Courting Controversy

Nearly four months into Ranjan Gogoi’s tenure as the chief justice of India, there does not appear to have been any elemental shift from the way the Supreme Court functioned under his predecessors, Dipak Misra and Jagdish Singh Khehar. On the judicial side, in cases of high political capital, there have been inexplicable delays in hearings, and Gogoi has opted for less than forthright techniques, such as the practice of asking for submissions in a sealed cover. On the administrative side, the collegium, headed by Gogoi, had brought Dinesh Maheshwari and Sanjeev Khanna to the Supreme Court. The former was accused of “doing the executive’s bidding behind our back” by a sitting Supreme Court judge last year. The latter was elevated from the Delhi High Court even though the collegium recommended two other senior judges from the same court a month earlier. Now, according to two judges of the Supreme Court—one former and one sitting—the collegium’s next two picks will be the judges Bhushan Gavai and Surya Kant.

Kant faces allegations of grave misconduct. In 2012, a real-estate agent accused the judge of having participated in illegal property dealings involving undervaluation and cash transactions worth several crores. In 2017, a prisoner in Punjab filed a complaint listing eight cases heard by Kant, and alleged that the judge had accepted bribes to grant bail in these. Though these complaints have been sitting with the collegium for over six years, Kant remained a judge at the Punjab and Haryana High Court till October 2018, when he was appointed the chief justice of Himachal Pradesh High Court. The collegium recommended his name for the post even though the questions arising from the complaint had not been resolved, and according to a former Supreme Court judge, it will do so again—this time, for elevation to the apex court.

Kant began his legal career as a litigator in Haryana’s Hisar district, in 1984. He was appointed the advocate general of the state in the Punjab and Haryana High Court in 2000—a post he held for four years, till he was elevated to judgeship. In August 2012, when Kant was a sitting judge in the Punjab and Haryana High Court, Satish Kumar Jain, a Chandigarh-based businessman dealing in construction and real estate, wrote a letter to SH Kapadia, then the CJI, accusing Kant of non-payment of dues and tax evasion on a sum of Rs 7.63 crore. Jain attached the sale deeds for four different properties that he had bought or sold for Kant between March 2010 and March 2011.

On 11 September 2012, around three weeks after Jain sent his complaint to the CJI, he received a reply from the Supreme Court’s registry: “Take note that Complaint cannot be entertained unless supported by verifiable material and Affidavit, received within four weeks.” Six days later, Jain replied to the court by putting everything he had said in his complaint on a sworn and signed affidavit, a copy of which is with The Caravan.

Jain began the complaint stating that Kant had approached him to renovate three properties—his official residence in Chandigarh’s Sector 10, a two-bedroom property in the city’s Sector 16, and a 15-acre farmhouse in Panchkula, in Haryana. The renovation of these properties cost about Rs 19 lakh, Jain wrote in his complaint, but Kant did not pay him “even a single penny.” In the signed affidavit that Jain filed in September, he stated that Kant had paid him Rs 6 lakh after the August complaint to the Supreme Court.

Perhaps as a consequence of the falling out with Kant, Jain decided to bring the judge’s property dealings to the attention of the Supreme Court. In addition to the renovation work he did for Kant, in his submissions to the CJI, Jain listed two properties that he had bought on behalf of the judge, and two others that he sold for him. For each property, Jain claimed, a sale deed was drawn up in which the stated value of the properties was significantly lesser than the actual cost of the transaction. The remainder amounts, Jain stated, were left undisclosed in the sale deeds and were paid in cash—evading taxes and stamp duty. Despite several attempts, I was unable to speak to Kant. By the time this story was published, Kant’s office had not responded to my request for comment.

Jain’s affidavit mentions that the first such sale took place in March 2010. He wrote that Kant had approached him to “dispose of a benami property consisting of a farm house on Nahan Road in Kumarhatti, Himachal Pradesh.” While the value of the farm house was Rs 2.32 crore, the sale deed only showed a sale price of Rs 13 lakh, whereas “the balance Rs. 2.20 crores were received in cash, as instructed by the Hon’ble Judge, on his behalf since he was the actual owner of the property,” Jain wrote. “The said amount was handed over to the Hon’ble Judge.”

In April 2011, Kant sold another property through Jain—a residential plot measuring 441 square metres, in Panchkula. While the sale deed shows that the plot was sold at Rs 1.50 crore, Jain claimed that it was actually sold for Rs 3.10 crore, and that once again, Kant received the rest of the money in cash.

