If Judges were paid back in the same coin....? II
by Radha Rajan on 29 Jan 2012 5 Comments

Sauce for the Goose is not sauce for the Gander: The Madras High Court and the Supreme Court dealt with the lawyer-police clash on February 19 in exactly the same manner that Sonia Gandhi and her minions in the UPA government, the CBI, and the Supreme Court dealt with the Gujarat riots in 2002. 


Just as the UPA government refuses even now to speak publicly about the burning alive of Hindu pilgrims in the Sabarmati Express at Godhra station which triggered the riots, the Madras High Court and the Supreme Court refuse to talk about the violent attack against Dr Swamy and other visitors in court on February 17, and the grave provocation offered by the lawyers to the police and burning down the police station in a horrific act of vandalism which caused the police to use force against the mob.


While the then Chief Justice of India, K.G. Balakrishnan, promptly ordered five senior police officials to be transferred, Justice Ibrahim Khalifulla of the Madras High Court pronounced the officials to be in contempt of court. Both judgments need to be read attentively by every intelligent ordinary citizen of this country to understand the brazen double-standards of the judiciary when it comes to dealing with their own species and sub-species; and the one-sided, hypocritical and downright unjust pronouncements which can erode the faith of the common man and our men in uniform in judges and the judicial process.


Justice Ibrahim Khalifulla’s judgment indicting the TN police in fact completely ignored and even set aside the Interim Report submitted by Justice Srikrishna Commission of Enquiry which was constituted to go into the events of February 19.


My view
, albeit prima facie, is that the soft-pedalling policy followed by the Madras High Court Judges has led to the present piquant situation. The lawyers appear to have been encouraged by the wrong 'signals sent out and seemed to think that they could do anything and get away within the Court premises. Regretfully, far from being the upholders of the rule of law, the lawyers seem to have behaved as hooligans and miscreants. The incidents that transpired over a last month or so make it clear that the lawyers seemed to be under the impression that, because they are officers of the Court, they are immune from the process of law and that they could get away with any unlawful act without being answerable to the law enforcing agency. It is most unfortunate that the soft policy adopted by the Acting Chief Justice of Madras High Court and its administration sent out clearly a wrong message that encouraged and emboldened the lawyers into becoming law breakers.

..................

I would submit that the Hon'ble Supreme Court should take this opportunity to exercise its extraordinary Constitutional powers and lay down sufficient guidelines for the behaviour of the lawyers within and without the Court premises as the Bar Councils have not been acting as an effective regulatory body of their professional conduct. It would be ideal if the Advocate's Act is amended to ensure a better disciplinary mechanism of the profession of law, since it affects not only lawyers but also litigants, the administration of the justice in the country, and finally the rule ·of law itself. Until such time that appropriate Legislation is made, it is desirable that this Hon'ble Court should formulate appropriate guidelines to be followed by lawyers and enforced by all Courts of law. (Excerpt from Interim Report On the Incidents that Occurred on the 19th February 2009 at the Madras High Court by Justice Srikrishna, March 9, 2009)


Justice Ibrahim Khalifulla of the Madras High Court pronounced the five senior police officials to be guilty of contempt of court for having caused loss of court working hours!!
 

To the best of this writer’s knowledge, neither the Supreme Court nor the Madras High Court has even begun to concretise Justice Srikrishna’s recommendations to discipline lawyers and make them accountable to the law. Lawyers of the Madras High Court predictably staged violent protests against the Interim Report and besides burning copies of the report, also burnt the effigy of Justice Srikrishna inside the court. Every reader is urged to read the Justice Srikrishna Interim Report to experience the stench of the cesspool from which the state picks its judges.

http://www.vigilonline.com/index.php?option=com_content&task=view&id=1092&Itemid=1

http://www.hcmadras.tn.nic.in/Suo-motu-(taken-up-WP3335of2009).pdf

http://www.vigilonline.com/index.php?option=com_content&task=view&id=1075&Itemid=1

 

Justices M.Y. Eqbal and T.S. Sivagnanam from behind their judicial bench demanded to know of the police why they had not arrested their colleagues for rape, and why the law which was applicable to the common man was not applicable to the police. Incidentally, lawyer Pugalendi who filed the case against the police in the Irula tribal women case which inspired the first bench of the Madras High Court to harangue the police, is one of the goonda lawyers who assaulted Dr. Swamy in court on that fateful day and is mentioned by name in the Justice Srikrishna interim report on the event.


