Eulogy to a judge who imposed Martial Law in Delhi in 2006
Y. K. Sabharwal (Yogesh Kumar Sabharwal) was a name I became familiar with when I had started my career as a junior lawyer with a government counsel. Yesterday Y. K. Sabharwal passed away and would be cremated in a short while. Every person has many personas and different people remember a person differently. I have my remembrance about Justice Sabharwal.
Y.K. Sabharwal as a lawyer:
Two decades back as a junior counsel to a Government Counsel in Delhi High Court I came across a file with the name of Y. K. Sabharwal printed upon it. It was worn out and of course old case. Whatever was the matter, it was dismissed in default due to non representation by lawyer. I do not remember that if it was Sabharwal who defaulted. An application was filed by Sabharwal to recall and set aside that order but this application was also dismissed in default due to non representation. Another application was filed to recall this order but that was also dismissed in default due to non representation. Now another application was filed to recall that order. I was surprised at the callousness but was stunned when I came to know that Y. K. Sabharwal was sitting judge of High Court. But I took this case as a rare aberration as I did not come across any other case.
In all fairness I may clarify that his appointment was made before judges appoint judges regime started. But he was certainly elevated to Supreme Court by the same judges’ collegium which claim itself to be better system.
Conflict of interest or abuse of power:
First a question. Does your father not always ask you what job you are doing or what business you are doing or planning and with whom you are partnering with? Isn’t that natural in every household? Family members talk to each other. Y. K. Sabharwal would like us to believe that his family never discussed these matters at home and that he did not know what business his sons were in or for that matter who they were partnering with.
Sons of Sabharwal got their companies registered giving the address of official residence of their father. They started company with 0.1 million capital investment and within a year got investments of 30 millions investment from builders of shopping malls. Now spaces in shopping malls needed to be sold so how they helped? Not them but their father obliged.
Judicial Martial Law in Delhi:
Summer was prolonged into September in year 2006. Y. K. Sabharwal presiding upon judicial bench of Supreme Court, passed a judicial order directing sealing of every office or other commercial activity carried out in residential premises which no doubt was illegal but a practice which was decades old.
Propriety and legality of such an order can be assessed from these facts. Power of sealing was derived from a legislation called MCD Act and it has certain conditions for exercise of power and a provision of appeal but Sabharwal re-legislated it by judicial order and removed all conditions and appeal. He hand-picked two persons to act as court commissioners to supervise the seal order or to act as a type of appellate forum by passing the mechanism under MCD Act. These commissioners passed orders in secrecy. They heard people but never gave away not reasoned orders. Even under right to information, the orders or order sheet of commissioners were not given.
Sabharwal imposed in Delhi what Indira did to India in emergency. There were people on the streets shouting and riot control police in full gear. While in well off area it was peaceful, in poor localities people afraid to lose livelihood were on the street with stones in their hands and the sealing drive had to stopped a number of times only to be scolded by Chief Justice, next day to make extra arrangement.
Y. K. Sabharwal retired from the post and after 4 months Mid day exposed all the facts. It was unbelievable. See picture above. Obliging High Court Judge ordered contempt proceedings against the journalist for above publication and sentenced them to jail for 4 months. Wisely Supreme Court immediately stayed this order. Misdeeds rather misconduct of Sabharwal were never subjected to any enquiry of any kind. He escaped scot-free. Irony is that he had also delivered a lecture on code of ethics which is hosted on the website of Supreme Court here. And this is an excerpt from concluding part of his lecture:
“Question arises as to what is the necessity of reiterating the principles which are known to all of us. I would answer it this way. The principles may be known to us. But with all democratic institutions facing the crisis of credibility in the fast changing socio-economic norms, there is always a need to keep reminding ourselves of the Code of Conduct the judiciary is expected to follow. These principles, if reiterated time and again, would hopefully get ingrained in the minds of young judges so that what is expected of them becomes their second nature. The reiteration is also required so that the public at large, in general, and the legal fraternity, in particular, are also wary and do not allow, or lead, those on the Bench into going astray.”
Mid day news paper also caved in and all published articles were gone. Journalist moved to other avenues and complained that Mid-day did not do follow up publications.
In 2010 Sabharwal’s sons purchased a new Banglow at Sikandra Road the location where film stars can barely afford an apartment. Price is public knowledge as they purchased it in a court auction for 900 million rupees. Thus their wealth shot up from 0.1 million in 2005 to at least 900 million in 2010.
Y. K. Sabharwal as judge of Supreme Court:
Sabharwal was a judge who would not get his hand dirty by digging into law too deep. He would prefer to decide cases on known interpretations or on logic of public interest. He often skirted cases involving subtle interpretation of law. Yet he did involve himself in a number of constitutional matters of importance. One was to head constitution bench to judge validity of Ninth Schedule of Constitution of India (Coelho’s case) which delivered a land mark law which held that inclusion of a law in ninth schedule may not prevent it from challenge that it violated basic structure of constitution and thus subject it to judicial review.
Sabharwal however again stumbled upon wrong foot when he observed in Coelho’s case that ADM Jabalpur case had been impliedly repealed in these word: (linked to full judgement)
The Constitution (44th Amendment) Act also amended Article 359 of the Constitution to provide that even though other fundamental rights could be suspended during the emergency, rights conferred by Articles 20 and 21 could not be suspended. During emergency, the fundamental rights were read even more restrictively as interpreted by majority in Additional District Magistrate, Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521]. The decision in Additional District Magistrate, Jabalpur about the restrictive reading of right to life and liberty stood impliedly overruled by various subsequent decisions.
In fact 44th constitutional amendment removed some of the basis of that judgement but the judgement remains intact. Supreme Court has yet to pronounce that ratio of that judgement that there is no ‘right to life’ independent of Constitution of India, is wrong. But Sabharwal was always too good a judge to know the subtleties of law.
While Y. K. Sabharwal was known to be a good mannered and affable person, whenever I picture him I remember him as a judge staring at watch to his right, expressionless while Arun Jaitly (present finance minister) was addressing him extensively quoting from judgement after judgement to review his ruling on summary sealing of properties (referred to as Martial Law in title above). Sabharwal, completely stone faced looked at wall. He never gave a reasoned order on any application for recall.
It was unfortunate to be centre of controversy in which Sabharwal let himself and to be remembered as most injudicious judge if not most corrupt Chief Justice of India, of course allegedly. He will however also be known as the judge because of whom contempt law was amended and ‘truth’ is now a permissible defence i.e. till some judge rules that truth itself is unconstitutional. May you rest in peace and impartiality now. Adieu.
These two links also contain opinions on the actions and defence of Y. K. Sabharwal:
Added on July 5, 2015:
As expected nobody from any political party or the Government of India issued any tweet, what to speak of press briefing in regard to Y.K. Sabharwal and his death. He was all there for his family who hopefully must have been there in his last hours.
Added on July 13, 2015
Times of India reporter, Dhananjay Mahapatra has written an article showing how bold Justice Sabharwal was as a High Court Judge and how brilliant his observations where that Constitution of India abhors absolutism. That no authority can call itself absolute. His question was: Will Y.K. Sabharwal figure among greatest of judges? (http://timesofindia.indiatimes.com/india/Will-Justice-Sabharwal-figure-among-the-great-judges-of-Supreme-Court/articleshow/48047825.cms)
My comment on this proposition would be as under:
Great Judges need not only talk great but also walk the talk. Did he follow his own observations in Raja Ram Pal judgement when he became law, judge, jury and executioner in case of sealing of properties put to non-residential use in Delhi?
Dhananjay, their lies your answer.