LAW RESOURCE INDIA

Accusations of bias against judges

Posted in ACCESS TO JUSTICE, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on November 10, 2009

THE ARTICLE BY SHRI PP RAO SR ADVOCATE  IN THE TRIBUNE CHANDIGARH PROVIDED BELOW  ADVOCATES ABOUT HARMONY BETWEEN THE TWO STRONG PILLARS OF DEMOCRACY. AGREED BUT THE TAINT OF BIAS DESTROYS THE CREDIBLITY OF JUDGE .  INSTEAD OF DECLARING THE INTEREST AND THEN SEEKING COUNSELS PERMISSION IS A BAD PRACTICE BY JUDGES. THE RULE SHOULD BE THAT – IF THERE IS ANY INTEREST YOU JUST RESCUE YOURSELF. WHY CANT OUR JUDICIARY FOLLOW IT. IMAGINE THE PAIN WHEN YOU COME TO KNOW THAT THE JUDGE HAD INTEREST IN ONE PARTY.

THANKS TO THE MEDIA AND ACTIVIST SUCH ISSUES ARE COMING TO THE FOREFRONT AND IN PUBLIC DISCOURSE  IT IS A KNOWN FACT THAT IN HIGH COURTS WHERE PERSON FROM THE SAME HC BAR BECOME JUDGES / OR IN LOWER JUDICIARY A PERSON BECOMES A JUDGE IN HIS OWN STATE – CORRUPTION IS RAMPANT.

IT IS TIME WE CHECKED THE LOOPHOLES RATHER THAN CRITICIZING THE MEDIA

RAVI KANT ADVOCATE , SUPREME COURT OF INDIA

Media must play its role responsibly

ARTICLE PUBLISHED IN TRIBUNE CHANDIGARH BY SHRI PP RAO , SENIOR ADVOCATE /SUPREME COURT OF INDIA

The judiciary and the media are two strong pillars of democracy. They are easily accessible to the people and enjoy popular support, the media as the watchdog and the judiciary as the dispenser of justice. They play a vital role in upholding the rule of law. According to the Press Council of India, before publishing a news item about court proceedings, it will be appropriate for the correspondent and the editor to ascertain its genuineness, correctness and authenticity from the records. Misleading allegations of bias against a judge tend to undermine the credibility of the judiciary and interfere with the administration of justice.

Three news items have appeared recently; first in a newsmagazine of September 05, targeting Justice S.H. Kapadia, the senior-most judge, then in a national daily dated October 13 continuing the attack and thereafter in the same paper dated October 21. This last report, with the headline “Judge has equal RIL, RNRL shares — but he continues on Bench as parties have no objection”, names Justice R.V. Raveendran in addition. The news items give the wrong impression that the judges are guilty of a serious lapse.

In all fairness to Justice Kapadia, the magazine ought to have mentioned the crucial fact that he had made it clear at the very outset that he had shares in the company, which is a party before him and if anyone had objection, he would not hear the matter. A few illustrations would show that this has been the practice.

In the bank nationalisation case (R.C. Cooper vs. UOI), as soon as the Bench of 11 judges assembled, Justice J.C. Shah announced in the open court that some of them had shares in the nationalised banks and if anyone had any objection, they would recuse themselves from the case. Waiving their right to object, all the counsel requested the court to proceed. Nobody questioned the verdict of the Bench as vitiated by bias.

The government was required to give a hearing to a person before blacklisting him, i.e. disqualifying him from entering into any contract with the government in future. Justice K.K. Mathew, one of the judges on the Bench, had earlier decided this very question as a judge of the Kerala High Court. As the case was called out, he mentioned this fact and gave a chance to object. All of us representing the parties said, we had no objection to the judge hearing the matter. Traditionally, while hearing a case, judges have an open mind. They are conscious of their solemn oath to act without fear or favour, affection or ill will. If a judge is impressed with an argument advanced before him, which was not put forward earlier, he would change his mind.