The Supreme Court and the Madras High Court jumped into the lawyer-police clash fingers to nose, both feet first, without adhering to the fundamentals of the judicial process – that both sides need to be heard before pronouncing judgment and that justice must not only be done but must be seen to be done.


While the police have been judged, juried and executed by the Madras High Court and the Supreme Court, till date, the lawyers who assaulted Dr. Swamy, the writer and her friends and hapless policemen in Court Hall 3 on February 17, or the lawyers who called for the arrest of Justices P.K. Mishra and Chandru, or the lawyers who pelted stones at the police and proceeded to set fire to the police station within the court premises, have not been arrested and thrown behind bars where they belong.


Even more shameful, there is no convincing explanation for why the five-member bench constituted to look into the conduct of the lawyers of the Madras High Court and other courts in TN has not had a single sitting in the three years after February 2009.


Perhaps the time has to come to deny loose remarks and insulting observations of judges the shield of contempt-of-court. Perhaps the time has also come to record every observation and comment made by judges during trial as annexure to the final judgment and thus be placed on court record.

 

Samples of judicial wisdom

1. Swaminathan, why are you bringing stray dogs into this court?

Milord, their right to life.......

You are speaking of rights Swaminathan, what about duties. Do you know that the constitution also speaks of duties of citizens?


There is nothing in the constitution that says animals have duties; while it is certainly true that animals have certain rights on paper. And yet Justice Subhashan Reddy, the then Chief Justice of the Madras High Court, let loose uninformed comments in court when a PIL filed against the government came for admission before the first bench.


2. You are bringing this case for animal rights into this court? Do you know I am a non-vegetarian?


These were the scintillating opening remarks by Justice V.S. Sirpurkar (now judge in the Supreme Court) in the second bench of the Madras High Court along with Justice Karpagavinayakam when the case against the Chennai corporation for serious violations of the Dog Rule Act 2001 came up for hearing before him. What does the eating habit of judges, no matter how unfortunate, have to do with the law and implementation of the law?


3. Fish-stalls? You are saying fish-stalls have come up in the place of a temple? (Smile) It is easier to remove fish-stalls from the road than to remove temples.(Uproarious laughter)


Justice Elipe Dharma Rao, second bench of the Madras High Court, hearing the writer’s arguments against government action razing Hindu street temples without notice or prior intimation.


4. Temples? You say these are temples. First they will build one room and call it temple. Then they will build a kitchen and then bedroom.


This was Justice M.Y. Eqbal, Chief Justice of the Madras High Court, on the first bench along with Justice Sivagnanam, hearing the writer’s case against Supreme Court directive to remove street temples which the government considered encroachment on public land.


A few months later, a church in Chennai which had come up illegally, not on the road, but on state government land belonging to the Tamil Nadu Housing Board, went to court seeking stay on demolition. The case came up for hearing before the second bench headed by Justice Elipe Dharma Rao. The learned judge stayed the demolition and advised the state government to accept appropriate compensation for the land that the church had usurped and occupied illegally.


Operative part of the judgment? The court recommends to the government that the church should not be demolished. Readers are requested to re-visit the learned judge’s comments on Hindu temples and fish-stalls.

http://www.vigilonline.com/index.php?option=com_content&task=view&id=1413&Itemid=71


5. If your government is unable to protect minorities, then you quit office. We can’t tolerate persecution of religious minorities. If your government cannot control such incidents, then quit office.


