WE often read newspaper reports of judges allegedly commenting on the work and conduct of the executive and its members. Very recently, my wife, Nutan, and I found ourselves in a somewhat similar situation when the Lucknow bench of the Allahabad High Court made certain statements about both of us in separate Public Interest Litigations (PILs). Both the cases are still under judicial process and hence I cannot and shall not make any comment on them except to quote them and academically discuss some of the issues that naturally arise out of them.
The first of these happened in a PIL filed by me regarding the frequent strikes and work boycott called by advocates in Uttar Pradesh. No one would disagree with the fact that this boycott has become a big challenge to the entire judicial process. Just like no executive can perform without government servants, no court of law can ever deliver justice without the very active participation of lawyers. Strikes, work boycott by advocates and the like jeopardise the entire judicial process and put the litigant’s fate in complete limbo.
The Supreme Court of India has been very strict and clear about these strikes. In Mahabir Prasad Singh vs Jacks Aviation Pvt Ltd, it said, “Judicial process must run its even course unbridled by any boycott call of the Bar, or tactics of filibuster adopted by any member thereof” and in Ramon Services Pvt. Ltd vs Subhash Kapoor, it said, “With the strike by the lawyers, the process of court intended to secure justice is obstructed which is unwarranted under the provisions of the Advocates Act”.
In Ex-Capt Harish Uppal vs Union of India, it made it very clear: “It is also settled law that a lawyer who has accepted a brief cannot refuse to attend court because a boycott call is given by the Bar Association. It is settled law that it is unprofessional as well as unbecoming for a lawyer who has accepted a brief to refuse to attend court even in pursuance of a call for strike or boycott by the Bar Association or the Bar Council. It is settled law that courts are under an obligation to hear and decide cases brought before them and cannot adjourn matters merely because lawyers are on strike.”
The High Court also agreed to this fact and said “The strikes by advocates have become endemic, and have virtually plagued the judicial system in the State of UP. The State judiciary loses thousands of working days in a year due to strikes by advocates on the causes” but at the same time, I was chastised for taking up this cause and the High Court said, “We have strong doubt about the bonafide of the petitioner No. 1 in filing so many writ petitions in public interest. He appears to be busy to popularise himself, and to see his name in the newspapers whenever an order is passed by the Court”.
In a different PIL, my wife, Nutan, challenged the Special Protection Group Act of 1988 as being against the right to equality as stated in Article 14 of the Constitution. The basic premise was that the various courts have repeatedly said that security cannot be associated with a given post, howsoever sensitive the post might be. Again, the courts have always held that state security can only be made on a case-to-case basis after making individual assessments. The PIL also said that if SPG security is considered as among the best, it shall also be provided to ordinary citizens on a need basis, if the situation so warrants, because the law treats the life of every individual as equal, whether a PM or an ordinary citizen.
Strikes, work boycott by advocates and the like jeopardise the entire judicial process and put the litigant’s fate in complete limbo.
The High Court dismissed this petition, saying that it is entirely baseless. But, other than this, it also made certain other observations worth noticing. It said the PIL “has been filed with an oblique purpose for seeking publicity”. It also said that “she has become a self-styled PIL specialist and her name regularly appears in newspapers”.
At this juncture, I find it relevant to mention what the Supreme Court recently said in Om Prakash Chautala versus Kanwar Bhan and others. “It needs no special emphasis to state that a Judge is not to be guided by any kind of notion. The decision making process expects a Judge or an adjudicator to apply restraint, ostracise perceptual subjectivity, make one’s emotions subservient to one’s reasoning and think dispassionately. He is expected to be guided by the established norms of judicial process and decorum.”
Similarly, the role of a Judge and the judicial approach has been defined by the Supreme Court in State of MP vs Nandlal Jaiswal, “We may observe in conclusion that judges should not use strong and carping language while criticising the conduct of parties or their witnesses. They must act with sobriety, moderation and restraint. They must have the humility to recognise that they are not infallible and any harsh and disparaging strictures passed by them against any party may be mistaken and unjustified and if so, they may do considerable harm and mischief and result in injustice” and in AM Mathur vs Pramod Kumar Gupta and others, “Respect to those who come before the court as well to other co-ordinate branches of the State, the executive and the legislature. There must be mutual respect.”
ANOTHER relevant fact that needs to be kept in mind while analysing the above situations is what the Supreme Court has said about the right to reputation in its numerous orders. For instance, in Umesh Kumar vs State of Andhra Pradesh and another, it said, “Personal rights of a human being include the right of reputation. A good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property. Therefore, it has been held to be a necessary element in regard to right to life of a citizen under Article 21 of the Constitution”. This is enumerated again and again, including in Board of Trustees of the Port of Bombay vs Dilipkumar Raghavendranath Nadkarni and others, emphasising that the personal reputation of an individual is a fundamental right bestowed by the Constitution.
Since these matters are still under judicial consideration and making any definite opinion on them would be considered inappropriate, hence I leave the matter as it is, where various facts have been presented as per the records, without making any subjective opinion about them, for readers to form their own opinions in their own way, as per their understanding, not necessarily about the above two cases but about the larger academic issues involved in these judicial cases.
Amitabh Thakur, an IPS officer from UP, is also working for transparency in governance. The views expressed are personal.