If Judges were paid back in their own coin...? I
by Radha Rajan on 28 Jan 2012 7 Comments

Anti-Police Bias: The heavens would fall in judicial wrath for contempt of court! The right to make insulting observations, the right to be offensively rude, and the right to denigrate individuals and institutions, statutory authorities, and constitutional bodies in open court, with sweeping generalisations and unfounded assumptions of moral turpitude, is the sole prerogative of judges.

The writer is not even going into fanciful and insulting notions of history of this nation and its civilisational ethos which Justice Markandey Katju has expressed in open court with the sanctioned impunity which comes with his profession. It bears mention that Justice Katju on more than one occasion has cited his capricious and even irrational opinions as the basis for some of his judgments. While these judgments are not the subject of the column, his un-Hindu, anti-Hindu worldview and his frequent outbursts in court however are germane to the article.

The Gujarat High Court on December 1, 2011, directed the Central Bureau of Investigation to take over the investigation into the Ishrat Jahan ‘fake’ encounter case. As is often the case, the judicial directive was accompanied by a generous dose of gratuitous insults.

Stating that the Gujarat police could not be “relied upon” to conduct an impartial probe, the High Court asked the CBI to consider the case as an “exceptional one having national ramifications”.

Rejecting the state government’s plea to allow the police to investigate the case, the Bench (a Division Bench comprising Justices Jayant Patel and Abhilasha Kumari) said such an inquiry would not only be not “reliable”, but also fail to instill confidence among the victims and the public in general because of the involvement of a number of senior police officers in the fake encounter

Besides, “all top officials of the state up to the rank of the then DGP may fall within the ambit of the investigation in connection with the registration of another/fresh FIR,” and therefore investigation by the state police would not be desirable. The Bench also recorded the possibility of the police tampering with evidence to protect its officers. (The Hindu, Friday, December 2, 2011, page 14)

Sum and substance of the court directive -

--- The CBI should take over from the Gujarat police because the Gujarat Police is unreliable

--- By implication, the CBI is reliable

--- The Gujarat police cannot be trusted to carry out investigations because senior police officials are involved

--- The judges have already concluded that senior police officials are involved in the ‘fake’ encounter on the basis of the SIT report

--- If the judges have accepted the SIT report that the encounter was fake, then why ask the CBI for more investigations and to what end purpose, unless by insidious implication, the court wanted the CBI to find Gujarat’s top police officials guilty

--- Even before the CBI has started its investigations into the Ishrat Jahan encounter case, the Division Bench stated in open court that senior police officials up to the level of the then DGP are involved

--- Stating that senior police officials could be involved is tantamount to indicting them without trial when the words are spoken by judges hearing the case

--- Having pronounced senior officials to be guilty, should it be construed that the statement is equal to a verdict of guilt or should it be perceived as loose observations by the two judges amounting to anti-police bias and judicial hubris

--- Was the Division Bench of the Gujarat High Court imputing motives to the Gujarat Police when it stated that the police cannot be relied upon to investigate with fairness and integrity other police officers?

--- If, according to the judiciary, the Gujarat Police cannot be trusted to carry out fair investigations against the police department, would it be just as fair to say that the judiciary cannot be trusted to hear cases involving their fraternity - lawyers and judges?

Of course every judge in the country – from judges in the Munsif Court, from Assistant District Judge, Additional District Judge and District Magistrate upwards, like Justices Abhilasha Kumari and Jayant Patel of the Gujarat High Court thinks every case before them is “exceptional one having national ramifications”; this enormous sense of self-importance is an integral part of their contrived eminence.

However, in the best interests of democracy, the ordinary citizen from whom democracy derives its legitimacy and power, must now begin to take a good hard look at not only what is said in our courts, but also at the conduct of our judges when they are holding office.

Justices Abhilasha Kumari and Jayant Patel rejected the plea of the Gujarat government to allow the police to investigate the case on two grounds – that senior police officials up to the rank of DGP may have to be brought within the ambit of the investigation and “also fail to instill confidence among the victims and the public in general because of the involvement of a number of senior police officers in the fake encounter”.

If, as the judges are claiming, the involvement (not possible involvement but certain involvement) of senior police officials has failed to instill confidence among the victims (read Muslims) and the general public, then the writer must respectfully point out to the judges that when they state that the law which is applicable to the ordinary citizen must be made applicable to the police, then the ‘ordinary citizen’ rule and the indices by which the judiciary judges the police force must be equally applicable to judges too.

