JUDICIAL PERFIDIES-24

 

Melukote is a small village about 50 kms from Mysore. Its inhabitants, mostly Mandyam Iyengars, do not celebrate Diwali, one of the most important national festivals of India, that celebrates victory of the good over evil. It was in 1790 that on the Diwali eve that Tipu Sultan killed their ancestors- men, women and children, sparing none.

 

Today, when D Y Chandrachud assumes the most powerful office of the nation as the Chief Justice of India, I remembered Melukote alongwith Sabarimala.

 

It was four years back that Chandrachud was part of a bench of 5 judges of the apex court that had delivered the infamous verdict permitting women of all ages in Sabarimala, overturning the decision of a bench on the same issue delivered more than a decade earlier. Even in the majority verdict that permitted women of all age groups to enter the temple, it is pertinent to note that the lone dissenter was the lone woman judge of the bench.

 

I remember one of the biggest mobilization of women protestors in Kerala, was in the aftermath of this verdict. There were also reports of Hindu diaspora all over the world extending support to these protests. Shockingly, even when appeals had been filed for review, the court not only deferred them but explicitly stated that there is no stay on the order, leading to a period of great turmoil in the state that can be compared with the atrocities committed by the authorities in the northern parts of the country during the Emergency days. If media reports are to be believed, more than 40,000 cases were filed against 60,000 odd devotees protesting to defend their faith.

 

Being a layman, but adequately literate to read and understand the Constitution, written in English, I believe that even hard core rationalists cannot deny that if any intervention had to be made by the court it was to be made in the matter of Article 25(2)(b) by making it non-religion specific and not to re-interpret Article 26 in a whimsical manner.

 

While the rights under Article 26 is provided to every religious denomination, the mandate of Article 25(2) (b) is to throw open Hindu religious institutions of a public character to all classes and sections of Hindus only. Interestingly, Sabarimala is one of the rarest temples in India where not only men but women of all hues, irrespective of their caste, creed or religion, are allowed entry, except for those in a certain age group. I am shocked at this being interpreted as gender based discrimination.

 

Compounding the matter further was a report that the Kerala High Court had dismissed a petition, post the controversial Sabarimala verdict of the apex court, seeking permission for entry of muslim women in their institutions of worship.

 

Of course Chandrachud was only one of the 4 judges who gave the majority verdict in favour of women of all age groups entering Lord Ayyappa’s temple at Sabarimala. But what has been worrying me is his inability to walk the talk while talking too much all the time.

 

Take the case of granting bail to the son of Shah Rukh Khan. Chandrachud almost breathed fire when this celebrity kid, charged in a drug case, was granted bail and the under-trial was not released within 24 hours. Given the fact that almost 75 percent of the inmates in our jails are under-trials and many of them have been there for more periods than they would have been sentenced to had they been convicted, can you blame anybody who would doubt the wisdom of this judge in balancing idealism with pragmatism?

 

A report,  ‘A Future CJI's Empty Rhetoric, Woke Liberalism And Why We Should Worry’, dated Jul 14, 2021 at https://swarajyamag.com/ideas/a-future-cjis-empty-rhetoric-woke-liberalism-and-why-we-should-worry states: Justice Chandrachud may be the doyen of India’s Lutyens media and Left-liberals, but it seems that he is planning to introduce his own ideas of what constitutes justice, using his own lenses, and those of legal luminaries in the Christian West.

 

Also, at an Indo-US conference on legal ties, Justice Chandrachud, while correctly talking about the need to avoid using terror laws to stifle dissent, made unwarranted remarks about how he sees justice being delivered. The Supreme Court, he said, should play the role of a “counter-majoritarian institution”, and it was its duty to protect socio-economic minorities.

 

I had posted the following comments:

 

Yes, Criminal, anti-terror laws should not be misused to quell dissent. But the judiciary can and will use contempt of court law to even send high court judges who are whistle blowers to jail. Recollect the case of High Court judge Karnan. He not only did not get his grievances addressed, forget redresssed, he was sent to jail for 6 months under contempt of court laws.