According to Jain, Kant followed the same modus operandi for properties that he bought. The real-estate agent wrote in his complaint that Kant had also asked him to find a house in Delhi. He zeroed-in on a house measuring 285 square yards, in the capital’s Greater Kailash I locality. Diya Kumari, a princess of Jaipur’s former royal family, who joined the Bharatiya Janata Party in 2013, owned the house at the time. Kant purchased it in September 2010. “The actual amount paid for buying the house was Rs 3.50 crores; however, a sale deed involving consideration of only Rs 1.50 crores was prepared,” Jain wrote. “The balance of Rs 2 crores was given in cash by the wife of the Honb’le Judge to the princess at her home located in Maharani Bagh, New Delhi.” Jain added that he had personally accompanied the judge’s wife to Kumari’s house to sign the sale deed.

Jain also referred to the undervaluation of a property measuring 190 square yards that Kant bought in Chandigarh’s Sector 18. In his complaint, Jain wrote that the “actual consideration paid” for the house was Rs 3.08 crores, “whereas the value of the house according to the sale deed is Rs 1.25 crores.” Jain alleged that the remaining amount was “transacted in cash.” But the documents attached to his complaint create an uncertainty about Jain’s allegations regarding this property. The attachments include two sale deeds for the Chandigarh property, dated March and April 2011, respectively. One lists the sale price of the property as Rs 3.08 crore, while the other records it as Rs 1.45 crore.

Both the properties that Kant purchased are located in upmarket neighbourhoods of the cities in which they are located. The circle rates—official land prices for particular locations in a state—at the time for these areas reveal the extent to which the properties were undervalued on paper. For instance, in September 2010, the circle rate for Greater Kailash stood at Rs 1.25 lakh per square metre. Based on this, the value of Kant’s property would have been around Rs 3 crore, or double the price listed on the sale deed. The Chandigarh property, too, would have costed significantly higher—a sum of Rs 6.63 crore, at the circle rate of around Rs 3.49 lakh per square yard prevailing at the time that Kant purchased it.

“The Honb’le Judge has on more than one occasion acted in such a manner as to evade the necessary taxes and has evaded stamp duty on the transaction to the tune of 7.63 crores, by under valuing the property and also avoided income tax on the same,” Jain wrote towards the end of his complaint. “The Honb’le Judge is acting like a property dealer and ensuring maximisation of profits, even at the expense of stamp duty evasion and holding benami property.”

Almost five years after Jain filed his complaint, Kant faced fresh allegations of serious misconduct, when one Surjit Singh, a prisoner in Punjab’s maximum-security jail in Patiala, filed a complaint accusing the judge of corruption. Singh alleged that Kant had been accepting bribes for granting bail in cases under the Narcotic Drugs and Psychotropic Substances Act, and accused the judge’s brother, nephew and two lawyers of acting as “touts” for the judge. Singh listed eight cases in which Kant had granted bail to accused individuals between October 2015 and February 2017, after they were allegedly caught with commercial quantities of narcotic drugs. The accusations are particularly grave when considered in the context of the opioid epidemic in Punjab.

The Supreme Court administration did not order an investigation into either Jain or Singh’s claims, and Kant remained on the bench of the Punjab and Haryana High Court. After 14 years in Chandigarh, on 3 October 2018, Kant was appointed the chief justice of the Himachal Pradesh High Court.

Kant’s elevation to the Himachal Pradesh High Court was not without controversy either. AK Mittal, who was also a judge of Punjab and Haryana High Court and four years senior to Kant, was superseded in the process. Two days after the collegium made its recommendation to appoint Kant the chief justice, AK Goel, a sitting judge of the Supreme Court, expressly disagreed with the collegium’s findings that Kant was more suitable than Mittal. Yet, Kant was appointed to the post, while Mittal still remains at Chandigarh.

Members of the higher judiciary with first-hand knowledge of the developments told me that in April 2017, Mittal was considered for appointment to the Delhi High Court, as its chief justice. But it did not take place at that point because SS Saron, a judge in the Punjab and Haryana High Court who was senior to both Mittal and Kant, had only a few months left in his tenure. “It was felt that Mittal’s name be sent a few months later” out of respect to Saron, a former member of the higher judiciary told me. But after Saron’s retirement, in September 2017, the collegium appeared to have become less considerate of the notion of seniority in judicial appointments. In a meeting on 10 January 2018, the collegium decided to elevate Kant to the Himachal Pradesh High Court. At the time, the collegium comprised Misra, Gogoi, Jasti Chelameswar and Kurian Joseph—though Joseph’s name is not mentioned in the minutes of the 10 January meeting, which were uploaded on the Supreme Court’s website.