The series of mind-numbing scandals involving the judiciary, to quote the very words which the judges of the Gujarat High Court hurled at the police, “also fails to instill confidence among the victims and the public in general because of the involvement of a number of” senior and high-ranking judges in these scandals –

--- One former Chief Justice of India and his close family members

--- One Chief Justice of the Karnataka High Court, elevated to the Supreme Court who resigned after threat of impeachment

--- One former judge holding the post of Karnataka Lokayukta
--- Justice Ashok Kumar of Tamil Nadu and later Andhra Pradesh

--- Justice C.S. Karnan also from Tamil Nadu

But the country is yet to see even one judge placed behind bars; and this is only the needle-point tip of the scandal-iceberg tainting the judiciary. There are also accusing whispers of conduct unbecoming of judges, rampant nepotism, portfolio management/manipulation and raw bribe-taking doing the rounds in several courts across the country. Portfolio management/manipulation is the country’s worst kept secret – the ability of some advocates and litigants to get a judge of their choice to hear their case and thereafter get the judgment of their choice.





The Madras High Court, not to be outdone in the annual All India High Court Police-bashing Competition, also jumped into the fray.

The first bench of Chief Justice MY Eqbal and Justice TS Sivagnanam was hearing a PIL filed by advocate P Pugalenthi seeking CBI probe into the alleged rape of Irula women by the personnel attached to the Thirukovilur police station.

The bench made it clear that it would be constrained to pass appropriate orders “if the investigation is not found to be satisfactory”. The bench said, “We fail to understand the submission made by the public prosecutor. If a lady goes to a police station complaining about sexual harassment or rape by a person, the police officer will not hesitate to arrest that person immediately. Why should a law which is applicable to the common man not be applicable to the police officers?


The observations made by the first bench merit unsparing scrutiny because the opinions and pronouncements which the judges made in court have far-reaching consequences and this is cause for worry.

These insulting observations were made in the course of the hearing on a PIL filed by some advocate in the Madras High Court asking for the case to be taken over by the CBI. Points to be noted from the observations made by the first bench -

--- Investigations are far from complete and still underway

--- The advocate’s PIL implied mistrust of the entire TN police because it asked for the CBI to take over the case

--- The Chief Justice of the Madras High Court when he made harsh observations against the police even before investigations were complete, did so without thought to the fact that he was not only encouraging a small-time lawyer to question the integrity of the entire police force, but that as judge he was undermining the dignity of the uniform

--- The chief justice for good measure compounded the insult with the threat that he would be “constrained to issue appropriate orders” “if the investigation is not found to be satisfactory”

--- Two questions beg themselves – what are “appropriate” orders and what constitutes “satisfactory” investigations?

--- Can an ordinary citizen be blamed if he thinks that the opinion “if the investigations are not found to be satisfactory” actually means that the judges, like lawyer Pugalendi, have a pre-determined course in mind, wherein the investigations must proceed along a certain path which will find the Thirukovilur police guilty?

--- The first bench of the Madras High Court has failed to apply its mind to make the distinction between charges of rape levelled against ordinary persons and charges of rape levelled against the armed forces and police force

--- While false charges of rape are reprehensible no matter who makes them, the Chief Justice of the Madras High Court should have borne in mind that charges of rape and assault against the police are sometimes motivated by previous animus or are politically motivated

--- When the clothes of the Irula women had already been sent to forensics to determine rape or otherwise, and the results were awaited, there was no cause for the judges to pre-determine the issue and imply that the investigations were not satisfactory

It is nobody’s case that rapists, especially so if they are policemen, should be placed beyond the reach of the law or that they do not merit punishment under the law; but because the growing industry in human rights targets our uniformed forces, it becomes imperative that judges do not bring the investigating process and the entire police force under a counter-productive cloud of suspicion and mistrust; more importantly, this places the police force at an undeserved disadvantage vis a vis the judiciary and demoralises the entire force.

The manner in which Justice Ibrahim Khalifullah of the Madras High Court and former Chief Justice K.G. Balakrishnan of the Supreme Court dealt with senior police officials of Tamil Nadu in 2009 is a case in point which the writer will deal with in just a while.

