Justice AP Shah: Judges and ‘justice’ worry the nation

These are edited excerpts from the address delivered on May 1, 2018, by Justice AP Shah, former Delhi High Court Chief Justice and former Chairman of Law Commission of India at the book launch of ‘Anita Gets Bail’ by Arun Shourie

Our judiciary is going through what I would describe as an extremely volatile phase, and one that I haven’t seen in some years myself. Most of us are only too aware of what is happening, and some of us talk about some of these things in hushed whispers or, occasionally, in loud voices. But Mr Shourie has done what most of us have not. He has put pen to paper, and in his own distinctive style, and with remarkable flair, “called out” the judiciary and those who staff the system.

There is no doubt that there are serious problems. A low judge-to-population ratio, a generally inadequate number of judges, poor infrastructure, and an executive not entirely supportive of the judiciary… But even when the judicial system is dedicated to solving a problem, glitches appear.

For example, in at least two instances, in the cases involving the Bhopal gas tragedy, and the Bombay blasts, courts were set up to exclusively deal with these cases, and not do any other work. Both sets of cases took an abominable length of time – Bhopal took 15 years; Bombay took about 10.

A HEARTLESS SYSTEM

This book nails into our heads the truth that the judicial system has become heartless. Mr Shourie makes a very perceptive observation about the judiciary, which I wholly agree with.That is, that even if each judge as an individual is as compassionate and considerate and human as the rest of us, it is also true that the system as a whole has evolved into something completely soulless and cold-spirited. While on the one hand, you have the courts subjecting regular people to the distressing mores of criminal procedure, on the other hand, the rich and powerful have taken the judicial system for a ride.

GAMING THE JUDICIARY

This is not a new story by any means, and we have heard it ever so often that I worry that we have lost all scope for introspection critical thinking, and the truth no longer troubles us. Mr Shourie’s version, in its detailing and thorough analysis, and of course, unmatched journalistic style, tells us of how Jayalalitha and her coterie trampled through the justice system, and made a mockery of judges, prosecution and governments alike.

The case was a classic example of complete misrepresentation and distortion of facts. When the matter involving Jayalalitha’s disproportionate assets came to the High Court, the judge used an arithmetic peculiarly his own to inflate the legitimate income of the politician and her associates, and deflate her expenses, so that the effective surplus they were left with were legitimately sufficient to justify the assets they had acquired.

As we all know, the case went on for 20 years. And this is not an unusual story, by any means. Indeed, Mr Acharya, the Special Prosecutor in this case, has recorded in his memoir, which is quoted in this book, “My appearance in the … case has taught me such variety of novel grounds on which adjournments could be successfully sought that I could write a book on the subject ‘Law of Adjournments’. However, I desist from doing so, as I do not want any accused intending to prolong trials to take advantage of it”.

Mr Shourie also says that an institution that operates through instilling fear in the people cannot survive. An incessant use of the contempt of courts law will not do the system any good. It will only undermine the power that the system actually has. The courts, like any other institution, need to build and protect their reputation, and instil respect amongst the people.

PROTECTING THEIR OWN

When it comes to their own, the judiciary is particularly protective. The truth is that each time a single judge is accused of misconduct or misdemeanour, it is a blot on the judiciary. Take the case involving say, Justice Nirmal Yadav, the sister of a powerful politician.

Her alleged demand for a bribe to issue a favourable judgement came to light only fortuitously and by chance, when someone referred to her as ‘Nirmalji’, leading to someone else mishearing the name as Nirmaljit, and depositing the money at the doorstep of Justice Nirmaljit Kaur instead.

Surely, even the apparent demand for a bribe, or the presumption that judges could be bought for a fee, is enough to make the system’s reputation collapse. Two former attorney generals, along with then the Law Secretary, almost successfully managed to have the case hushed up. It was only because a courageous magistrate refused to entertain the closure report filed in the matter, that the case proceeded. It helped that the President also granted sanction to proceed with prosecution.

