Tehelka expose: Probe by sitting judge unlikely

By Harish Khare

NEW DELHI, MARCH 17. The Chief Justice of India, Mr. A.S. Anand, is believed to have turned down the Government's request that a sitting judge of the Supreme Court be spared for conducting an inquiry into the Tehelka expose. The Prime Minister, Mr. Atal Behari Vajpayee, had announced the Union Cabinet's decision to hold a judicial probe in a national broadcast on Friday.

Though Union Law Ministry sources said a formal request (for a sitting judge) had been sent today, it is learnt that Mr. Justice Anand was sounded on Friday evening before the Cabinet met. He is believed to have firmly told the governmental interlocutor that it would be difficult to spare a sitting judge; hence, the caveat in the Prime Minister's broadcast of a ``sitting or retired'' judge.

The probe will, in all probability, be undertaken by a retired judge. The Government is not obliged to consult the Chief Justice in the choice of a judge in case a retired judge has to conduct a probe.

The Chief Justice's reluctance is being explained as part of a well-formed belief that the apex court should stay away from probing politically-sensitive cases under the Commission of Inquiry Act, 1952. The judicial fraternity was unhappy with the controversy that followed when it spared a sitting judge, Mr. Justice Wadhawa, to probe the burning of Graham Staines and his two sons in Orissa.

In the case of the Tehelka probe, the reluctance is even more pronounced. It is evident that the Government expects the inquiry judge to clear the name and restore the honour of the former Defence Minister, Mr. George Fernandes. No sitting judge of the Supreme Court is likely to accept the brief.

In the recent past, probes by sitting judges - like Mr. Justice Verma (lapses in Rajiv Gandhi's security), Mr. Justice M.P. Thakker (Indira Gandhi assassination), Mr. Justice Ranganath Misra (the 1984 anti-Sikh riots) - yielded a rich crop of political controversies.

Political bickerings apart, there is a feeling that the apex court was already burdened with a heavy case load, and sparing a sitting judge would not help matters. After the tragic railway accident in Punjab in December last, the (then) Railway Minister, Ms. Mamata Banerjee, had announced in Parliament that a sitting judge would probe the mishap; she made the announcement without consulting the Chief Justice of India, and later had to be satisfied with a retired judge.

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