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How the Bombay Bar Association, spearheaded by Iqbal Chagla, forced then Bombay High Court Chief Justice AM Bhattacharjee to resign.
One SS Musafir was the Chief Executive of Roebuck Publishing, London. The odds are that you may not have heard of this fellow or his publishing house. Well, this mysterious fellow is linked with one of independent India’s greatest judicial scandals!
This is that story. However, lets start 61 years before, in 1933, when the protagonist of our story Ananda Moy, who would be at the centre of this judicial hurricane, was born. “Ananda Moy” means full of mirth or joy. This judge, if you read on, sadly had anything but that in the end.
Justice AM Bhattacharjee was born and brought up in Siliguri in the Bengal Presidency. Higher education, like all ambitious Bengalees, was to be in Calcutta. For Bhattacharjee, it was at Scottish Church College and the University College of Law.
Ananda Moy was no fancy barrister with a fabled ancestry. Though he enrolled himself as an advocate in the Calcutta High Court in 1957, he wisely decided to practice in the courts of Darjeeling, neighbouring Jalpaiguri, and in the Kingdom of Sikkim, north of Darjeeling, which India merged into herself while Bhattacharjee was trying to find his feet. He was, after all, the legal advisor to the Government of Sikkim from May 1972. In June 1976, at the age of 43, he was appointed as a judge of the tiny High Court of Sikkim. In 1985, he became the Acting Chief Justice of the same Court.
He remained forgotten, buried in the Himalayan outpost, but for his providential transfer to the Calcutta High Court in 1986. It is not known whether he had any role in this change. In January 1993, Bhattacharjee became the Chief Justice of the Calcutta High Court and the very next April, he was transferred as the Chief Justice of the Bombay High Court.
This is where begins our story.
Within a few months, tongues were wagging at the Bar that there were certain people known to all, who could get things “done”, and could “influence the course of judgments of” the Chief Justice. One of them, writes Smruti Koppikar, was a Calcutta based businessman and his personal friend Parasmal Lodha who was often seen in the Bombay High Court since the Bengali Chief Justice had assumed office.
Soon, these whispers in court corridors grew louder. Things grew worse when the news of the infamous “book deal” managed its way into the public domain.
Bhattacharjee had delivered a series of lectures on Personal Laws at the Calcutta University as a sitting judge of the Sikkim High Court in 1981. In 1985, Eastern Law House published these lectures in a book form. The book took a decade to make it to second edition, which was published in 1994. He had managed to get the great Justice Krishna Iyer to pen a foreword to this edition, where he described the lectures as “iconoclastic”!
Now enters into the scene the mysterious Musafir, the son of Gurmukh Singh Musafir, a former Chief Minister of Punjab. Musafir had moved to London three decades ago and was admittedly a trader of various goods, including lubricants, generators, marine engine spares, steam valves and, yes, publishing!
On September 9, 1994, Musafir’s two offer letters to purchase the international rights of the judge’s books on Hindu and Muslim Law landed up on Bhattacharjee’s desk.
Bhattacharjee then entered into a deal with SS Musafir, the Chief Executive of Roebuck Publishing, London, to publish his book 'Muslim Law and the Constitution'. Bhattacharjee had a scholastic bent of mind and no eyebrows ordinarily would have been raised but for the jaw dropping US $80,000 that Musafir was willing to part for the Judge’s work and that too as royalty for two years. If this was not enough, US$75,000 was being talked about as overseas publishing rights for his prior book 'Hindu Laws and the Constitution'!
“The insinuation was that the deal was actually a pay-off for fixing certain judgments.”
Nani Palkhivala too found it shocking, saying,
“He deals with the philosophical aspect of the subject. It is meant for a thinking 1 per cent. They are good, but not bound to be bestsellers or college texts.”
When the heat would be on the deal, Musafir would send a letter to Chief Justice AM Ahmadi contending that the book was to be translated into Farsi and marketed in Iran as well. He would write that the book was “a straightforward deal of purchasing an item and selling it in a different country in which I hope to make a modest profit”. Spoken like a true dealer in lubricants who forgot that Bhattacharjee’s book spoke of “perestroika” in Muslim Law, hardly something a mysterious Iranian business partner would want peddled in Khamenei’s Iran. When questioned by the press, Musafir would refuse to divulge this mystery man, simply saying
“My customer is confidential to me. I cannot name him.”
He expected to make Euro 300,000 (Rs 1.5 crore in 1995 prices) out of the deal!