The pretzel-shaped logic of wanting to bring Mittal to the Delhi High Court, then waiting until Saron retires, and then opting to leave Mittal out to elevate Kant, a junior judge, gets its design from the ever changing dynamics of the collegium. The proposal to elevate Mittal first arose when Khehar, who himself came out of Chandigarh, was the CJI. By the time Saron retired, Khehar had been replaced by Misra, who had spent no time in Chandigarh as a judge, and thus had to seek and rely on the opinions of consultee judges.

Misra sought the opinion of Ranjan Gogoi and AK Sikri, both Supreme Court judges who had spent time in the Punjab and Haryana High Court. In the words of a former member of the higher judiciary, who was a part of the collegium at the time, Gogoi and Sikri “raised a stink about Mittal and refused to approve his name.” The former member added, “They wanted Surya Kant.” A second member of the higher judiciary told me that Gogoi had become close to Kant when Gogoi served as the chief justice of Punjab and Haryana High Court, in 2011. In Chandigarh, Gogoi fell critically ill, which affected his work for months, and both former members of the higher judiciary said that visitors to his house would often encounter Kant on the premises.

“Misra always avoided confrontations, so he let Gogoi have his way,” the former member of the higher judiciary told me. When the collegium met on 10 January 2018, it decided to recommend the names of judges to be appointed as chief justices of ten high courts—including Kant’s name for the Himachal Pradesh High Court.

The minutes of the 10 January meeting explained the decision: “Though Mr Justice AK Mittal is senior to Mr Justice Surya Kant in the seniority of judges of the Punjab & Haryana High Court, having regard to all relevant factors and since we consider Mr Justice Surya Kant more suitable than Mr Justice AK Mittal, we are not recommending name of the latter, for the present, for appointment as Chief Justice.”

Two days later, Goel wrote a scathing letter to Misra opposing Kant’s elevation. Goel himself arose in the Punjab and Haryana High Court, where he practiced as a lawyer for over 20 years, and spent 10 years on the bench. The timing of his letter, coming after the recommendation was published online, raises another question about the working of the collegium: Was Goel’s opinion as a consultee judge not sought before the collegium decided to elevate Kant, with whom he had spent about six years on the bench of the high court?

“I am in respectful disagreement with the proposal,” Goel wrote to Misra, in the letter dated 12 January. “My opinion was sought last year by the then Chief Justice of India on complaints of corruption against Mr Justice Surya Kant. I had given my opinion dated 11th March, 2017 inter-alia suggesting obtaining of independent valuation reports of the properties acquired by the judge mentioned therein. I had also given opinions about other complaints relating to corruption and casteism.” The letter makes it evident that regardless of whether Misra sought Goel’s advice before proposing Kant’s name, Goel’s opinion concerning the allegations against Kant had been a part of the file since at least March 2017. “I have no feedback about the outcome of the same,” Goel continued. “As per my assessment, Justice Surya Kant is not suitable for appointment as Chief Justice till thorough enquiry is conducted, as I have already opined.”

Goel annexed his March 2017 opinion, in which he discusses both Jain and Singh’s complaints, in his letter to Misra. “From the record available,” Goel wrote in the March letter, “it appears that the judge has acquired certain properties after elevation. Complaints have been received about undervaluation of the property so acquired. … However, no verification has so far been done from any independent source/expert valuers.” Goel specifically mentioned the need to look into the purchase of the house in Greater Kailash, bought by Kant from Kumari. Referring to Singh’s complaint, he noted, “Eight bail orders referred to in the complaint (annexed), prima facie, appear to be unusual and not sound in law.”

Goel’s March 2017 letter refers to “corruption and casteism ... in selection of subordinate Judicial Officers,” but Goel does not expounded upon this further. He mentions that the complaint concerning casteism is in “Page Nos 393 to 399 of File No 36 Volume 2”—a reference to the Supreme Court files, which are confidential.

For nearly nine months after the collegium recommended Kant’s appointment as chief justice, the central government appears to have sat on Kant’s file. On 3 October 2018, the day that Gogoi took oath as the CJI, the Ministry of Law and Justice notified Kant as the chief justice of the Himachal Pradesh High Court.

What changed in the interim period remains a mystery. If the government had reasons to block or delay Surya Kant’s elevation from January to October 2018, how did those get resolved? In its recommendation to elevate Kant, the collegium said it had considered “all relevant factors” before proposing to appoint Kant, instead of Mittal, as chief justice. It is unclear what these factors were, given that Goel’s letter indicates that there had been no independent probe into Jain’s submissions to the CJI. The only apparent change is the shift at the collegium’s helm, with Gogoi’s appointment as CJI.

Two former Supreme Court judges told me that despite the serious charges against Kant, which have been sitting in his file for years and which Goel subsequently highlighted, the collegium is likely to recommend his name for elevation to the apex court. If it does, Surya Kant will be the chief justice of India for a term of 15 months.