Your Lordship, heal thyself!: UK court’s judgment in Nirav Modi case shows Indian judiciary needs to introspect and reform

By Srivatsa Krishna

A rare moment, testifying to the newfound global influence of Indian judicial, diplomatic, administrative and political apparatus, unfolded quietly inside a UK District Courthouse last week. Nirav Modi, a fugitive from law who had defrauded honest taxpayers of $2 billion, is on the cusp of extradition to India. In fact, in similar cases in the past, such as that involving an Interpol fugitive Iqbal Mirchi, extradition was not just refused by the UK, but even costs of about 100,000 pounds were imposed on India. The current judgment could not have happened, but for the clear political leadership given to the executive which made this possible, signalling to the world that India is not a banana republic to be taken for a ride.

District judge in the UK Samuel Goozee made some damning observations about two former Indian judges—of the Supreme Court and High Court, respectively—Markandey Katju and Abhay Thipsay. Judge Goozee gave the long-overdue castigation to the two former judges for their overt bias (while pretending to give “objective expert opinion”, and while doing so, prevaricating and revealing both their ineptitude and ignorance).

Per Goozee’s judgment, Katju had said of the Nirav Modi extradition matter that “because the BJP cannot solve India’s economic problems, it was like Hitler and the Jews”. That is, “Nirav Modi is the Jew that must be blamed for all the problems in India”. As an analogy, if IAS officers start blaming the SC or the HC for all the problems of the executive in India, won’t they be guilty of contempt? It is shocking Katju displayed such behaviour. Our judiciary no doubt has its own well-known faults, including instances of corruption, issues of recruitment and nepotism etc., like every major institution does—but to showcase this in front of a foreign judge, and too to protect a fugitive of the State, while being regarded as an expert is both sad and shocking!

Katju swore before the UK Court the following assertions. “He made bold assertions about corruption across the judiciary in India (including former Chief Justices) and that the Supreme Court had surrendered itself to the executive. Of note, despite being critical of a former Chief Justice passing a verdict in a SC case in exchange for a nomination to the Upper House of Parliament in India on his retirement on a quid pro quo basis, suggesting collusion and corruption, Justice Katju himself secured appointment by the government to Chairman of the Press Council of India following his own retirement,” the judge observed.

Katju had even told Goozee’s court that “In the last decade many more chief justices have come and gone, and it was known they were corrupt. That is my evidence, that is true. I am an insider—20 years a judge—I know the workings; over 50% of all judges are corrupt, this is my guess”.

His defence would likely be that the UK judge glossed over his evidence, but such a claim seems far from the truth since the 83-page judgment is meticulous. Or that a few judges praised Modi, which shows the courts’ capture by the executive. Counterfactually, will a judge be accepted as completely impartial only if he criticises Modi? Ranjan Gogoi, when he was a member of the infamous Judges Press Conference, was hailed as a hero, but when he became a Rajya Sabha member he was demonised. Everyone has their dirty linen, but our dirty linen is purely our dirty linen. Why volunteer to wash it in public, that too in front of the British, for the world to shame us?

Not only did Katju decry the “trial by media” in the Nirav Modi scam, but went on to hold his own press briefings on the scam and on his testimony before the UK Court, even before testifying before the Court and while the matter was still sub judice—doing exactly what he accused others of doing! Goozee had such scathing words for him: “I attach little weight to Justice Katju’s expert opinion. Despite having been a former SC judge in India until his retirement in 2011, his evidence was, in my assessment, less than objective and reliable. His evidence in court appeared tinged with resentment towards former senior judicial colleagues. It had hallmarks of an outspoken critic with his own personal agenda.”

Likewise, on Thipsay, the UK judge was even more strident and said: “Having checked his report dated 20th December 2019 and 29th June 2020, I note he has never disclosed his party-political affiliation either in the report’s biography or in relation to his declaration as an expert and disclosure of any potential conflict of interests. Justice Thipsay did not initially refuse to give evidence again in these proceedings, but he requested the court sit in private as he says, “it is likely to reduce the India media’s interest and the risk that the GOI will again use my evidence as a political vehicle and to malign me”.

Justice Thipsay explained in his evidence, “If the victim is not deceived then there is no cheating—there must have been a victim who has been deceived. If we see the case of the GOI in the extradition request, it is that all the accused who were in the conspiracy, those accused were not deceived. And therefore, the GOI has come up with an answer that it was PNB that was deceived. But I cannot find anybody deceived by issuing LOU”.
Even my andolanjeevi child who is in the second grade will clearly say that the above is completely illogical! Judge Goozee concluded, “In relation to Justice Thipsay, I attach no weight to his opinions set out in his reports and in oral testimony”.

Given that the UK Court has reposed faith in the Indian system with this highly visible order, I request the SC to reflect on two broad themes. First, why not accept a more neutral mechanism such as the National Judicial Appointments Commission or any variant thereof, for streamlining the process of appointment of judges, instead of the opaque collegium method? One where not just the elected executive but a broader cross section of society has some say—not necessarily the final say? Second, a walk down select parking lots of some courts in the country would reveal entrepreneurship at its best, that of “pen-drive judiciary” (judgments supplied in pen-drives by some lawyers to select bad apples). There are allegations of how bench-shopping happens (people say, it is just surprising that it is not on Amazon yet!), how dubious methods are used to secure some key judgments. Why don’t the highly respected, venerable judges of the SC give us a judicial system befitting the rising economic and political stature of India? Your Lordships, this is my earnest personal plea as a concerned citizen and, hopefully, the plea of every right-thinking Indian. Along the way, please start off by sentencing judges Katju and Thipsay for contempt for lowering the reputation of the Indian judiciary in a foreign land for the world to see.

The author is an IAS officer
Views are personal
Twitter: @srivatsakrishna