Seventeen years after the allegation of corruption against former Punjab and Haryana High Court Judge Nirmal Yadav created a furore in the legal circles, a special CBI Court in Chandigarh on Saturday acquitted Yadav in the case. The President of India granted the sanction for prosecution in March 2011, and the trial in the case started in January 2014 when the charges were framed against Yadav. It was in July 2013 when the special CBI court ordered charges to be framed against Yadav and other accused persons.
Judicial delay has become a common feature of the criminal justice system in India now. However, what makes this case different is the fact that how difficult it is to initiate a criminal trial against a judge of the higher judiciary.
Backstory of the ‘cash at door’ case
As the story goes, the case started with a mistake of a low-ranking clerk. A packet containing Rs 15 lakh was allegedly wrongly delivered to the residence of Nirmaljit Kaur, who was also a High Court judge, on August 13, 2008. Later investigations revealed that the packet was meant for Yadav who had allegedly demanded Rs15 lakh for deciding a judgment in favour of a client of lawyer Sanjiv Bansal, a co-accused in the case.
It was not an easy task for the police to investigate the case. Equally difficult was to gain a sanction to prosecute Yadav.
When the case first came to light, an FIR was registered by Chandigarh police on August 16, 2008. But later the case was transferred to the CBI. Three years after the FIR, CBI charge-sheeted Justice Yadav – who was then a judge in the Uttarakhand High Court – on March 4, 2011, incidentally the day of her retirement.
Then, it took two years for the trial court to order the framing of the charges. On July 31, 2013, the trial court ordered the framing of charges against Yadav, and it took more than six months for the special CBI court to do so.
It’s very hard to prosecute a sitting judge
A judge of a higher judiciary can only be prosecuted after gaining the sanction of the appointing authority, which is the President of India. Additionally, as held by the Supreme Court in the 'Veeraswami' case, the President needs to consult the Chief Justice of India (CJI) before granting sanction. The law ministry too plays an important role in such cases. So, from the very beginning, it was not difficult to guess how tough it would be to prosecute the accused, who was a sitting judge of the High Court.
Arun Shourie, in his book ' Anita Gets Bail' recounts the entire case to show how the wheels of justice move when a judge is allegedly involved in a corruption case. He writes how there was a difference of opinion within the CBI between the Director, Prosecutions, who felt that prosecution was not warranted, and the Director, CBI, who felt that it was. Accordingly, by what its manual prescribes, the CBI wrote to the government to seek the opinion of the Attorney General.
The AG of that time, Milon Banerjee, was not convinced that there was enough material to proceed further. After some time on the behest of the then Law Minister, the CBI reached out to a subsequent AG, G.E Vahanvati, for his opinion. But again CBI did not get a favourable opinion.
Shourie writes, “Whereas Milon had ensured that, in addition to other aspects of the matter, he would not see the transactions relating to the purchase of land by Nirmal Yadav, Ravinder Singh and others, Vahanvati ensured that he would not see the main question-the Rs 15 lakh that had been wrongly delivered”.
On 7 December 2009, D.R. Meena, secretary of, the Ministry of Law and Justice, wrote to the Director of CBI that "sanction for prosecution has been declined on the grounds that after analysis of the available evidence, the learned attorney general of India has observed that there is not a shred of evidence that the said alleged offences were committed by Sanjiv Bansal, Ravinder Singh and Nirmal Singh in conspiracy with Justice Yadav' and that 'the matter had been discussed with the CJI, who had observed that no action was required for the present".
Supreme Court doesn’t let Yadav off the hook
Following this, a ‘closure report’ was filed by the CBI as it claimed that sanction for prosecution was denied by the 'competent authority'. However, again, in an interesting turn of events on February 10, 2010, the Secretary General of the Supreme Court clarified that the matter was not even referred to the Chief Justice, and no such recommendation to the effect of denying prosecution had been made. Now, the case was formally referred to CJI who, according to established guidelines, ordered an in-house probe and a committee was set up. The committee, after going through all the documents on record, concluded that the Rs 15 lakh was meant for Yadav.
It should also be noted that initially, during the tenure of KG Balakrishnan, who was the CJI, Yadav had got a clean chit. She then was transferred to Uttarakhand High Court. The case would have got a silent burial had not Justice S.H. Kapadia (who had become CJI after Justice Balakrishnan’s retirement) reviewed the decision of his predecessor and approved the prosecution of Yadav.
During the case, much mudslinging took place. Yadav in a letter to the then CJI KG Balakrishnan, cast personal aspersions against the other judge at whose home the packet was delivered. All this showed the judiciary in an extremely bad light. Now, finally acquitted, Justice Yadav can rightfully claim innocence. But this case nevertheless will be a grim reminder of the malice that crept into the higher echelons of the judiciary and how difficult it is to address it.
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