Tuesday, January 19, 2021

AP Justice’s anguish on a major Constitutional conflict between Executive vs Judiciary

  • “Transfer of Judges may delay prosecution of CM”

A day before retirement, Justice Rakesh Kumar of Andhra Pradesh High Court came down heavily and raised very substantial Constitutional questions. The Livelaw.in reported that Justice Rakesh Kumar made a very serious observation that with the transfer of judges of AP and Telangana, “the monitoring of the prosecution in the criminal cases against AP Chief Minister Mr Y S Jagan Mohan Reddy will be delayed”. He expressed anguish concern for securing the majesty of Justice system in India. It appears the judge was pained at the way the judges were transferred leaving scope and provocation for people to make all sorts of speculation. The Judge faced another petition from the Advocate General on 30 December 2020 seeking his recusal on the allegation of bias against the State Government. He rejected it. But the petition appears to have made the Judge to make serious observations, such as follows:

“By the said transfer, naturally, the cases pending in the Court of Special Judge for CBI cases in Hyderabad against Sri Y.S.Jagan Mohan Reddy, present Chief Minister and others may be delayed and monitoring by the Hon’ble Supreme Court in W.P (Civil) No.699 of 2016 may hamper for the time being. Similarly, by the transfer of Chief Justice of AP High Court, the Government of Andhra Pradesh is bound to get undue benefit”, the judge remarked.

Issue of transparency in Collegium

Dynamic Judge of the Andhra Pradesh High Court raised another significant question of transparency in collegium decisions, especially in transfers and appointments. He was almost questioning the timing of transfer of Chief Justices of High Courts of Andhra Pradesh and Telangana.  On 30th December 2020, Justice Rakesh Kumar was thinking about the possible connection between the transfer and the critical letter of AP Chief Minister Jagan Mohan Reddy to the CJI complaining against one SC Judge and Judges of AP High Court and seeking ‘some transparency’. Saying that he was not raising any questions at the collegium proposals, Justice Kumar observed that transfer of High Court Judges or its Chief Justices “may reflect some transparency……After all, they are also holding Constitutional post like member of Hon’ble Supreme Court Collegium”. 

The ‘unceremonious” letter

Justice Rakesh Kumar termed CMs letter as the “unceremonious letter” to the CJI, and said that the Chief Minister has “succeeded in getting undue advantage at the present moment”. He also expressed concern that the “people may draw an inference as if after the so-called letter of Hon’ble Chief Minister, the two Chief Justices, i.e., Chief Justice of High Court for the State of Telangana and Chief Justice of High Court of AP have been transferred”.

Publicity to contemptuous letter

Justice Kumar stated in the order that transfer proposals were made ‘after publicizing of the contemptuous’ letter of the Chief Minister to the CJI. The judge observed that after the collegium made the transfer proposal, CJ Maheshwari stopped the hearing in the cases challenging the CM’s brain-child – “three capital” decision. He wrote further in the order: “After his (CJ Maheshwari) transfer, there is every likelihood that some time may be consumed in reconstitution of the Bench and thereafter from zero hearing in those cases may commence……I am not raising any question on the transfer of Hon’ble Chief Justices, either of the High Court of Andhra Pradesh or of the High Court for the State of Telangana, but, at the same time, I am constrained to observe that transfer of High Court Judges or its Chief Justices may reflect some transparency and for betterment or upliftment of the administration of justice. After all, they are also holding Constitutional post like member of Hon’ble Supreme Court Collegium”.

Also Read : SC stays AP HC order describing it ‘disturbing’

Justice denies the “Breakdown” comment

AP Government has again asked for recusal of Justice Rakesh Kumar alleging bias. While rejecting this plea and argument of Advocate General seeking his recusal from a division bench, he made these observations.

The state made this allegation in its application that Justice Kumar made a comment during a previous hearing that “We will declare there is break down of constitutional machinery in the State and hand over administration to the Central Government”. The AG annexed certain news clips of printed newspapers to prove that the judge had made such oral remarks.

Justice Kumar did not agree with this allegation. He said denied making any such remark and explained that he was merely expressing doubts about the legality of the move of the government to auction public land for private bidders. He has also rejected the allegations of bias and came down heavily again on the government asking for his recusal.

“Disturbing’ – CJI

On the plea of AP Government challenging the observations “if there was a ‘breakdown of constitutional machinery’ in the State of AP etc, and Supreme Court has stayed the proceedings before High Court. The CJI, while issuing the stay order, observed that this kind of HC proceedings were ‘disturbing’.

Apprehensions

The sequence of certain orders of AP High Court going against the Government, sensational letter of CM to CJI, followed by the Supreme Court collegium’s recommendation of transfers of Justices Raghvendra Singh Chouhan and JK Maheswari, the Chief Justices of Telangana and AP High Courts respectively, on December 14, 2020 raised several speculations.