The Bombay Bar Association now decided to put its foot down. The members started to demand action.
Bhattacharjee increasingly felt like Lady Jane Grey, the Nine Days’ Queen, whose legitimacy her subjects just could not digest. On February 14, 1995, he finally called in the Advocate General, TR Andhyarujina for a meeting. He assured him that he had decided to “proceed on leave from the end of February and would resign in April, 1995”.
Interestingly, there is a twist to this too. The judge, in his defence that the book deal was kosher, had claimed that during negotiations, he had twice consulted the Advocate General himself. Andhyarujina insisted that the details of the deal were never mentioned.
Iqbal Mahomedali Chagla, Bar President, and the other agitating lawyers were informed of this meeting by the top law officer. The news of the book scandal till then was not in the general media, and was only circulating among the Bar members.
Then suddenly, on February 19, 1995, the lawyers were surprised to read an interview which Bhattacharjee had given to the Times of India. He was quoted as saying that he “had not seriously checked the antecedents of the publishers and it was possible that he had made a mistake in accepting the offer.” He assured the reporter that he was not at all contemplating resignation and was merely proceeding on medical leave. Bhattacharjee would maintain that he himself figured out something was fishy when Musafir offered him $75,000 for his 1994 book and then he turned that down. He said,
“I can understand my first book having a market abroad but not the second one. I refused the offer and wrote to the publishers saying I was returning the earlier sum as well."
Bhattarcharjee had been clever by half and Chagla & Co would not allow themselves to be played like this. That very afternoon, a meeting of the Bar Council of Maharashtra and Goa passed a resolution seeking the Judge’s “resignation forthwith”.
On February 21, 1995, the Bombay Bar Association members requisitioned an extraordinary General Meeting for 2:15 PM the next day. The meeting was to discuss the financial deals of the Chief Justice “for a purpose other than the ostensible purpose thereby raising a serious doubt as to the integrity of the Chief Justice.”
The same day, the Free Press Journal had carried an article with the eye-catching title “For God’s sake, Go”. Terming the publisher as fictitious, the article said
“The so-called royalty received by him from a non-existent overseas publisher is most probably nothing but a “havala” transaction. As reports from London maintain, the publishing firm which remitted him $80,000 in royalty payments for a 100-page booklet does not exist.”
It explained that the judge must have panicked when people got wind of this deal and called off the second deal of $70,000 for alleged overseas rights of his already published work on Hindu Law.
Bhattacharjee must have panicked when he heard of what the Bar was proposing. He rang up Chagla that evening. By chance, Chagla was not available. Those were the days when people did not possess mobile phones! The Chief Justice then reached out through one Mr WY Yande and Chagla came over to meet him at his residence at 10 o’clock on the morning of the Bar’s extraordinary general meeting.
An agitated Bhattacharjee tried to pacify Chagla, who was determined to go through with the afternoon’s meeting. At one stage, he even showed him a letter dated February 17, 1995, addressed to the Chief Justice of India intimating him that he proposed to go on a month’s medical leave and then quit office thereafter.
When Chagla would not budge, the Chief played his last gambit. He promised he would resign within a week but his resignation would be effective some 10 or 15 days thereafter. For good measure, he promised not to perform judicial work during this time.
Chagla melted a little, perhaps sensing the desperation of the man. He told him that while he was not giving him any assurance, he would try to convince the other lawyers to defer the resolution!
Chagla had followed through and the meeting stood adjourned to March 1, 1995 at 5 PM.
If Bhattacharjee thought he had got the better of the Bar two times round, sadly, he was mistaken.
When Chagla inquired from the Chief Justice’s Principal Secretary on March 1, he was told that Bhattacharjee was sitting tight.
Chagla would not be fooled a second time round. That evening itself, after a full discussion with 185 out of 207 members voting in favour of the motion, the Bar Association resolved to demand Bhattacharjee’s ouster. The members who did not vote for the resolution felt that, as Smruti Koppikar points out, “a section of the bar was carrying out a witch hunt against Bhattacharjee because he was said to be a stern, no-nonsense judge and had rubbed many of them the wrong way with his decisions.”
Lawyer Niloufer Bhagwat had pointed out that the Bombay Bar Association had “never before” passed a resolution overnight without a report from the Bar Association Committee and, more importantly, the Bar Council does not entertain a complaint even against an advocate unless supported by an affidavit.