 

Chandrachud has stated another truth without making it explicit. He has said 'it’s the duty of the court to protect the rights of socioeconomic minorities' Thank God he has used the term socio economic minorities, instead of weaker and marginalised sections of the society. This is in keeping with the belief that 'truth will out'. Because it is openly visible that the courts do indeed protect the rights of socio economic minorities. Only thing is that these minorities are the real minorities at the top of the ladder both socially and economically. If you still can't see the facts for what they are, then ask yourself why are cases against Raja, Kanimozhi, Sonia, Rahul, P Chidambaram etc not progressing for so many years now. Also ask, why are the poor accused languishing in jails as undertrials, mostly for periods longer than for which they would have been sentenced to if convicted.

 

In my critique, Judicial Perfidies-23, I had dealt with a petition, seeking not to appoint Chandrachud as CJI, sent to the then CJI on 04 November 2022, through e mail. So I wouldn’t go into the details here. However, I had stated that While we should be thankful that the apex court did not repeat the faux paus as in the case of a former Chief Justice of India accused of molesting a woman, I find there are reasons to go a little deeper into the matter than swallow, hook, line and sinker, whatever the reasons for the dismissal, as given by the court.

 

The faux paus I was referring to was of course about the CJI himself chairing the bench that was convened first to consider the allegation against himself. In this case, while it was not Chandrachud who presided or even participated in the bench that heard the petition, there was still impropriety.  This was because it was the CJI, who had recommended Chandrachud as his successor, who headed the bench that decided the petition seeking to bar Chandrachud being appointed the CJI.

 

Again, I must confess my ignorance of the intricacies of law but I am only comparing reports that informed the ordinary citizens of various judges excusing themselves from benches on grounds that they had dealt with the issues under consideration of the bench under different circumstances/roles.

There have been many eulogies published about the newly anointed CJI. Not surprising either.  Among the many, I found the following two interesting:

 

‘Action sought against lawyer who alleged Justice Chandrachud passed orders to help his son's client’,  Oct 11, 2022 at https://www.indiatoday.in/law/story/action-sought-against-lawyer-alleged-justice-chandrachud-passed-orders-help-son-client-2283700-2022-10-11 and ‘Bar Council of India responds to allegation against Justice DY Chandrachud’, Oct 8, 2022 at https://www.indiatoday.in/law/story/bar-council-of-india-responds-over-allegation-against-justice-dy-chandrachud-2282852-2022-10-08.

 

The report dated 11/10/2022 states that the Bombay Bar Association has sought strict action against Pathan and those associated with him in preparation of the complaint against Chandrachud being appointed as CJI.  About the allegation that Chandrachud had passed an order in a matter which was allegedly connected to a matter where his son Abhinav Chandrachud appeared, the BBA resolution has stated “There is nothing on the record to demonstrate the connection or anything to indicate that the Judge would have known of any connection,”.  Quite possible. There could be no record to indicate that the judge would have known of any connection. But the Bar Council Rules are clear and the administrative order of Binod Kumar Roy, Chief Justice of the Punjab and Haryana High Court restricting relatives of certain  judges from appearing before them was also clear and logical. (See ‘Judge Dread’ at http://www.outlookindia.com/article/Judge-Dread/225624.) Since it has been analysed in fair details at Judicial Perfidies-23 I shall refrain from delving into it here.

 

The report dated 08/10/2022 is also of the same genre. The Bar Council has stated that it has thoroughly examined the contents of this 165-page long letter and it finds that it is nothing but a scurrilous and malicious attempt to interfere with the functioning of the judiciary and the administration of justice. It has gone on to state that No details of Pathan are furnished in the complaint, no address or nature of body this man claims to represent is there. In this context there is only one question I would like to pose: without even such basic information about the petitioner, how did the petition get filed in the apex court at all? Or is this a different letter and the Bar Council did not have access to the petition filed, which, by the way is 764 pages long and is available at FINAL WRIT FOR UPLOAD.pdf - Google Drive.

