Saturday, May 19, 2018

Judge Loya Case: Hit-wicket of a Judgment

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Supreme Court of India

At eight days remove (April 11, 2018 and April 19, 2018) the Supreme Court of India handed out two important judgments: Asok Pande case and Judge Loya’s case. Coincidentally (or ironically) it was the same CJI-led 3-judge bench that passed both the judgments. More coincidentally (or more ironically) it was Justice D.Y. Chandrachud who authored both the judgments.
The Loya judgment runs into 114 pages. Six pages (106-111) across six paragraphs (71-76) are devoted to Public Interest Litigation issues. Since many legal commentators have critiqued the judgment incisively. I’ll only focus on the 6 paras alluded above.

Paragraph 71 of the judgment deals at length on Public Interest Litigation (PIL) and the Bench has rightly observed inter alia that “The essential aspect of the procedure is that the person who moves the court has no personal interest in the outcome of the proceedings apart from a general standing as a citizen before the court. This ensures the objectivity of those who pursue the grievance before the court... public interest litigation has become a powerful instrument to preserve the rule of law and to ensure the accountability of and transparency within structures of governance.”

So far so good – nothing to quibble about the well-known spirit and efficacy of PIL. Yet, read as a whole this seems mere foregrounding – a preamble to the real thing. 

From paragraph 72 one senses the purpose of foregrounding as the crescendo rises. “… it [PIL] has been realised that this jurisdiction is capable of being and has been brazenly mis-utilised by persons with a personal agenda… a desire to seek publicity… instituted at the behest of business or political rivals to settle scores behind the facade of a public interest litigation. The true face of the litigant behind the fa├žade is seldom unraveled.”

Paragraph 73 sees more of the same banality and the rising crescendo. “The misuse of public interest litigation is a serious matter of concern for the judicial process. Both this court and the High Courts are flooded with litigation and are burdened by arrears… It is a travesty of justice for the resources of the legal system to be consumed by an avalanche of misdirected petitions purportedly filed in the public interest which, upon due scrutiny, are found to promote a personal, business or political agenda. This has spawned an industry of vested interests in litigation…. Worse still, such petitions pose a grave danger to the credibility of the judicial process…. There is a danger that the judicial process will be reduced to a charade, if disputes beyond the ken of legal parameters occupy the judicial space”.

The same pontification from the pulpit continues in paragraph 74. “Repeatedly, counsel for the petitioners and intervenors have attempted to inform the court that they have no personal agenda and that they have instituted these proceedings to protect judicial independence… But… it has become clear that the petition is a veiled attempt to launch a frontal attack on the independence of the judiciary and to dilute the credibility of judicial institutions. Judicial review is a potent weapon to preserve the rule of law. However, here we have been confronted with a spate of scurrilous allegations. Absent any tittle of proof that they are conspirators in a murder the court must stand by the statements of the judicial officers.

Paragraph 75 goes ballistic – against the petitioners’ and the intervenors’ counsels. “We must in this context record what we have heard during the course of the submissions. Mr Dave has urged that (i) he wants to cross-examine the judges; and (ii) he does not believe the judicial officers. Aspersions have been cast on the Administrative Committee of the Bombay High Court. This court has been called upon to issue a notice of contempt to the judges on the Committee at the relevant time. Ms Jaising has joined the fray by requesting that this court to issue contempt notices to the Administrative Committee of the Bombay High CourtEven the judges of this Bench hearing the present proceedings, have not been spared from this vituperative assault on the judiciary.”