Our courts of law must learn the right lessons from Teesta Setalvad and Co. who cleverly used the contrived anti-police hysteria of a complicit media to manipulate judges against the Gujarat police. Add to it the ever-tempting cry Muslims-are-in-danger of the secularists, Islam-is-in-danger cry of the Muslims and “secularism is in danger from Hindu communalism” shrill rhetoric of the Generic Church and our men in uniform – the police and armed forces are faced by a double whammy – they are often compelled because of politics-of-minority-ism to function with both hands tied behind their backs and they have the Damocles sword of an anti-police judiciary forever hanging over their heads.

The judiciary must be compelled to see why it should restrain its impulse for overreach and not call for arresting police officers until their guilt has been conclusively established. The Supreme Court admonition to the Delhi police not to file misleading or wrong reports in court with regard to the midnight crackdown on Baba Ramdev and his bhaktas in June 2011 is yet another instance of the judiciary picking the police as whipping boy.

The Delhi police would do well in the highest interests of the country’s police force to refuse to be the fall guy in the shameful event of June 4, 2011. That the UPA government had worked out all options to deal with Baba Ramdev was public knowledge when Kapil Sibal admitted as much to the media. For the Supreme Court to now pretend that the Stalinist midnight assault on Ramlila Maidan was conceived of, cooked and served up to Baba Ramdev by the Delhi police is to assume that the ordinary people of the country are just a vast, mindless, credulous mass of flesh.

The Delhi police chief, after obeying Home Ministry orders to carry out the midnight crackdown should however have stepped down in protest the very next day, for being compelled to disregard and violate every rule in the Police Rule Book; this would have laid the blame squarely where it belonged – right at the doors of the Home Minister and would have jolted the government to its senses.

Fact of the Matter - The CBI

The CBI can take over investigation of a case only under two circumstances –

--- The state government must make an official representation to the central government asking the CBI to take over a particular case or

--- Under directives of the High Court or Supreme Court which bypasses the state government.

Serious accusations of collusion between judges and the political ruling class have been made whenever courts have issued directives for the CBI to take over investigations in cases loaded with political overtones. This collusion happens when ambitious judges want to go places and need political patronage to get there.

The Director of the CBI is appointed from the ranks of the Indian Police Service; and yet, whenever the CBI has been called upon to investigate complex cases with anti-police slant, the CBI consciously ignored its nativity and has either acted like an extended arm of the Congress party or jumped obediently like a helpless circus lion when the judiciary cracked the whip.

CBI investigation into the Vachathi tribal village affair and the subsequent verdict of the Dharmapuri District and Sessions Court which found 269 state government officials guilty of rape and assault against tribal women of Vachathi village is a good example not only of shoddy CBI investigation, but also of selective judicial activism.

The village of Vachathi was raided on 20 June, 1992 by government officials for sandalwood illegally cut by the tribal people from the village in active partnership with the sandalwood mafia around the region. The state government handed over the investigation to the CBI in 1995.

Considering the touching faith that the Supreme Court and the High Courts have in the investigating ability and professional integrity of the CBI, the judiciary will find it very difficult to explain how, if according to early testimonies of the people of Vachathi village, the raiding group of forest, revenue and police officials numbered only around 50 with no mention of rape, the CBI finally indicted 269 government officials for the offence including 84 state police officials besides finding and convicting 17 persons for rape of 18 women!

Accusing the police and our armed forces of rape, mass rape and sexual assault, long after the alleged event, thus making the crime impossible to prove has become a pernicious political trend; political because the end objective of accusations of rape and fake encounters is two-fold: destroy the reputation of the police/army officer concerned and destroy the morale of the force with character assassination and accusations of misconduct so that the police and the army will eventually not act against anti-social and anti-national entities for fear of being maligned and /or dragged to court.

Human rights organizations and activists have therefore been accused of being the over-ground face and voice of underground terrorists.

In the 19 years between the event in June 1992 and the judgment in September 2011, the Vachathi narrative seems to have expanded impressively in action and scope and the numbers of the offenders multiplied by so many times as was guaranteed to get the attention of that section of media and human rights activists who for sustenance feed upon the dead reputations of our police and armed forces.

The writer knows exactly how the original raiding party of 50 became 269 in the CBI report; and what the writer knows the CBI would have known as well. The Madras High Court now owes us all an explanation not only about the CBI’s investigating abilities, but also the High Court’s selective application of its own rules “to pass appropriate orders if investigations are not found to be satisfactory”. It is time the first bench of the Madras High Court put action where its mouth is.

So much for the CBI’s investigating ability; its integrity fares no better. Considering the shameful antics of the CBI in Gujarat, the Gujarat and Madras High Courts must now tell us the basis for court directives to the CBI to take over cases bypassing the state police; and also tell us the basis for their own anti-police harangue in the courts.