 

Let me narrate here one of my own experiences with the Bar Council of Kerala.

 

In the early 2000s had pursued three issues, in one complaint against the railways, with the then Consumer Disputes Redressal Forum of my district. The issues were:

 

(a)   declaring certain trains as superfast and charging the  passengers/ consumers Superfast Charges without providing any additional facilities/ savings in time (without any doubt a deficiency in service as defined in the CPA, Sec 2(g), (o) and (r)(ii)).

(b)   showing  inflated/false distance (1485kms for an actual distance of 1197kms!) on the ticket and collecting fares for the inflated/false distance (again a case of outright cheating and falling within the purview of the CPA, Sec 2(g), (o) and (r )(i)) and

(c) levying charges for facilities NOT used by the passengers under the Tatkal services, in that they apart from charging Tatkal Charges also insist that the passenger purchase tickets from the starting station of the train to its destination even when the passenger has to travel only between intermediate stations enroute (Sec 2(nnn) of the CPA).

The Forum dismissed the complaint after 8 months stating that it does not fall within the purview of the Consumer Protection Act and directed me to pursue it with the Railway Rates Tribunal. The RRT, Chennai replied that it does not fall within its jurisdiction either.

 

I had complained against this decision to the Bar Council of Kerala. The respondents were the advocate who had represented the Railways and the law qualified member of the Forum. I was asked to submit 30 additional copies (!), which I did. I did not get any response from them for a long time. Finally, through the RTI Act route, I got the copy of the decision which had simply stated that the complaint has been dismissed.

 

I still keep wondering about the need for 30 copies of the complaint. Even the largest bench of the apex court, to the best of my knowledge and understanding, has been only of 13 judges in the Kesavananda Bharti case of 1970. (The case is also known as the Fundamental Rights Case. The court in a 7-6 decision asserted its right to strike down amendments to the constitution that were in violation of the fundamental architecture of the constitution. It is a different thing that the same court, through a series of judgments later, violated this decision while usurping the role of the Executive to appoint and transfer judges to our higher judiciary.)

 

I shall conclude this part by quoting Chandrachud himself, as reported at https://www.theweek.in/theweek/current/2022/11/04/justice-d-y-chandrachud-is-known-for-giving-law-a-human-face.html (‘Justice D.Y. Chandrachud is known for giving law a human face’, Issue Date: November 13, 2022):

 

▸ “We will not adjourn the matter. We don’t want the Supreme Court to be ‘tareekh pe tareekh’ court. We want to change this perception.”

 

▸ “It is well for a judge to remind himself that flattery is often the graveyard of the gullible.”

 

▸ “History and contemporary events across the world are a reminder that blackouts of information are used as a willing ally to totalitarian excesses of power. They have no place in a democracy.”

 

▸ “The essence of judging is compassion. You take out compassion from judging, and you will be left with only the husk.”

 

While the above quotes are self explanatory, I am looking forward to our new Chief Justice walking the talk, particularly in the manner he is going to curb tareekh pe tareekh, complying with the mandatory disclosures under the RTI Act (at present the apex court web site has not disclosed the information under Sec4 (1)(b)(x)- the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations- in respect of judges) and amending the Court’s RTI Rules to provide information on the judicial side too under the RTI Act and in dealing with the poor under-trials in our jails.

 

Wishing him all the best in his promised endeavor to bring a semblance of law and order within the judiciary.

 

 

P M Ravindran/ raviforjustice@gmail.com                                               09 November 2022

JUDICIAL PERFIDIES-23

 

30 August 2022 has to be a Grey Letter Day in the history of free India’s judiciary.  That is the day when a three member bench of the apex court closed the contempt of court case against Adv Prashant Bhushan and journalist, Tarun Tejpal. The case was simple. The acclaimed crusader for judicial reforms had, in an interview given to Tehelka, in 2009, alleged that 8 Chief Justices of India were corrupt. Later in an affidavit submitted to the court he had named them and explained his reasons for making such an allegation.

