Tuesday, January 19, 2021

Keeping Judge in box in his own court

An unreasonable strategy of AP Government

AP Government made allegation of bias on the face of a High Court judge just a day before his retirement. The Advocate General filed a petition asking Justice Rakesh Kumar to recuse. He has retired on last day of 2020. Making allegations of bias on the face of the judge and trying to prove and disprove, looks like examining the judge in box in his own court. Certainly, it is an afront to judicial majesty.

Remarks by the Bench

All the controversy appears to have arisen out of the remarks, observations, cross questions, raised by the Bench, which were very much discussed and publicised by biased media from different angles to suit their respective political bosses. It is also not proper to persecute those comments which might have been provoked by the language and action of the counsels of two parties. With addition of social media becoming platform for making all sorts of remarks without any responsibility, the entire atmosphere is totally vitiated. Everybody is trying to prove or disprove the sensational comments of the judges.

Whether Justice Rakesh Kumar made that controversial remark at all is the question before High Court because the AP Government was seeking recusal of a judge on this ground. The alleged observation is: “how could the Government auction the properties of the State, had Government become bankrupt to auction Government properties. We will declare there is break down of constitutional machinery in the State and hand over administration to the Central Government.”

A statement that the judge says he did not make

Justice Kumar did not agree with this allegation and 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.

Two advocates appearing for petitioners B Nalini Rao and Narra Srinivas Rao emphatically stated that in none of the newspapers, the observation was quoted as has been alleged. They have argued that the very act of the deponent of this petition, Mr P. Pravin Kumar who is a senior officer of the State of Andhra Pradesh is nothing but maligning the judiciary and undermining it and the same is contemptuous. Besides this, they have argued that the deponent of this petition has made an incorrect and false statement on oath and as such, he may be dealt with severely.

‘The portion that was never uttered’

Bench noted: “At the time of hearing, Sri B.Nalin Kumar, learned counsel for the petitioner submitted that the second portion of the so-called observation i.e., “We will declare there is break down of constitutional machinery in the State and hand over administration to the Central Government.” was not at all uttered by this Court (Rakesh Kumar, J). Same thing was reiterated by other counsel for the petitioners including Sri Narra Srinivasa Rao, learned counsel appearing in item No.14 i.e., W.P.(PIL) No.127 of 2020. Sri B.Nalin Kumar, learned counsel, has also taken the Court to enclosures filed along with the present petition to show that in none of the newspapers aforesaid observation was quoted. However, the deponent of the petition in paragraph No.8 of its affidavit has stated that the above said remarks of the Court were reported in the same verbatim in various newspapers and extract of such newspapers, dated 11.12.2020 have also been enclosed with the petition.”

Bench further recorded that “it is unfortunate that such a petition has been filed not by a private party, but on behalf of the State”. It is well known that primarily the function of the High Court while exercising jurisdiction under Article 226/227 of the Constitution of India is to protect and enforce fundamental right of a citizen if it is infringed or taken away by the State. This is the main protection lying in the hands of citizen against the unauthorized or illegal act of a State. If in a situation, the High Court proceed to hear a petition and during hearing, the Court wants to get any of the doubts occurring in the mind of the Court to be cleared, certainly, it is the right of the Court to ask certain questions. It is not untrue that one of the Members of this Bench (Hon’ble Sri Justice Rakesh Kumar) had questioned as to whether there was financial crunch or emergency that the State was intending to transfer the title of the State land by way of auction sale, that too, for generating fund”.

A state without land

Prima facie some doubt arose in the mind of the Court that whether an elected Government, which is elected for only five years, can have a right to transfer title of land of the State. If it is the property of the State, certainly every citizen of the State has got some interest in such property and being trustee, that too, for five years, the Government may not either sell or transfer title of the property. If it is not objected in that event there is possibility that a time may come when the State will be termed as a State without land.

‘astonishing’

“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 the 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”.

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. For the first time, an IAS officer will be facing prosecution for the perjury and contempt of court for making untruthful statements in his Affidavit (sworn statement) seeking recusal of AP High Court judge, from hearing the writ petition challenging the decision of outright sale of certain lands in Guntur and Visakhapatnam. The Officer has filed certain newspaper clips to support his allegation against the Judges, which did not reflect those remarks, the High Court noted in its recent order on 30th December 2020.

These are the relevant parts of clips submitted by AP Government which do not have alleged comments: (Extracted from the Affidavit of the Government)

It seems those who drafted Affidavit of IAS officer have attributed the controversial remarks not made in this context, to this case of outright land sale. Unless they proved that it was unintentional and mistaken drafting, the officer may have to face the prosecution for perjury and contempt of court.

Did the justice make the statement?

Now the question is whether Justice Rakesh Kumar made such comments at all.

The AP High Court bench comprising Rakesh Kumar and J. Uma Devi has reportedly made such comments while examining a bunch of 16 writ petitions for Habeas corpus on October 1, 2020, under the title Reddi Govinda Rao Vs State of Andhra Pradesh exposing police excesses. In that case, the HC directed that “on the next date, learned senior counsel appearing on behalf of the State may come prepared to assist the court as to whether in the circumstances, which are prevailing in the state of Andhra Pradesh, the court can record a finding that there is constitutional breakdown in the state or not”.  The HC while rejecting state’s petition to recall the order observed on December 14: “Since on number of occasions, the court had noticed illegal picking up of persons by police and after filing of the Habeas Corpus writ petitions either they were being remanded or released. Even in this petition (Reddi Govinda Rao), after noticing such atrocities, this Court, on 12.02.2020, had summoned the Director General of Police, Andhra Pradesh, who appeared on 14.2.2020. Assurance was given by the DGP for educating police officers to act in terms of guidelines issued by the Hon’ble Supreme Court in D.K.Basu v State of West Bengal (AIR 1997 SC 610) and also subsequent amendments in the CrPC.  The DGP had assured that he will take proper steps henceforth”. 

Bench expressed shock when petitioner’s counsel complained that the advocates of detenu were threatened. Bench also noted that HC judges were attacked on social media after passing these orders.

‘Judge never said they would handover administration to Centre’

After hearing several such petitions including those of habeas corpus, illegal detentions, unconstitutional actions, closure of Telugu medium cases, assaulting a doctor for demanding corona fighting equipment, human rights violations etc, Justice Kumar said that court might probe question of possible breakdown of constitutional machinery in the state. Immediately the counsels for state pointed out that court did not have such power. Then Judge asked them to argue on that point also. The counsel present during that hearing said that judge has never said that they would handover state administration to the Centre.

Embarrassing situation

The way media highlighted the observations of Justice Rakesh Kumar that the High Court would examine if there is any Constitutional breakdown in AP etc, created a sensation. The Government has escalated the matter to Supreme Court which felt it was ‘disturbing’.  The SC stayed further proceedings and posted it after new year holidays. These incidents have put the judiciary in a very embarrassing situation and rightly criticised as an assault on majesty of the constitutional institution. Aggressive allegations by the political executive headed by a person charged with several criminal cases, against judicial institution is unheard of in Indian Constitutional governance.

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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