The writer’s all-time favourite judge, Justice Markandey Katju retd., in the Supreme Court from a three member bench headed by the Chief Justice of India, hearing a petition filed in the Supreme Court by Raphael Cheenath, Archbishop of Orissa.


6. In a little village of Tamil Nadu, in Dindigul district, the Harijans of Balasamudram village refused to allow Muslims of the village to pass through their habitation to the Muslim burial ground. The Muslims were asked to take another route to their burial ground. Now this is a very small local issue confined to the borders of the village which the Muslims rightly ought to have settled by dialogue with the Harijans. Instead they chose to approach our secular courts for redress. The following excerpt is from the writer’s Plainspeak in www.vigilonline.com in 2005 about another case heard by Justice Markandey Katju in his capacity as Chief Justice of the Madras High Court.


"Allowing the petition, the Bench observed that the Muslims in the village were entitled to take the bodies of the dead through public streets. The authorities should ensure that there were no communal clashes or disturbance of public order by any one.


‘Whoever tries to create communal tension or ill-will must be dealt with, with an iron hand in accordance with law, including the relevant provisions of the IPC, Cr.PC and other penal statutes", the Bench said.


The Bench also observed that India was a free, democratic and secular country. People of all religions, castes and communities were equal under the Constitution, vide Articles 14 to 18 and they had a right to freely practice their religion, vide Article 25.


"India does not belong to the Hindus alone. It belongs equally to Muslims, Christians, Buddhists, Jains, Parsis and Jews and all are equal before the law, the Madras High Court has observed."


"It is not that the Hindus can live in this country as first rate citizens while others can live only as second rate citizens. In our country all citizens are entitled to live as first rate citizens," the First Bench comprising Chief Justice Markandey Katju and Justice F.M. Kalifulla observed while allowing a Public Interest Litigation on Friday."


"Hence the only policy which will work in our country, hold it together and take us to the path of prosperity is the policy of secularism and equal respect to all communities. This was the path shown to us by our great emperors Ashoka and Akbar, who gave equal respect to all religions and communities," the Bench said and added that without such a policy India as a democracy could not survive for long." (The New Indian Express, July 16, 2005, page 4, "Give all sections due respect: HC)


This will not be the first or last time that Justice Markandey Katju will deliver homilies to chief ministers, bureaucrats, litigants and anyone who had to perforce listen to him. Besides this startling word-for-word repetition of Gandhi’s idea of this nation, as reproduced by the author in the book Eclipse of the Hindu Nation: Gandhi and his Freedom Struggle, Katju’s other learned observation is that this nation is a country of immigrants; a strange opinion with no historical evidence to back his claim, which Judge Katju repeats from every forum that invites him to speak.


7. Before parting with this case we would like to mention that India is a country of tremendous diversity, which is due to the fact that it is broadly a country of immigrants (like North America) as explained in detail by us in Kailas & Others vs. State of Maharashtra, JT 2011 (1) 19. As observed in paragraph 32 of the said decision, since India is a country of great diversity, it is absolutely essential if we wish to keep our country united to have tolerance and equal respect for all communities and sects (see also in this connection the decision in Hinsa Virodhak Sangh vs. Mirzapur Moti Kuresh Jamaat, AIR 2008 SC 1892 vide paragraphs 41 to 60). It is due to the wisdom of our founding fathers that we have a Constitution which is secular in character, and which caters to the tremendous diversity in our country.


It may be mentioned that when India became independent in 1947 there were partition riots in many parts of the sub-continent, and a large number of people were killed, injured and displaced. Religious passions were inflamed at that time, and when passions are inflamed it is difficult to keep a cool head. It is the greatness of our founding fathers that under the leadership of Pandit Jawaharlal Nehru they kept a cool head and decided to declare India a secular country instead of a Hindu country. This was a very difficult decision at that time because Pakistan had declared itself an Islamic State and hence there must have been tremendous pressure on Pandit Jawaharlal Nehru and our other leaders to declare a Hindu State. It is their greatness that they resisted this pressure and kept a cool head and rightly declared India to be a secular state.