Paragraph 76 is Prashant Bhushan’s preserve: “Mr. Prashant Bhushan argued that because two of the judges constituting the present Bench (Justice AM Khanwilkar and Justice DY Chandrachud) were judges of the Bombay High Court, they may have known the judicial officers who have submitted statements or Justice Bhushan Gavai and Justice SB Shukre. If this were to be the test, it is rather ironical that the petitioners had instituted proceedings before the Bombay High Court each of whose judges were expected to be faced with the same situation. We informed Mr Bhushan that a decision as to whether a judge should hear a case is a matter of conscience for the judge. There is absolutely no ground or basis to recuse. Judges of the High Court hear intra court appeals against orders of their own colleagues. References are made to larger Benches when there are differences of view. Judges of the Supreme Court hear appeals arising from judgments rendered by judges of the High Courts in which they served... We emphatically clarify that on the well-settled parameters which hold the field, there is no reason for any member of the present Bench to recuse from the hearing. While it is simple for a judge faced with these kinds of wanton attacks to withdraw from a case, doing so would amount to an abdication of duty. There are higher values which guide our conduct... Serious attacks have been made on the credibility of two judges of the Bombay High Court. The conduct of the petitioners and the intervenors scandalises the process of the court and prima facie constitutes criminal contempt.

One wonders if this is how anger finds expression in judgments. If Prashant Bhusan made a reference about the possibility of the two apex court judges knowing the judges of the Bombay High Court and in Maharashtra, the right thing is to answer them in the courtroom and bring it to a closure. You don’t rush matters to the Supreme Court when the cause of action is in the High Court’s jurisdiction. That the petitioners instituted “proceedings before the Bombay High Court each of whose judges were expected to be faced with the same situation” is facetious, to say the least. High Courts have no choice; Supreme Court has.

Same goes for Supreme Court judges hearing appeals arising from judgments rendered by judges of the High Courts in which they served – it’s tautological! Even a judge’s recusal. But underpinning these are a few universal legal axioms: justice mustn’t only be done but seen to be done; judges must be men of integrity and impartial, and be thought to be so; and that judges must be like Caesar’s wife – above board.  

Nor can one appreciate the judgment’s sermonizing: “While it is simple for a judge faced with these kinds of wanton attacks to withdraw from a case, doing so would amount to an abdication of duty. There are higher values which guide our conduct”. How is this abdication of duty? Duty at times entails stepping down or aside to make way for someone else placed and viewed differently to perform duty of that station that’s more universally beyond misgivings: justice mustn’t only be done but seen to be done!

Equally, to aver “There are higher values which guide our conduct” sounds hollow when stressed, more when not warranted. Higher values are higher callings, intrinsic to one’s conscience and need no declamation; every declamation demeans and belittles purity of higher values, thereby trivializing its sacredness and pulling it down in ample notches. Judgments needn’t be assertions-on-wheels.

Nor can one appreciate how “Serious attacks have been made on the credibility of two judges of the Bombay High Court”. My fallible memory rushes back to the Indian Express report: what prompted the two judges to speak with the reporters? Was there anything to reiterate and add, beyond what they had said in the Discreet Inquiry to be made public? Judges, like any common man, are human too, embracing same attributes and failings.

If this judgment endeavours to ring fence the notion that judges don’t lie, even when and especially when not performing judicial duties, let me narrate an incident of the late-1980s. One Justice Ranganath Misra, then a Supreme Court judge and far higher in judicial perch than the four judges in the case, had been invited to address a function where he said (not the exact words, but something to this effect): We don’t want women to grow up… from 4 feet to 5 feet or more… Their place is in the kitchen! The news when published created a furore. When approached to issue an apology, Justice Misra denied to have said so. Only when confronted with the tape did he issue an apology!

That said, how credible is the judgment’s assertion? “The conduct of the petitioners and the intervenors scandalises the process of the court and prima facie constitutes criminal contempt”. Are then judges’ words even outside their judicial work and when acting as a common man to be taken as gospel truth because they do not and cannot lie? If a demand is made by the petitioners/intervenors and their counsels for them to file affidavits, does it amount to scandalizing the process of the court and prima facie constitute criminal contempt?

Not to forget that the case was transferred out of Bombay High Court jurisdiction despite Dushyant Dave arguing against it. This is puzzling – even contradicts the judgment itself that says that the Supreme Court is flooded with PILs forcing accumulation of more arrears. Yet the court devoted 9 sittings (Mondays and Fridays at 2 pm) to hear the case and enormous time to peruse volumes of documents and write the judgment. Several experts have commented on its legal merits, one even calling it the “ADM Jabalpur” moment of modern-day Supreme Court – not a pretty commentary.