There are instances where the same judge took a different view in a subsequent case in the same court. Justice N.H Bhagwati, who was a member of the Constitution Bench in State of Bombay vs. United Motors, interpreted Article 286 (2) of the Constitution dealing with the levy of tax on the sale or purchase of goods which takes place in the course of inter-state trade or commerce. Subsequently, in Bengal Immunity Company vs. State of Bihar, he over-ruled his decision in the United Motors case, giving reasons for interpreting the same provision differently.

Apprehension of bias could be for any reason. Haryana terminated the services of a judicial officer accepting the unanimous recommendation of the Chief Justice and all the judges of the High Court. When he tried to challenge the order in the Supreme Court directly, apprehending bias on the part of High Court judges, he was asked to move the High Court first. It was because when the judges sit on the judicial side, they are not bound by their own view taken on the administrative side earlier. Hearing the case in the open court, they are free to take and do take an independent decision on the basis of the record and arguments advanced by counsel. There have been several instances where the judges sitting on the judicial side have set aside resolutions of the Full Court to which they were parties on the administrative side. There is no question of reasonable likelihood of bias in such cases.

In Roopa Ashok Hurra’s case, the Supreme Court permitted a person aggrieved by a judgement of the court to file a curative petition, after the dismissal of his review petition, on two grounds. One of them is that the judge who decided the case had failed to disclose his connection with the subject matter or the parties, giving scope for an apprehension of bias. The basic principle is that justice should not only be done, but be seen to be done. Hence the requirement that a judge should disclose his connection with the subject matter or the parties to the case. It is open to any party to object and have the case transferred to another judge.

As Frank, a judge, pointed out, “if ‘bias’ and ‘partiality’ be defined to mean the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial, and no one ever will. The human mind, even at infancy, is no blank piece of paper.” Because of their training and tradition, judges rise above their predilections and take decisions objectively. This is the basis on which power of review is conferred on judges to correct their own judgements and orders pronounced in open court on the ground that they suffer from errors apparent on the face of the record.

In England, Field, a judge, held that a magistrate who subscribed to the Royal Society for the Prevention of Cruelty to Animals was not thereby disabled from trying a charge brought by that body of cruelty to a horse, observing that a mere general interest in the general object to be pursued would not disqualify. There must be some direct connection with the litigation. Likewise, being a shareholder of the company without any other direct interest in the subject matter of the dispute before the court, does not disqualify a judge from deciding the case. However, law insists that he ought to disclose this fact. The test is whether there is substantial possibility of bias animating the mind of the judge against the aggrieved party.

In the Jammu and Kashmir High Court, the son of a judge who is an advocate could appear before his father if he was sitting with another judge or judges on the Bench, but not when he was sitting alone. In the Supreme Court, judges always sit in Division Benches with one or more brother judges. A judge with a closed mind is a contradiction in terms.

It is well settled that the plea of bias can be waived. Normally, when a judge discloses his interest in the case, the lawyers would not object because of their faith in the honesty of the judge. Two out of three judges of the High Court of Punjab and Haryana who heard Inderpreet Singh Kalhon’s case had been members of an administrative committee which found that the selection of the petitioners was tainted and recommended cancellation of their appointments as judicial officers. When they mentioned this fact, nobody objected.

In the Supreme Court, Justice S.B. Sinha felt that the judges should have recused themselves from hearing the matter, but Dalveer Bhandari, a judge, rightly disagreed with this view. He held that the judges having disclosed the fact that they were members of the committee, in the absence of any objection from the petitioners, there was no illegality in their hearing the matter. As the law stands today, it is unfair to allege bias on the part of judges who had fairly and voluntarily disclosed their share holding in the company and heard the case in the absence of any objection.

Freedom of speech is the birthright of the media. But freedom does not mean licence to denigrate the judiciary and erode the confidence of the people in the institution.Rule of law needs a credible judiciary and a responsible media.

The writer is a senior advocate of the Supreme Court of India.

http://www.tribuneindia.com/2009/20091110/edit.htm#4

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