The CBI, like the shadowy Congress core group member from Gujarat, widely perceived to be playing Rasputin to the Congress President, has been made Sonia Gandhi’s executing arm against Narendra Modi. The CBI, by its own admission, lied in the Supreme Court to get the Sohrabuddin encounter case transferred out of Gujarat. In November 2011, the CBI was forced to confess in the Supreme Court that it had lied when it alleged that several persons accused in the Sohrabuddin encounter case had relatives serving as magistrates, prosecutors and judges in Gujarat’s lower judiciary.

Ram Jethmalani, lawyer for Amit Shah, former deputy Home Minister of Gujarat and an accused in the case, made a sensational disclosure in court when he alleged that the CBI was brought into the case by Justice Tarun Chatterjee of the Supreme Court, who was/is facing charges of corruption in the Provident Fund scandal, and that an obliging Sonia Congress not only did not pursue investigations against the judge accused of corruption, but even gave him a “post-retirement cushy assignment” for his obliging anti-Narendra Modi position.



Suffice it to test one grain of rice in the pot; and the CBI has been exposed on two counts in the last year alone!

Fact of the Matter - Madras High Court

Nothing exposed the naked duplicity, double-standards, hypocrisy and anti-police bias of the Supreme Court and Madras High Court than their reaction to the violent lawyer-police clash in the Madras High Court on February 19, 2009.

The Madras High Court and several subordinate courts in Tamil Nadu were almost totally paralysed between 2006-2009 because a vast majority of lawyers who are politically affiliated to some Dravidian Tamil-chauvinist party or the other, refused to attend work as expression of their solidarity with the Tamil terrorist organization the LTTE and its chief Velupillai Prabhakaran.

The total number of work days lost by Tamil Nadu’s courts between 2006 and August 31, 2009 is a mind-boggling and utterly shameful 11,840 days. In 2009 alone, as of end of August with four more months to go till end of year, the Madras High Court and all subordinate courts across TN districts lost 5003.5 work days!


On 17 February 2009, a big group of goonda lawyers barged into Court Hall 3 of Justices P.K. Mishra and Chandru and physically assaulted Dr. Subramanian Swamy who had on several occasions spoken out against the LTTE and its Chief. While some thug lawyers threw eggs at Dr. Swamy, other rowdy lawyers roughed him up and landed punches on Dr. Swamy’s head and face.

The writer and two friends were also present in court that day and were witness to the whole sordid episode, besides being assaulted and abused by the lawyers in the court hall as price for closing the doors of the courtroom to prevent more violent lawyers from coming in and for summoning the police standing outside the doors into the hall.

Justices Mishra and Chandru, rare specimens within their species (who ought to have been elevated to the Supreme Court as they deserved), refused to be cowed down by the violence and after asking Dr. Swamy to hand over to them his written complaint which they promised to forward to the Chief Justice of the High Court, also sternly castigated the lawyers for their lawlessness in the order they delivered in court that day.

Ominous clouds portending violence gathered over the Madras High Court in the morning of 19 February because the lawyers suspected that Dr. Swamy may come to court to meet the Chief Justice. Several TV channels which had gathered there video-graphed the violence let loose by the lawyers within the Madras High Court premises in the afternoon.

The writer, who saw one such unedited video of the events of 19 February, can attest to the naked provocation offered by the lawyers to the police who had assembled in large numbers within the court premises to avert any repetition of February 17. This vast section of high court lawyers marched in a procession to the police station located within the court premises and demanded the arrest of Justices Mishra and Chandru for expressing disapproval of lawyers’ conduct in court room 3 on February 17.

The video captured the lawyers on camera as they threw large stones and bricks at the police and then proceeded to vandalise the police station and set it on fire. The lawyers refused to allow firemen to put out the fire and drove them away with threats of physical violence. The violence unleashed against the TN police in the Madras High Court on February 19 was worse than the routine and sustained violence let loose by stone-pelting Sunni Muslims against the J&K police and the paramilitary in Kashmir.

Once the police station was set on fire the police swung into action and used deserved force to dispel the violent mob. Forceful police action against the violent mob in the Madras High Court provided lawyers across the state yet another cause to continue their boycott of courts; only this time they demanded that the judiciary punish all senior police officials including the then Commissioner of Police for their search-and-evict operation.

(To be concluded…)
The writer is Editor, www.vigilonline.com

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