After all this transpired, the judge in question did not have her work taken away. Instead she was merely transferred to another court, where she continued to adjudicate. How could you allow a person, who has been accused of so appalling a crime, to continue to perform the critical function of dispensation of justice? What is disturbing still is that nearly a decade has passed, but the case is still pending…

The judiciary does not help its own case when it rejects requests for information on assets owned by judges, or when it stays the order of the Delhi High Court on the applicability of the RTI Act to the office of the Chief Justice, and has not passed a final decision on the matter for as long as ten years. We need to keep asking tough questions, and we need to keep demanding honest answers.

Take the case of the former Arunachal Pradesh Chief Minister, Kalikho Pul and his suicide note. Pul had, among other things, made certain allegations about politicians, bureaucrats and high officials including the then sitting Chief Justice of India and another Supreme Court judge. Ordinarily, his note alleging that money allocated to the north eastern states was siphoned off, ought to have been treated as a dying declaration, and investigated accordingly.

When no investigation was made into the allegations of Pul’s suicide note, his wife wrote to the then sitting Chief Justice, by way of an application on the administrative side, seeking permission to file an FIR against the judges mentioned in the note. This was necessary in view of Supreme Court judgement in Veeraswami’s case.

Instead of treating it as an application on the administrative side, the Chief Justice listed it as a writ petition before a bench comprising judges relatively lower in order of seniority. Ultimately, the lady withdrew her petition before any decision could be made.

PRASAD EDUCATION TRUST

There is also the case involving multiple medical institutions, in connection with a criminal complaint filed by CBI which alleged as follows: that a conspiracy was hatched by certain persons, including a former Odisha High Court judge and a hawala dealer, to allegedly bribe Allahabad High Court and Supreme Court judges who were hearing the case. Chief Justice Misra was leading the Bench which had heard and decided the case of Prasad Education Trust.

The petitioners and CJAR and others asked that a Special Investigation Team be constituted. Justice Chelameswar, heading a two-judge bench, directed that it should be decided by a bench of five senior-most judges. The Chief Justice, in response, declared himself to be the “master of the roster”, holding that there could be no “kind of command directing the CJI to constitute a Bench”.

The fact that the CJI should insist on issuing such a declaration despite having been on the Bench deciding the original matter, prompts one to ask, as Mr Shourie does, quoting Faiz Ahmed Faiz, “Bane hain ahale-hawas muddai bhi munsif bhi Kise vakeel karein kisse munsifi chaahen?”

As a matter of fact, the CBI seized cash of 2 crore purportedly given as bribe. They had tapped telephone conversations in connection with the case, transcripts of which are in public domain. What is strange is that, just the other day, the CBI court has directed the media not to discuss this, despite everything being in the public domain. The petitions in question were assigned to other benches, and both were subsequently dismissed. When a party like CJAR raises these questions and prays for the constitution of an SIT, the Supreme Court decides to shoot the messenger, and fines the organisation an unreasonable sum of Rs 25 lakh, for pursuing what the court termed frivolous and contemptuous litigation.

THE JUDGE LOYA CASE

The Judge Loya case, which Mr Shourie discusses in great detail, is another where an inquiry was evidently needed, but was openly avoided. We all know the facts. A powerful politician was involved.

The Supreme Court expressly announced that the judge in the trial ought not to be changed at any cost, but the day before the politician was to appear before the court, the judge in question was mysteriously transferred, in the face of the Supreme Court order.

Another judge – judge Loya – was appointed thereafter. Video testimony of his father and sister suggest that the judge was offered big money, plots and property. It was not a small case he was handling. The record itself ran into 10000 pages. He demanded reasons as to why the politician did not appear before the court, and kept the matter for 15 December of that year, but died suddenly on 30 November. The next judge comes on the scene, and before you can blink an eyelid, by 30 December, the matter is over.

Here, a case involving a voluminous record of 10000 is concluded in record time. The CBI decides not to appeal. Harsh Mander as a private citizen tries to file an appeal, but the Supreme Court sends him away on grounds of lacking locus standi.