 

The case had been hanging fire over the two for over 13 years, while the nation itself had been wondering whether it will ever be decided in their life time. The case had been listed many times and partly heard by many judges, the last of which was a bench headed by Arun Mishra in 2020, after a gap of eight years.

 

During that hearing, Bhushan had said “In my interview to Tehelka in 2009, I have used the word corruption in a wide sense meaning lack of propriety. I did not mean only financial corruption or deriving any pecuniary advantage. If what I have said caused hurt to any of them or to their families in any way, I regret the same”.

 

When the bench did not accept the regrets, Bhushan had asked the three judges to send the case to a Constitution Bench and suggested five issues that it could be asked to rule on. The important among the five was: “Whether the expression of a bona fide opinion about the extent of corruption in any section of the judiciary would amount to contempt of court.” And If yes, “Whether the person who expresses such opinion…is obliged to prove that his opinion is correct or whether it is enough to show that he bona fide held that opinion.” (‘Supreme Court closes 2009 contempt case against Prashant Bhushan, Tarun Tejpal’, Aug 30, 2022 at https://www.hindustantimes.com/india-news/supreme-court-closes-2009-contempt-case-against-prashant-bhushan-tarun-tejpal-101661868144791.html)

 

Arun Mishra did not decide the case. But in another contempt case on two tweets, the same judge went on to award a fine of Re 1/- to the same contemnor. While the judge might have placed such a low cost for criminal contempt, it cannot be said of the tax payer.

 

The recent verdict by the 3 judges’ bench, headed by Indira Banerjee, indicates that the regrets were finally accepted after senior advocate Kapil Sibal informed the bench that an apology has been tendered. (‘Supreme Court closes contempt case against Prashant Bhushan, Tarun Tejpal’, August 31, 2022 at https://indianexpress.com/article/india/supreme-court-contempt-case-prashan-bhushan-tarun-tejpal-8120346/)

 

Incidentally, the copy of the judgment could not be accessed at the apex court’s website even though searches were made based on date of verdict, judge name and free text.

 

For one who has been demanding the abrogation of the contempt of court provisions of the Constitution simply because it is anathema in a democracy, this judgment hardly merited rejoicing. The scepticism was born out of my own observations of the functioning of our courts which had been succintly captured by Radha Rajan, in an article ‘High Court and Supreme Court ‘jallikattu’ the PCA Act’, published on 21 February 2012 at http://www.vijayvaani.com/FrmPublicDisplayArticle.aspx?id=2195. She had written: '...for judges of the Madras High Court and the Supreme Court, the PCA Act is a dog is a monkey is a bear is an elephant; intriguingly, a dog is also not a dog on another day.' I normally refer to such series of judgments as judicial flip flops. In this case my thoughts were also influenced by the quip Let the dogs bark, the caravan will move on… which paraphrased for our context could well be let the mango people criticize, we, the judges, couldn’t care less..

 

And vindication has not been long in coming.

 

 M.A. Shaikh, Vice President of ‘Indian Lawyers and Human Rights Activists' Association’ had recently filed a petition before the apex court seeking to disqualify CJI designate D Y Chandrachud, from assuming office on 09 November 2022. The allegations include misuse of power by Justice D.Y. Chandrachud in discriminating between ‘Senior and Junior Lawyers’ and ‘rich and poor litigants’ and passing contrary orders in the similar cases. The instances show that Justice Chandrachud granted relief to rich people and Senior advocates and dismissed the request of poor people and junior advocates.

 

The blog, dated 27 Oct 2022, at https://rashidkhanvaccineblog.blogspot.com/2022/10/important-justice-chandrachud.html also informed its readers that Supreme Court Advocate Anand Jondhale is going to represent the petitioner and around 70 counsels from Indian Lawyers Association are going to assist him.

 

While a bench headed by CJI Lalit had dismissed the plea on 02 November 2022, after an impromptu hearing, the redeeming fact is that the petitioner has neither been penalized for wasting the court’s time nor hauled up for contempt. May I say that Indira Banerjee judgment in Prashant Bhushan case has survived this one time?