Nor do the counsels’ action “prima facie constitutes criminal contempt”.

Nor even that “… we have chosen not to initiate proceedings by way of criminal contempt if only not to give an impression that the litigants and the lawyers appearing for them have been subjected to an unequal battle with the authority of law”. One senses this is not so much a threat as debunking Prashant Bhusan; then equating fairness with catholicity, and thereafter memorializing such surges of large-heartedness in the judgment for future referencing. This is as unfair as it can get.

The bristling vented in the judgment doesn’t seem only this case’s making. It seems a case of accumulated angst and past grievances held against them, accentuated now with the spate of cases (Prasad Education Trust and its reverberations in Master of Roster et al) that have told on the apex court’s functioning in the last 6-8 months, which both Dushyant Dave and Prashant Bhusan have highlighted.

Interestingly, this isn’t the first time that Prashant Bhusan has been threatened with contempt. Not too far back on November 10, 2017 when pleading before the 5-judge bench on the Master of Roster issue, the CJI had remarked that “You (Prashant Bhusan) are beneath contempt” (sic). What it meant and what the underlying implication was is best left for others to fathom.

While such threats are nowhere new, it needs recalling that when Prashant Bhusan was charged for contempt in 2010 in the corruption case of past Chief Justices of India, his father, Shanti Bhushan, in an affidavit had said those immortal lines that he “be added as a respondent to this contempt petition so that he is also suitably punished for this contempt. The applicant would consider it a great honour to spend time in jail for making an effort to get for the people of India an honest and clean judiciary.” Neither was the threat of contempt carried out nor the case of corruption in the highest rung of judiciary been heard and adjudicated yet.

Issues of corruption continue to assail the Supreme Court, only exacerbated in the last few months and these are the ones that Dushyant Dave and Prashant Bhusan have tried to address.

Far from them scandalising and committing contempt of the court, they have plumped for judicial transparency and accountability. Fali Nariman once said that “the offence of scandalising the court is a mercurial jurisdiction in which there are no rules and no constraints.” While the Contempt of Courts Act, 1952 carries no definition of ‘contempt,’ a definition was introduced in the Contempt of Courts Act, 1971. Yet there is “no definition of what constitutes scandalising the court, or what prejudices, or interferes with, the course of justice”.

How off-centre we are from the English contempt law from whom we inherited the idea! Fittingly, let the final word on contempt of court go to Lord Salmon and Lord Denning.

Lord Denning in R vs. Commissioner of Police (1968): “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself…We must rely on our conduct itself to be its own vindication.

Lord Salmon in AG vs. BBB (1981): “The description ‘Contempt of Court’ no doubt has a historical basis, but it is nonetheless misleading. Its object is not to protect the dignity of the Courts but to protect the administration of justice.”

Given this background and given the judgment’s tone and tenor, the inevitable question is: how fair is this judgment? One may even add the issue of application of equal standards to all petitioners/counsels. If Dave’s and Bhusan’s conduct was deplorable, was Rohatgi’s any less? How’s that Rohatgi who interfered repeatedly as the opposite counsels made submissions, there is no reference, not even a whisper, to such execrable behaviour in the judgment! Nor is there any mention of the serious conflict of interest alleged by Dave against Rohatgi, Salve and Sisodia.

More nagging thoughts assail the mind. How can questioning the action [transferring one CBI special judge (J.T. Utpat) and getting another (B.H. Loya)] of the Administrative Committee of the Bombay High Court in violation of Supreme Court direction and asking the apex court to issue a notice of contempt, scurrilous? Even the choice of words is telltale: Ms Jaising has joined the fray to issue contempt notices to the Administrative Committee.

Suspicions raised on facts and on preponderance of probabilities have been smothered that it doesn’t warrant fresh independent investigation impugns native commonsense. It’s a hit-wicket of a judgment! Wonder if some day the judiciary will regret this self-goal. Amen!

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