. This will recharge the fight for people’s rights like nothing else can.

I am happy for the opposition leaders, but this sets a worrying precedent for them too. NO ONE is above the law. Whoever’s turn comes, comes.

The country matters.

And it says one more thing. We are so blinded by stocks and markets and investments, that many of us saw this decision as a bad thing at first sight. Some barely stopped short of accusing the Supreme Court of damaging “national interest” [read "investment climate" - that seems to be what national interest has been reduced to].

It is high time we found a sense of ethics to match the vocal righteousness. The country is growing and you want to be on the right side of history, no?