Dire need to protect majesty of justice

An affidavit full of contradictions, a strategy to humiliate a retiring judge, transfer of Chief Justices of Andhra Pradesh and Telangana, with shamelessly parti(y)-san division of media, show the dire need to protect the majesty of judicial system. The tendency of using the Constitutional courts for political reasons and threatening the Justices if favourable orders are not given, is increasing. This is more serious variant of virus than the Covid or its UK version.

A day before retirement, Justice Rakesh Kumar of Andhra Pradesh High Court came down heavily and raised substantial Constitutional questions. He commented 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 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 YS 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

The 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 publicising 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".

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, 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".

"I am well aware that many of my observations made herein (about Khaidi Number so and so) 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 explained after including google search extracts in the judgment. This kind of extraction of information from public domain, was criticised as an overreach.

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…."

The bench said that the basis of this recusal request was an affidavit on oath made by Mr. Pravin Kumar, Special Officer, Mission of A.P, I.T Towers, and discarded the allegations in the affidavit as "untrue" and "false" which amount to "perjury". The bench ordered the initiation of criminal proceedings for perjury and contempt of court. He observed: "… 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".

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".

(The writer is Professor of Law, Bennett University and former Central Information Commissioner)