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Updated: October 18, 2013 01:20 IST

"No ground to make presidential reference against Justice Balakrishnan"

J. Venkatesan
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The Centre on Thursday informed the Supreme Court that there was no ground to make a presidential reference for removing Justice K.G. Balakrishnan as chairperson of the National Human Rights Commission (NHRC) for alleged acts of misbehaviour. There was no evidence against him in the probe conducted by the Finance Ministry.

Solicitor General Mohan Parasaran told this before a Bench of Justices B.S. Chauhan and S.A. Bobde, hearing a writ petition filed by Common Cause seeking a presidential reference for removal of Justice Balakrishnan. He said no reference could be made to the apex court according to Section 5 (2) of the Protection of Human Rights Act, as the acts of ‘proved misbehaviour’ could not be construed to include within its ambit allegations pertaining to a person’s conduct in the previous office.

Counsel Prashant Bhushan, however, argued that the Centre’s argument was absurd and it was a laughable interpretation and at least one of the charges related to his functions during his present tenure as NHRC chief.

“A serious issue”

Justice Chauhan told counsel that the only question to be decided was whether we could ask the government to seek a reference to ourselves “since we [Supreme Court] will be the enquiry officer”. “It is a serious issue. We will go through the judgments and decide.” The Bench then posted the matter for final hearing on October 30.

The Centre, in its affidavit, said it must be noted that at the time of appointment of Justice Balakrishnan as NHRC chairperson in 2010 there was no controversy, nor were there any allegations or established misbehaviour on his part and his appointment was never challenged. Justice Balakrishnan’s conduct as CJI could not be a ground for making a presidential reference to this court under Section 5 (2) of the PHR Act.

CBDT report

The affidavit said the representation submitted by Campaign for Judicial Accountability & Judicial Reforms containing allegations against Justice Balakrishnan and his relatives was referred to the Central Board of Direct Taxes (CBDT), which in its enquiry report stated that it could not be established that the properties were held by his relatives as benami on behalf of Justice Balakrishnan. Despite there being no allegations regarding professional receipts, they were nevertheless examined and it was found that there was no material to link such payments to any cases pending in the court concerned.

Referring to the petitioner’s contention that the former judge of the Calcutta High Court, Soumitra Sen, was proceeded against for impeachment for his misconduct during his tenure as an advocate, the Centre said that Justice Sen’s case was different as his misconduct continued even while he was a judge. It could not be compared with the present one as Justice Balakrishnan was not holding a judicial office. Contending that mere allegations against Justice Balakrishnan were not enough to make a presidential reference for his removal, the Centre sought dismissal of the petition.

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