The intellectual character of the Supreme Court has visibly improved over the last 3-4 years. With Justice SH Kapadia taking over as the Chief Justice of India in May 2010, its ethical commitment as an institution has also acquired a sharp, new edge. A remarkable blend of the intellectual and the ethical, the December 7 judgment in Sumedh Singh Saini\'s case must surely rank as one of the finest judgments in the history of the Court. On the question of \'\'judicial bias\'\', it is by far the boldest judicial verdict ever pronounced by an apex court anywhere in the world.
Bias is a \'\'condition or state of mind which sways judgment\'\', ruled an eight-member Bench of the Supreme Court of Canada in Wewaykum Indian Band vs. Canada in 2003. \'\'Impartiality is the fundamental qualification of a judge and the core attribute of the judiciary. It is the key to our judicial process.\'\'
The key to the December 7 judgment quashing all the orders passed by the Punjab and Haryana High Court in Saini\'s case is the complete want of impartiality of the Judge who authored them and his blatant \'\'transgression\'\' of jurisdiction, propriety and procedure in order to \'\'target\'\' Saini (who had conducted an enquiry against the Judge in the Ravi Sidhu - Punjab Public Service Commission scam in 2002).
So severe is the Supreme Court\'s displeasure with the Judge that it chooses not to name him even though all the orders quashed by the Court contain his name. It chooses instead to call him \'\'Mr. Justice X\'\'. So injudicious is his conduct that he must be depersonalized, as it were, to serve as an example, a paradigm of what a judge must never be.
One of the three Judges from whom work was withdrawn by Chief Justice AB Saharya of the Punjab and Haryana High Court in 2002 for their involvement in the Ravi Sidhu scam, Mr. Justice \'X\' nursed an abiding grudge against Saini. It was a grudge that consumed Mr. Justice \'X\' throughout his post-2002 tenure up to his retirement in 2010, and gained in expression with his ascent in seniority. Fuelled and exploited by Saini\'s detractors, it drove him into \'\'misplaced sympathy for a cause\'\' that judicial wisdom would do better to transcend, the cause of terrorism camouflaged as protection of human rights. To be fair to him, Mr. Justice \'X\' is not the only judge in the country who can be faulted on this count.
Both the general flow of discussion in the December 7 judgment and its analysis of specific legal-technical questions (such as the nature and scope of Section 482, CrPC and the applicability of the principle of res judicata to petitions for habeas corpus) show that the Supreme Court\'s own sympathies lie clearly with the police officers battling terrorism.
The judgment is marked by a sense of perspective that many Supreme Court decisions of the 1990s bearing on terrorism in Punjab lacked. Completely absent is the platitudinous judicial rhetoric associated with Article 21 of the Constitution, a provision which (for all its richness, rediscovered in 1978 in the Maneka Gandhi case) has often marked the outer limit of Indian legal understanding.
Reacting emotionally to former Taran Taran SSP Ajit Singh Sandhu\'s suicide in 1996 (by throwing himself before a running train near Lalru), KPS Gill, then in retirement, reminded the higher judiciary of the constraints forced upon them by the onslaught of terrorism in Punjab. Officers like Sandhu, he said, took courage in both hands and fought terrorism at a time when the \'\'writ of the Supreme Court ran only from Delhi to Palam\'\'.
A bit of a hyperbole, no doubt, but the brilliance of the metaphor and its essential aptness must not be missed.
Having been indicted by Chief Justice Saharya in his in-house report to the Chief Justice of India on the strength of vital inputs provided by Saini as the then IGP (Intelligence), Punjab, with which he had been directly confronted by the decorous but hard-hitting Chief Justice, Mr. Justice \'X\' could not, in any event, have heard any matter relating to Saini. His wilful failure to recuse, nay, his suo motu activism in Saini\'s case is particularly reprehensible because it happened in a case that exemplifies the nation\'s battle against terrorism in Punjab.
At the heart of the December 7 verdict is its meticulous unravelling of how Mr. Justice \'X\', presiding over a Division Bench hearing appeals against acquittal, turned a criminal case involving Saini as a victim (of an assassination attempt in 1991) into a case wherein he figured as the main accused, directed to be probed by the CBI for alleged abduction, torture and murder.
This Kafkaesque metamorphosis was accomplished by Mr. Justice \'X\' without shedding a tear for the three security personnel (including Saini\'s driver) who lost their lives in the 1991 bomb blast engineered by terrorists in broad daylight in Chandigarh\'s Sector 17. Badly injured, two other security personnel survived but only upon amputation of their limbs. Then SSP, UT Chandigarh, Saini himself had a truly providential escape, though the bullet-proof Ambassador in which he was seated was blown high into the air and reduced to rubble. No fake assassination attempt this, for sure, and no evidence planted by the police; but Mr. Justice \'X\' remained completely unmoved.
The judicial heart bled instead for two \'\'proclaimed offenders\'\' suspected of involvement in the bomb blast, one of them later apprehended, tried and acquitted and the other allegedly eliminated by the police under Saini\'s orders. Happily affirming the acquittal in appeal, and having disposed of the appeal, Mr. Justice \'X\' proceeded to entertain applications from both of them with a view to acting against Saini.
No less striking than this inverted value system where victim stood suddenly transposed as accused is Mr. Justice X\'s defiance of judicial discipline (entertaining applications in violation of the roster fixed by the Chief Justice) and the discipline of the criminal law, which renders a court functus officio once it has finally decided a case or appeal (Section 362, CrPC). On both these counts as well, the Supreme Court holds sharply against Mr. Justice X. \'\'The entire judicial process appears to have been drowned to achieve a motivated result which we are unable to approve of.\'\'
Whether Mr. Justice \'X\' or anybody else, judicial misconduct such as this must never be repeated.
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BY Advocate Anupam Gupta (COURTESY:AAJ SMAAJ, Dec.13,2011) (The views expressed in the article are the own views of writer),
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