 

The petition was listed post haste on 02 November and dismissed by a 3 member bench, headed by the outgoing Chief Justice himself, with the observation that the entire petition was "misconceived.  While we should be thankful that the apex court did not repeat the faux paus as in the case of a former Chief Justice of India accused of molesting a woman, I find there are reasons to go a little deeper into the matter than swallow, hook, line and sinker, whatever the reasons for the dismissal, as given by the court.

 

One of the allegations, in the 764 pages writ, which is available at FINAL WRIT FOR UPLOAD.pdf - Google Drive , is as follows:

 

For hearing a case where he is disqualified because of two reasons:

 

(a) His son Adv. Abhinav Chandrachud appeared for the one of accused before High Court for the same connected FIRs. [Writ Petition (Cri) No. 3199/ 2021 order dated 20.09.2021]

 

(b) Because in the impugned order before him Adv. Nilesh Ojha appeared as a counsel who, on  earlier occasions also in 2018 acted as a counsel for complainant when a complaint is filed against Justice D. Y. Chandrachud and his son Adv. Abhinav Chandrachud [Case No. PRSEC/ E/2018/21401]

 

This allegation is simple to understand and validate.

 

We are aware of Bar Council rules that forbid relations of judges from appearing before them. But like Prashant Bhushan’s definition of corruption, today the definition of relation also has a wide connotation. Here, let me quote from a report ‘Judge Dread’, published on 08 November 2004 at http://www.outlookindia.com/article/Judge-Dread/225624.

 

"It is true that the solution suggested is unusual, but unusual situations which pervert the judicial system require unusual and unorthodox remedies." -Eminent jurist H.M.Seervai in his book, Constitutional Law of India

 

This was the very quote that Binod Kumar Roy, Chief Justice of the Punjab and Haryana High Court, used to justify his five-page administrative directive restricting relatives of certain  judges from appearing before them. The Bar Council rule is clear that lawyers can't appear before their own kin. Roy's directive identified a dozen judges whose relatives are advocates (see All in the Family) and forbade them from appearing before any of these 12. This ensured that a judge cannot help even a fellow judge's kin.

 

Within a month of this directive, the SC collegium recommended his transfer to the Patna High Court.

 

It is ironic that the axe is falling not on the transgressor but on the one who cracked the whip against transgression," states a memorandum signed by 1,001 lawyers of the high court. It was sent to the President this week, urging him to send the file regarding Justice Roy's transfer back to the collegium for reconsideration.

 

The first time differences between him and the judges came out into the open was last December when 19 judges refused in writing to do administrative work, including inspection of subordinate courts in the districts allotted to them.

 

When Justice Roy issued notices to the two judges, it united all the others against him and led to an unprecedented strike on April 19 this year.

 

Given the developments in communication technology and the prevalence of the Global Village concept, one can very well imagine the (ir)relevance of geographical boundaries, even in the context of the court complexes.

 

Does anyone recollect the scam involving the relations of the then CJI K G Balakrishnan?

 

As per a report at http://www.business-standard.com/article/news-ians/sc-moved-for-balakrishnan-s-removal-as-nhrc-chief-113080201258_1.html (‘SC moved for Balakrishnan's removal as NHRC chief’, August 2, 2013) NGO Common Cause has sought direction to the government that it should make a reference to the apex court under Section 5(2) of the Protection of Human Rights Act for holding an inquiry against Justice Balakrishnan for his alleged acts of misbehaviour during his tenure as CJI.

 

The NGO, in its PIL, alleged that during the tenure of Justice Balakrishnan, his close relatives including his daughters and sons-in-laws acquired assets disproportionate to their known sources of income.