On the request for consent to prosecute CM for ‘contemptuous’ letter, the Attorney General of India rejected on the ground that CJI was seized of the matter, though indirectly agreed that letter could be ‘contemptuous”.

Scathing remarks on Khaidi Number 6093

Justice Rakesh Kumar in several cases made certain scathing observations against the Chief Minister. One interesting comment is that mentioned in the order that he got “disturbing information” about the Chief Minster after searching “”Khaidi No.6093” in Google. Then the judge went on to extract the screenshots of newspaper reports about the corruption allegations against Jagan Mohan Reddy, which were returned after a Google search of “Khaidi No 6093. Till the publication of letter, dated 06.10.2020, of the Hon’ble Chief Minister of Andhra Pradesh, I was not having much information about him. But, immediately thereafter, I became curious to know about him. Subsequently, I was told that if I go on site ‘Google’ and type only “Khaidi No.6093″, I can get many information. Accordingly, I did the same thing and thereafter I got very disturbing information. Some of such extracts I got downloaded are quoted herein below…. In this order, the 30 criminal cases pending against Jagan Reddy were enumerated. But the police have closed many cases citing lack of evidence. It reflected how head of the Police, i.e., the Director General of Police, Government of Andhra Pradesh, is functioning as per the dictate of the Government, not in upholding rule of law in the State. Is it not a mockery with the system?”.

Also Read : TS CJ is Justice Hima Kohli, For AP it is Justice Goswamy

On the verge of his retirement

“I am well aware that many of my observations made herein above may not be in consonance with the technicality, but since on the verge of my retirement, my impartiality has been questioned by the Government of Andhra Pradesh on my face in the present proceeding, in my defence, I was constrained to record above facts, which are based on record and may not be disputed. My only endeavour is to uphold the majesty of law”, the judge added.

Judges should decline post retirement assignments

Justice Rakesh Kumar remarked against the acceptance of post-retirement assignments by judges: “I am of the opinion that for a situation, which is prevailing, today in which impartiality, integrity, honesty, unbiased etc., in judicial system is being raised, to some extent we are also responsible. Several instances we have noticed that immediately after demitting the office of Judge, the Judges are provided with new assignment. If we start to restrict our expectation of reassignment/re-employment at least for a period of one year after retirement, I don’t think that any political party, even party in power can undermine the independence of judiciary and we may be in a position to uphold the majesty of law without being influenced by anyone”.

Recusal application rejected; contempt initiated

While rejecting the recusal application, he termed it as an attempt to “malign the image of one of the members of the bench”. “If Court starts entertaining such petitions; in no case, the Court can be allowed to dispense justice. With a view to uphold the majesty of law and repose the confidence of citizen in the judicial system, such endeavour made by the State is considered as malicious and cannot be approved. If such petitions are entertained, it will amount to allowing the party for hunting the Bench. Such an action by the State was not expected, but in this State, as I have observed the circumstances herein above, everything can be possible. However, at the same time, the Court cannot be frightened by any such action of the State”.

Perjury

This application was filed on the basis of an affidavit on oath made by Mr. Pravin Kumar, Special Officer, Mission of A.P, I.T Towers, Mangalagiri, Guntur District/Mission Director, Mission Build Andhra Pradesh, Government of Andhra Pradesh.  These allegations in the affidavit were discarded as “untrue” and “false” amounting to “perjury”. The bench has ordered the initiation of criminal proceedings for perjury against the officer and issued show-cause notice for contempt action against him.

Describing the recusal application as ‘astonishing’, the judge remarked:

“For a while I was astonished with such behaviour of State but immediately thereafter, I perceived that bureaucrats of this State have been emboldened after apparent success of the Hon’ble Chief Minister of the State of Andhra Pradesh in addressing a letter to the Hon’ble Chief Justice of India and making it public, making allegation against one of the senior Judges of Hon’ble Supreme Court, the Hon’ble Chief Justice of A.P High Court and number of sitting Judges of A.P High Court with their name”.

The livlaw.in also reported the Justice Rakesh Kumar’s sensational remarks in Patna High Court wherefrom he was transferred to Andhra Pradesh a year ago. Shortly before his transfer to AP High Court, Justice Rakesh Kumar had created a furore in the Patna High Court by passing a direction for CBI investigation into alleged corruption in the subordinate judiciary. In that order, Justice Rakesh Kumar reportedly said: “corruption in this High Court is an open secret” and that “judges were more interested in enjoying privileges than administering justice”. Soon after that order, a 11-judge bench assembled to suspend it after observing that Justice Kumar’s observations as “judicial and administrative overreach”.

63-page text of the order can be accessed at: https://www.livelaw.in/top-stories/andhra-pradesh-high-court-judge-scathing-remarks-cm-jagan-reddy-rakesh-kumar-167780?from-login=229162

Prof. M. Sridhar Acharyulu
Prof. M. Sridhar Acharyulu
Author is former Central Information Commissioner and Professor of Law at Bennett University

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