When state commits adharma through its A-G

When adharma overrides dharma, judicial independence is compromised which is what took place when the Maharashtra government alleged that Justice Abhay Oka was biased against it but escaped a charge of contempt of court when advocate-general (A-G) Ashutosh Kumbhakoni tendered an unconditional apology to the judge which he accepted.

Kumbhakoni was himself a high court judge in 2008 but resigned because former President Pratibha Patil ignored his plea to maintain his seniority. He never drew a salary while acting as a judge which speaks for his principles but by alleging bias against an upright judge like Justice Oka, he lost some of the aura which he had acquired because of his adherence to principles.

The A-G is the seniormost lawyer of the state and is not supposed to be a mere mouthpiece of the government but advise it on contentious matters. His advice may not be appreciated which is why by consenting to file an affidavit signed by deputy secretary Vijay Patil of the home department, Kumbhakoni fulfilled his karma by committing adharma.

Senior Counsel S.G. Aney, who had to resign on March 22, 2017 because of his speeches demanding a separate state of Vidarbha, is also straightforward. But Kumbhakoni, despite his principles, sticks to espousing the government line whether right or not whereas Aney did not. To each his own.

The application filed by Deputy Secretary of State’s Home Department Vijay Patil said: “With utmost respect and utmost regards towards Hon’ble Shri Justice AS Oka, it is humbly submitted that during the course of hearing the Hon’ble judge has expressed such views which clearly demonstrate that the Hon’ble judge is biased in (the) subject matter of these petitions.”

The application then went on to “demonstrate” the bias by citing examples of Justice Oka’s criticism of the government on the dahi handi festival and during the hearings on the recently amended noise pollution rules on declaration of silence zones.

But a judge is free to criticize the government and even the chief minister if there is evidence to prove wrongdoing as when former chief minister Manohar Joshi favoured his son-in-law Girish Vyas to permit him to build a skyscraper on a plot of land earmarked for a primary school. Justice B.N.Srikrishna ordered its demolition. And Kumbhakoni who is today the A-G of the state, was on the side of the petitioner, Vijay Kumbhar, at that time. For lawyers, there is nothing really right or wrong but thinking makes it so.

In 1993, after the demolition of the Babri Masjid in Ayodhya, the Maharashtra government colluded with the rioters to allow them a free hand to burn, loot and kill Muslims whose dead bodies had bullet entry and exit wounds through their heads. When Justice B.N.Srikrishna indicted the Shiv Sena, he was attacked within the high court and outside by the saffron brigade who tabled his report on the floor of the legislative assembly and promptly rejected it. So much for justice at the hands of the state which itself perpetrates injustice.

All this brouhaha overshadowed the fact that the Supreme Court delivered two landmark judgments in quick succession this fortnight. Everyone missed the fact that the chief justice of India (CJI) J.S. Khehar delivered a retrograde dissenting judgment in which he declared that the talaqe-bidat or instant triple talaq was protected by Article 25 of the Constitution which allows all citizens to practice the religion of their choice. He equated the right of Muslim men to pronounce triple talaq in a single breath with fundamental rights which is pernicious logic because Muslim women are reduced to the status of chattels.

Dissenting judgments often enunciate the correct legal position although they do not have effect in law because the law is declared by the majority. But the minority judgment of Justice Khehar does the former chief justice a great disservice prior to demitting office because he will be remembered for “beseeching Parliament” to lay aside internal differences and enact a law on triple talaq.

He conveniently shoved the judiciary’s responsibility back to Parliament because when there is no law on the subject, the judiciary can declare the law without an eye on religious votebanks, which is what the MPs need to exploit. Justice S. Abdul Nazeer who signed this minority judgment was reportedly the only judge who never asked a single question while the arguments were going on.

Judges who will be remembered by posterity are a mix of erudition and radicalism because to conform is easy but to challenge tradition is not. And so we have judges like Justice Jasti Chelameshwar who created a storm by refusing to attend collegium proceedings and earlier Justice H.R. Khanna who declared that the state could not suspend the right to life and liberty during an Emergency. Indira Gandhi superceded him, forcing him to resign from the apex court so that he has gone down in history as the judge who stood up to Indira Gandhi. He would have been the President of India had he not lost to Zail Singh, Gandhi’s handpicked man.

Finally, the unanimous judgment of all nine judges declaring the right to privacy a fundamental right was a foregone conclusion because if the converse were true, the result would have been farcical. India continues to be a sovereign, secular, democratic, republic and the right to privacy was held to be part of Article 21 in several earlier judgments. Hence, Justice Dhananjaya Chandrachud, writing for the CJI and three other judges, declared that all the previous judgments which ran contrary to the reasoning of the nine-judge bench stood overruled. This was expected.

And so, Justice Jagdish Singh Khehar will fade into the mists of time as a mediocre judge who headed the Indian judicial family from January 4 to August 28, 2017. One allegation which may stick was that he was named in the suicide note of the late Arunachal Pradesh chief minister Kalikho Pul for demanding a bribe of Rs 49 crore to deliver a favourable verdict. That may not be true but judges like Caesar’s wife must be above suspicion. Without a whisper to the contrary.

The author holds a PhD in Media Law. He is a journalist-cum- lawyer of the Bombay High Court

THE A-G is the seniormost lawyer of the state and is not supposed to be a mere mouthpiece of the government but advise it on contentious matters