Mr Shourie has detailed the suspicious circumstances of Judge Loya’s death, and has said that this should have been a matter of an inquiry.

The judgement –in my opinion – is utterly wrong, and jurisprudentially, incorrect on so very many counts. The 3-judge bench of the Supreme Court, dismissed the petitions, rejected the request for an enquiry, and held that “in so far as the circumstances relating to the death of Judge Loya are concerned, all issues raised in that connection in the present case shall stand governed by the judgment delivered by this Court.

motivations of petitioners who bring forward Public Interest Litigations, particularly politically-motivated PILs. This is not the first time the court has dealt with this. But has the court properly analysed the use of the PIL in this particular case? Who, truly, has misused the PIL here? Mr Shourie points out that it was the Bombay Lawyers Association which filed a PIL in the Bombay High Court. They asked for an independent inquiry into Judge Loya’s death. Then, a new petition surfaces in the Supreme Court, which is allocated to Justice Arun Mishra’s bench, which triggered the 4 judges press meet. That petition would have been ordinarily heard by the Bombay High Court. This was engineered to see that the Bombay High Court was excluded and that the Supreme Court instead take up the matter.

In the book, Mr Shourie tells us that the lawyer appearing for the petitioners in Supreme Court had appeared for the politician in question in the past. If at all anything is evident from the facts and circumstances of the case, it is that the petition that came to the Supreme Court was a motivated petition, and unfortunately, the Supreme Court could not see through this, and the judgement is delivered without a word of mention about this aspect.

Another thing which is remarkable about this case is that the court called it a “veiled attempt to launch a frontal attack” on the judiciary. But how did they come to this conclusion – all that the Bombay High Court petitioners asked for was that the death of a judge should be inquired into. How does this become an attack on the judiciary?

The petitioners highlighted several suspicious circumstances surrounding the judge’s death. Mr Shourie quotes some of them. In the course of the case, the Maharashtra government appears to have conducted a discreet inquiry, and recorded the statement of four judges who accompanied Judge Loya to Nagpur. This discreet inquiry is not a testimony on oath. In fact, there is no evidence on record. And worse still, there is no opportunity for cross examination, and no opportunity for the public to read the report of this discreet inquiry.

What in fact transpired is that the Supreme Court acted as a Court of Appeal, and granted a sort of an acquittal, without the benefit of the judgement of a trial court. As the constitutional scholar Gautam Bhatia describes it, “it reads like a trial court judgment that has been delivered without a trial

JUDGES AS SUPERIOR BEINGS

More problematically, the Supreme Court has evolved a whole new jurisprudence regarding the statement of a judge. It says that the statements of judicial officers should be accepted on the face of it, as their statements have a “ring of truth” about them.

Note that these statements made by the four judges who accompanied Judge Loya to Nagpur were not made in their capacity as judges, but about their personal knowledge of what happened in Nagpur. Nobody has seen their statements. However, the ring of truth still exists, and therefore the court has decided that these statements should be accepted. It is as if judges are to be treated as super human, as beings who are not capable of telling untruths.

It gets more uncomfortable when the court dismisses the fact that the judges cannot be cross examined, because their testimonies are not on oath, as being “mere technicalities”. The cross examination is regarded in criminal law, and in international convention, as the most powerful weapon to get at the truth. And our Supreme Court calls it a mere technicality? We should be very, very worried.

Compare this with what court said regarding the video testimonies of father and sister. It said that these were mere hearsay and ought to be disregarded. In the same case, the Supreme Court chooses to completely disregard the Evidence Act, when it comes to the testimony of judges, but chooses to invoke it for the video testimony of the deceased judge’s family.

This is an entirely new principle that has been evolved that a testimony is said to be accepted, not because the person is telling a truth, but because that person is of a certain status, in this case a judge, and by virtue of being of such status, that person is incapable of telling an untruth.

After reading the judgement, it seems, as another young scholar, Alok Prasanna Kumar says, that the court was not interested in finding out the truth.