 

A later report, at https://economictimes.indiatimes.com/news/politics-and-nation/former-cji-k-g-balakrishnans-relatives-hid-crores-of-income-reveals-i-t-probe/articleshow/57162253.cms (‘Former CJI K G Balakrishnan’s relatives hid crores of income, reveals I-T probe’, Feb 15, 2017) states: Bhushan, appearing for NGO Common Cause, said 21 properties were bought by Balakrishnan's relatives whose source of income was limited. He also produced sales deeds of the properties.

 

Although the Centre contended that the I-T department had given a clean chit to Balakrishnan and his family members for allegedly amassing disproportionate and benami assets, it admitted that some of the properties were undervalued by them but they had now paid taxes as per market value.

 

The Centre's contention was opposed by advocate Prashant Bhushan who told a bench headed by Justice Dipak Misra that the "shocking revelations" must be probed by an independent agency. AG Mukul Rohatgi had earlier told the SC that the I-T wing had conducted a probe but it failed to find any evidence of DAs against them.

 

Income as per ROI of his son-in-law P V Sreenijan in 2009-10 was Rs 26.61 lakh but the assessed income was found to be around Rs 1.64 crore. Similarly, his income was shown as Rs 47.47 lakh in 2010-11, but was assessed at Rs 2.11 crore. He had to pay Rs 1.02 crore as tax and interest.

 

In case of his other son-in-law M J Benny, the report says his income as per ROI was Rs 28.94 lakh in 2010-11, but assessed income was Rs 1.79 crore and he had paid Rs 97.73 lakh as interest and tax.

 

The report says income of his daughter K B Sony was Rs 38.69 lakh as per ROI but was assessed at Rs 1.67 crore and she had paid Rs 38.74 lakh as interest and tax in 2010-11.

 

Why this case became relevant here is due to the fact that even if the figures of RoI and assessment are studied cursorily, it would show how relevant was Prashant Bhushan’s demand of a probe by an independent agency.

 

Veteran journalist Kajal Basu, writing on ‘The cost of criminalising criticism’ (

https://www.newindianexpress.com/opinions/2022/aug/10/the-cost-of-criminalising-criticism-2485883.html) concludes by stating Until trust is re-established through transparently dependable judgements, there is no point in shutting out or even criminalising criticism (personal-political though it may be)—criticism that, as in the best democracies, can only aid in the improvement of judgements and judges alike.

 

For decades now, in the US, for instance, the extrajudicial preferences of judges have been openly debated. Their judgements are almost invariably put through the media mill, and what contributed to the judgements lit up in neon.

 

In the UK, judicial accountability is a media free for-all—admittedly, mostly, but not solely, in the contumacious tabloids—unfettered by protestations, such as in India, from judges (because it is sweepingly accepted that there exists substantial political interference at the trials stage).

 

In Tamil Nadu a You Tuber, Savukku Shankar, is facing trial for contempt of court and he has maintained that he stood by his statement that the entire judiciary is riddled with corruption. (https://www.livelaw.in/news-updates/madras-high-court-youtuber-savukku-shankar-stands-by-his-statement-in-court-contempt-case-208080) A reader commented: Savukku is right judiciary is highly corrupt but I would like to remind him that politicians, bureaucracy, business, media are equally or more corrupt than the judiciary. My only question is: How can politicians, bureaucracy, business, media be more corrupt when they can all be hauled up before the judiciary? And you can't haul up judges before anybody!

 

P M Ravindran/ raviforjustice@gmail.com                                                          04 Nov 2022

 

JUDICIAL PERFIDIES-22

 

Let me begin this critique by quoting from a report of 23 Sep, 2022 - ‘Kerala High Court initiates suo motu case against PFI bandh in Kerala’ (https://www.mid-day.com/news/india-news/article/kerala-high-court-initiates-suo-motu-case-against-pfi-bandh-in-kerala-23247140 :

Kerala High Court on Friday initiated a suo motu case against Popular Front of India (PFI) leaders who called for a strike in the state against the arrest of its members by the National Investigation Agency.

Notably, as per a Kerala HC order on January 7, 2019, nobody can call for a bandh in the state without prior notice of seven days.

According to the police, stone-pelting incidents were reported at various places in the state.