This is why despite all its tremendous diversity India is still united. In this sub-continent, with all its tremendous diversity (because 92 per cent of the people living in the sub continent are descendants of immigrants) the only policy which can work and provide for stability and progress is secularism and giving equal respect to all communities, sects, denominations, etc. (Justice Markandey Katju in the Haj Subsidy case, 28-01-2011)

http://www.vigilonline.com/index.php?option=com_content&task=view&id=1634&Itemid=1


Justice Markandey Katju is now Chairman, Press Council of India. Judicial hubris is not satisfied with the blood of the police, elected representatives, high bureaucrats, Hindu sensibilities, street dogs and street temples. Ancient Hindu temples and their hoary traditions too have not been spared from the depredations of the lawyer-judge nexus.


Justices R.V. Raveendran and A.K. Patnaik of the Supreme Court had the unprecedented temerity to ask for the sacred vaults of the Sree Anantha Padmanabha Swamy temple to be opened simply because one lawyer Sundararajan went to the Kerala High Court alleging mismanagement of temple wealth by the Thiruvananthapuram royal family who by self-definition were the First Servants of the Bhagwan.


Lawyer Sundararajan dragged the royal family to court; and with the family the temple was dragged to the court too. Having ordered the vaults of the temple to be opened, in what Hindus perceive to be an act of unforgivable sacrilege, the judges took umbrage when the King invoked devaprasnam to ascertain Bhagwan’s wishes and views about the crisis which had befallen the Hindus of Kerala.


The devaprasnam explicitly forbade the opening of Vault B and advocate for the King of Thiruvananthapuram, Senior Counsel K.K. Venugopal, conveyed the content of the devaprasnam to the Supreme Court. The Honourable Supreme Court was not amused. To think a devaprasnam could overrule the learned judges and actually warn of dire consequences if Bhagwan Anantha Padmanabha Swamy’s voice was disregarded, was insult to the dignity of Milords; and they made their displeasure with Bhagwan amply clear.


8. Faced with a sensitive issue of making an inventory of the temple wealth, devising ways and means for its protection and public exhibition of selected items of cultural value, the bench asked, "Are you (royal heirs) presenting the case before the court or before Deva Prasnam?"

http://articles.timesofindia.indiatimes.com/2011-09-03/india/30109896_1_royal-family-sree-padmanabhaswamy-marthanda-varma

http://www.vigilonline.com/index.php?option=com_content&task=view&id=1562&Itemid=71


It bears mention that the royal family did not approach the courts but were forced to be present there because the country’s polity has set two ugly precedents-

--- That Hindu temples alone will be administered by the government which includes not only pirating the wealth of the temples, moveable and immovable, but also interfering in the religious affairs of temples too

--- That judges will be placed over temples, temple deities, faith and tradition


The sacred tradition of devaprasnam is undertaken by temples around the country under different names. Devaprasnam invokes the presiding deity of the temple to speak through an individual who is chosen with great care and after rigorous procedures, to be the temporary abode of the deity. The presiding deity after being invoked in the body of this person speaks through him. The devaprasnam is conducted whenever the trustees and the bhaktas feel a overwhelming need to invoke the deity.


The words uttered during devaprasnam are therefore the voice of Bhagwan or Devi and is sacrosanct and inviolable. This is the way of dharma and this is how Hindus conduct their lives. This is faith and this is tradition. Hindu bhumi breathes and lives only by faith and veneration.


Judges deciding the fate of Sree Anantha Padmanabha Swamy temple and Srirama’s janmabhumi placed themselves right on top of the Hindu bhumi – over faith, over tradition, over Hindu temples and above all, over Hindu Gods. And they are not going to take kindly to any attempt to dislodge them from these undeserved and un-Hindu heights.