Sensing that the fence was narrowing, Ananda Moy finally threw in the towel by penning his letter of resignation to the President of India on March 6, 1995. It was to be effective from April Fools’ Day. Bhattacharjee wrote:
“It would no longer (have been) graceful to continue in office any more, to allow persons to make further statements and counter-statements, thereby undermining the dignity and the prestige of this great institution”.
Five years ago, this Bar had forced five of its judges to resign on grounds of corruption. Now it had felled even the Chief Justice!
One C Ravicandran Iyer, a practicing lawyer, moved the Supreme Court, in an Article 32 petition, seeking its intervention. He objected to the “removal by forced resignation, which is not only unconstitutional but also deleterious to the independence of the judiciary.” Iyer contended that “Judges are not to be judged by the Bar” and that the accusations against the judge, without proper investigation by an independent agency, would seriously damage judicial independence.
The petitioner sought a direction to restrain the Bar Association as well as the Bar Council from “coercing” Bhattacharjee to resign. He also sought a Central Bureau of Investigation probe into the episode. If the probe indicated his complicity, the petition even sought a direction to the Speaker of the Lok Sabha to initiate impeachment proceedings!
On March 24, 1995, the Court issued notice on this petition to the Bar Association, Bar Council and the Advocates’ Association of Western India. Even the Attorney General and the Supreme Court Bar Association were issued notice. The issue of judicial impropriety had singed every court. Mitta writes:
“Even as the Bhattacharjee controversy deepened, 178 lawyers of the Supreme Court Bar Association proposed a resolution urging (Chief Justice) Ahmadi to transfer out of Bombay High Court all such judges who have lawyer relations practicing there or staying in their official residence.”
Mitta explains that the move was to target the “son-stroke” effect. About a fifth of the 44 judges serving in the Bombay High Court had relatives practicing in the same court.
He writes that things took a turn for the worse when:
“another 167 lawyers in the bar association proposed that the resolution should include Supreme Court judges as well. It involved Ahmadi himself in the controversy as he is the only Supreme Court judge who has two children practicing law and residing with him.”
The proceedings in Court, however, would continue despite Bhattacharjee’s exit as the petition had raised serious questions of law. Fali Nariman, appearing for the Bar Association, contended that “Unless corrective steps are taken against Judges whose conduct is perceived by the Bar to be detrimental to the independence of the judiciary, people would lose face in the efficacy of the judicial process”.
Nariman in his booming voice thundered in court “Bar being a collective voice of the court concerned has responsibility and owes duty to maintain the independence of the judiciary”. He took the Court through the events to contend that, as Bhattacharjee had gone back on his word, the Bar was left with no option.
The Attorney General disagreed with Nariman. He had to. He said that, while such a Bar Association resolution would amount to scandalizing the Court, the Chief Justice of India could “pressure” such a judge to resign. He cited the example of the advice the Lord Chancellor of England had given to Lord Denning when the latter was caught in a controversy relating to his writing on jury trials.
On Teacher’s Day, 1995, the Apex Court issued a detailed judgment speaking through Justice Ramaswamy. The Court noted that “the independence of the judiciary is, therefore, most essential when liberty of citizen is in danger”.
“Bad behavior of one judge has a rippling effect on the reputation of the judiciary as a whole” noted the Court. “The edifice of the judiciary is built heavily on public confidence and respect.”
It then proceeded to survey the law on the independence of the judiciary to reach the critical issue.
“The hiatus between bad behavior and impeachable behavior needs to be filled in to stem erosion of public confidence in the judiciary”.
Whether the Bar would have a role in the rectification process was the moot question. After extensively discussing the law of contempt and the right of free speech of a lawyer, the Court concluded that for advocates who suffer constant ill-treatment at the hands of a particular judge, the responsible officer bearers should seek out an appointment with him and apprise him of the situation.
That failing, the best course for the Bar is to bring the issue to the doorstep of the Chief Justice of the Court or the Chief Justice of India, as the case may be, and till he takes a call, the Bar “should suspend all action” and “await for a reasonable period the response of the Chief Justice of India”. The in-house procedure would fill the “yawning gap” between the “proved misbehaviour” which was impeachable and “bad behaviour” which, though not impeachable, nonetheless eroded public confidence in the judiciary.
Sadly, Bhattacharjee’s misfortune did not end there, he even had to litigate to get his revised pension sanctioned! A cryptic order was passed allowing his Writ Petition No 2571 of 1999 on March 1, 2000 by Justice AP Shah.
Bhattacharjee’s book that brought him down is still available on Amazon, however stocks are limited!