Two police officers were attacked earlier today by the hartal supporters at Pallimukku in the Kollam district.

The first issue that comes to mind is the preposterousness of somebody deciding that a bandh can be enforced on the public at large with 7 days notice. Where is the rationale, forget about sense of justice, in someone bloodying your nose with 7 days notice? Isn’t it the most fundamental principle of jurisprudence that your liberty ends where my nose begins? The right to protest is certainly a safety valve for aggrieved persons and almost a fundamental right in a democracy. But how can that extend to violating somebody else’s equally fundamental right not to protest?

I have mentioned in an earlier part of this series how the same court had declared bandhs illegal long back and the apex court had upheld that decision. Thereafter, the same means of protest has continued to be perpetrated by calling it hartal.

My effort to get copies of the two court orders, to find out if it was the term bandh that was held illegal or the activities that went with it, was also thwarted by the Public Information Officer of the High Court who denied it claiming that it was part of judicial proceedings and it was exempted from disclosure as per the High Court Rules on the RTI Act. 

Even the extract of the report above, exposes the confusion prevailing about the brazen violation of the fundamental right of the majority of citizens that follows a call for hartal, aka bandhs. That it disrupts normal lives and causes untold misery to the general public goes without saying. What about destruction of property, public as well as private? And when police personnel are injured in the violence unleashed by the mobs, the plight of helpless individuals can well be imagined.

There was another report that the Kerala State Road Transport Corporation has filed for damages to their buses to the tune of Rs 5 crores. But the poor police personnel? Will they be able to seek compensation too? Or is it just a part of their job description?

That brings me to another preposterous decision by the apex court- of registering FIRs in cases of civilian deaths in counter insurgency areas.

Jay Bhattacharjee, working in the areas of Corporate Law and Finance, has written about this in his widely read book, Resurgent Bharat and Other Issues- An anthology of Essays.  In the essay ‘Our armed forces severely handicapped when fighting terror’, on the decision of the apex court in criminal writ petition 129/2012, he has written that the SC virtually made our armed forces run a one legged race and compelled our military to fight the enemy with one hand tied behind its back.

Let me take a detour here to place some relevant facts on record.

This is what K R Naryanan, former President, had written, long before he occupied that highest office of the nation, in an article Fragile Chimera, published in the Illustrated Weekly of India (6-12/09/1987):

A historian once remarked- few men are so disinterested as to prefer to live in discomfort under a government that they hold to be right rather than in comfort under one which they hold to be wrong. In politics and administration it is not enough to be right. It is imperative that the goods are delivered to the people, there is law and order and a general sense of comfort and above all a common sense of unity in the country and society.

We all know that the majority of the people want to live a comfortable, peaceful and happy life. Taking to violent means of protest is the last step that any ordinary human being would think of. But to reach that level he must have face gross disappointments with all the means available for redressal of his grievances, the ultimate being the judiciary. So, insurgencies are a sign of the total failure of the government as a whole but specifically of the judiciary, ultimately.  It is at this stage that the government depends on its sword arm for succor.

The military, obviously, lives on the ethos: do or die.  They are fed on the diet that there are no runners up in war. Though politically it may not be correct to refer to counter-insurgency operations as war, the fact is it is worse than war for the soldiers. In war, at least there is a known enemy.  In counter insurgency operations the enemy is not distinctly identified. There have been many cases reported of soldiers who, while leaving buildings/ areas after cordon and search operations, have been shot in their back by women whom they had refused to identify as insurgents or collaborators of insurgents.

There is no denying that there are bound to be mistakes when troops operate in insurgency affected areas, with their own lives on the line. And that is why the Armed Force Special Powers Act is invoked when army is launched in such operations. This, and only this, is the armour that protects from witch hunting later. And it is this armour that was rendered useless by the apex court bench of Madan Lokur and U U Lalit in Jul 2016.