Judges appoint themselves


Judges, in keeping with their exalted larger-than-gods status in the country, are the only species in the ruling elite who appoint themselves; they are svayambhu. Judges have been appointing themselves since 1995 and if anyone thinks de-linking the selection process from the influence of politicians has improved the selection process think again. Judges to the higher judiciary - High Courts and Supreme Court, are selected by a panel of judges comprising the Chief Justice and senior-most judges in the concerned court.


Let us assume the panel is a mixed group of the good, the bad and the ugly. Good proposes one name for judge and Bad and Ugly have their names ready too. If Good Judge wants Good Candidate to be accepted as judge by the panel he will have to accede to Bad and Ugly judges proposing Bad and Ugly Candidate for appointment as judges too.


Anything is possible thereafter – that Good Judge may swallow the poison of having to say yes to Bad and Ugly if he can push in one Good Judge into the nation’s assembly line. It is equally possible that Good may be horrified at the names proposed by Bad and Ugly and so make the decision that while it may not be possible for him to push for a good judge at least he can make sure Bad and Ugly do not push in more bad and ugly into the assembly line.


For ordinary citizens, it is heads Ugly wins, tails Good loses. If readers keep this in mind every time we read about this judge or that making loose observations about the police, about the armed forces, every time a judge harangues a politician or an ordinary litigant, every time there is an order that destroys street temples, kills animals, wounds Hindu sensibilities, it is because the selection process of judges is opaque; it is opaque because most advocate-pools from which judges have to be picked are cesspools.


Police, like the army, must be insulated from our judges


As pointed out earlier by the writer in her column on the orders of the Supreme Court to open the vaults of the Sree Anantha Padmanabha Swamy Temple, anyone can go to our courts and file a writ patently anti-police, anti-armed forces and anti-Hindu in nature and our courts jump at it ignoring the motives and character of the person filing the writ. The late Soundararajan (who went to court asking for the vaults to be opened), Teesta Setalvad, Traffic Ramaswamy, Pugalendi, Henry Tiphagne and foreign-funded NGOs being serial offenders in this regard.


The Supreme Court has now bared its fangs now against the army and has demanded from the army why court martial proceedings have not been initiated against officers accused of killing “innocent civilians” in an encounter in Patribhal, in South Kashmir in the year 2000. The army suspected them of being Lashkar-e-toiba terrorists and naturally do not want to take punitive measures against what was a decision taken on the ground under difficult circumstances. Whatever action may be contemplated and even if no action is taken at all, it has to be the army’s internal decision and under the Army Act and not under the crack of the judicial whip.


The Supreme Court and the Madras High Court punished police officers for dealing with a violent mob of lawyers in a manner they deemed fit. Our men in uniform respond on the ground to threats and challenges to national security. It is always possible that there are errors in judgment in decisions made and actions executed to meet these threats.


Indian polity must grapple with the question if the judiciary can be vested with overarching powers which punishes the police and questions the army for decisions taken in the line of duty. The nation owes our men in uniform this much. While the pressures on the army are well-known, very little is known about the pressures on our police force. Our police force is called upon to deal with varied threats to society and state; they are now dealing with:


--- Anti-social elements posing threats to law and order

--- Criminals indulging in offences from the petty to the heinous

--- Organized gangs networked with international cartels smuggling drugs, weapons, currency, live and dead endangered species, and contraband

--- Naxal/Maoist insurgency and targeted anti-police violence

--- North-East separatist Christian terrorists

--- Islamic jihadis


Keeping in mind the expanded scope of policing in the country, Parliament must seriously consider the question if the police too should not be provided a mechanism like the Court Martial so that all offences by the police are investigated and tried internally by the police itself. After all, even the money-driven media industry insists on self-regulation.


If judges were paid back in the same coin, maybe, just maybe the judiciary which resembles the Augean Stables today may yet be cleansed.



(Concluded)

The author is editor, www.vigilonline.com

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