As far as mistakes are concerned, given the army’s obsession with its image, more often than not, even minor mistakes are taken seriously and those involved punished in exemplary manner. Case in point: the Sukhna land scam.  A Lt General, then Military Secretary, was dismissed from service for showing undue interest in transferring land near a military establishment to a private party to establish an educational institution.

Again, just for the records, the babus, playing around with files, have a law that is invoked quite often and without much ado- obstructing a public servant in the discharge of his functions.

Section 186 of the Indian Penal Code reads as: Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

And we have the preposterous, undemocratic Contempt of Court Act, at the disposal of our judges, who have opposing parties presenting some facts, some laws and some case laws leaving the judge with all the freedom to decide in favour of any one of them, again without much ado.

This brings me to the report ‘Retired CJIs, SC judges to get lifetime domestic help, chauffeur’ at https://www.freepressjournal.in/india/retired-cjis-sc-judges-to-get-lifetime-domestic-help-chauffeur. As per this report:

Ø  A Chief Justice of India will now get a domestic help, a chauffeur, and a secretarial assistant for lifetime from the day he or she demits office.

Ø  A retired CJI will also be entitled to a security cover round-the-clock at their residence along with a 24X7 personal security guard for five years from the date of retirement.

Ø  If a retired CJI or a retired judge of the top court is already provided a 'higher grade' security on the basis of threat perception, 'the higher grade security already provided shall continue'

Ø  The benefits of the amended rules will now be extended to all living former CJIs and retired Supreme Court judges.

Ø  "The post-retirement benefits under this rule shall be admissible to the retired Chief Justice (of India) or the retired Judge (of SC) if no such facilities are availed from any High Court or from any other government body where the retired Chief Justice or a retired Judge has taken up any assignment after retirement,"

Just look at the wanton abuse of authority or can it be dismissed as mere placating? Though in this case it cannot be directly blamed on the judges, there was a report, dated 07 August 2021 titled ‘Chief Justice of India N V Ramana seeks special force for protecting judges’ (https://economictimes.indiatimes.com/news/india/chief-justice-of-india-n-v-ramana-seeks-special-force-for-protecting-judges/articleshow/85119242.cms). But one should certainly acknowledge the glaring unfairness of soldiers deployed in counter insurgency areas being subjected to prosecution when those sitting in judgment in air conditioned rooms, are being provided security cover not only while in service but also after retirement.

Coming back to Jay Bhattacharjee, he has written: Without apologizing for mixing metaphors, this writer would say that the judges poured vinegar on raw wounds and threw the ball back to the Union Government’s court, saying that the latter should take steps to protect the legitimate concerns of soldiers and this was not the job of the court.

Meanwhile there has been an interesting development. The 2009 criminal contempt of case against Adv Prashant Bhushan has been dismissed. The case involved Prashant Bhushan alleging that 8 Chief Justices of India were corrupt, in an interview with Tehelka and which was published by Tehelka. The editor was also facing contempt charges. 12 years after initiation of proceeding by a three member bench, it was dismissed on 30 Aug 2022 by another three member judge. The reason as reported at https://www.livelaw.in/top-stories/supreme-court-closes-2009-contempt-case-against-prashant-bhushan-tarun-tejpal-207860 is : "In view of the explanation/apologies made by the contemnors, we don't deem it necessary to continue matter". Senior Advocate Kamini Jaiswal appearing for Bhushan submitted that he has given an explanation for his statement. Senior Advocate Kapil Sibal, appearing for Tarun Tejpal, the editor of Tehelka Magazine, submitted that he has apologized. As per the Hindu (https://www.thehindu.com/news/national/supreme-court-drops-contempt-case-against-prashant-bhushan-for-corruption-remarks-in-tehelka/article65828997.ece) it had brought to the fore several cardinal issues, including the right to criticise the judiciary in a public forum and whether a person who expressed an bonafide opinion about judicial corruption was obliged to prove it or whether it was enough to show that he bonafide had held that opinion.

Just for the records, the copy of the order could not be accessed at https://main.sci.gov.in/judgments.

 

P M Ravindran/ raviforjustice@gmail.com                                                             29 Sep 2022