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Recent Developments in Law*
by Anil Nauriya, Rapporteur
Cite as : (1987) 4 SCC (Jour) 17
I
Mohd. Mumtaz v. Nandini Satpathy, (1987) 1 SCC 269 & 279 Sheonandan Paswan v. State of Bihar, (1987) 1 SCC 288
Prof Alice Jacob, Director (Admn) Indian Law Institute referred to the issues that these twin cases had raised questions in the realm of administration of criminal justice vis-a-vis high political personages. These were:
(i) Under what circumstances can a prosecution be withdrawn? In other words, when can the State "sacrifice a pending case for a wider benefit"?
(ii) What is the degree of autonomy conferred on the Public Prosecutor in the process of withdrawal?
(iii) The concept of furtherance of public justice in the withdrawal process.
Initiating the discussion, Mr Rajinder Sachar, Senior Advocate, examined the conventional grounds on which withdrawal of prosecutions are ordinarily made and suggested that the public policy principle on which Bhagwati, C.J. laid great emphasis has always been recognized in the law. However, he felt that despite acceptance of sound principles, in practice courts have always faltered in applying them. The cases under consideration were no exception to this unhappy State of affairs. He wondered as to how far courts can be an effective check against abuse of power by the executive government. The law is no better even after these judgments were pronounced.
Mr G.L. Sanghi, Senior Advocate stressed a popular impression in public mind that in this area of criminal justice there is admittedly a gulf between theory and practice. It is fine to declare that the power under Section 321, CrPC is to be exercised by the Public Prosecutor independently and by the Magistrate judiciously to promote public justice and to avoid its misuse. But, invariably when important political figures are involved, the principles are disregarded. Even judges of the higher courts are carried away by technicalities and refuse to make independent judgments on facts which stare in the face. Paswan case can well pass the factual test under which the Court could have refused withdrawal. The major issue therefore is whether Courts can stay away from interfering on the mere plea of "no ground" by the prosecution, particularly when the materials on record tell a different story. He submitted that such cases are not to be the subject of withdrawal under Section 321. He argued that in practice where there is really no material and when political personages are not involved, prosecution do not seek withdrawals and ordinary citizens are forced to approach the High Courts under Article 226 or Section 482, CrPC for quashing the proceedings. He regretted that the majority judgment did not appreciate the real issue and let the principles remain clouded.
Mr Manoj Swarup, Advocate expressed surprise at the views of Khalid, J. To him the issue has assumed critical importance today because of the political environment. He wondered how the Public Prosecutor and the Court can effectively prevent abuse of power under Section 321 if the State is not inclined to act justly. After all the responsibility is shared between the three functionaries, namely, the Government, the Public Prosecutor and the Court. Mr Swarup pointed out that in his knowledge there is no case where the plea for withdrawal was negatived by the Court and the prosecution continued successfully. In this regard, he pointed out that the minority view of Tulzapurkar, J. was not effectively applied to uphold the judicial authority in this regard. According to him, while the law remained the same, there has been a shift in emphasis in that the power was given to the Public Prosecutor in earlier cases and now it is with the Court.
Mr Soli J. Sorabjee, Senior Advocate felt that the judgment of Justice Venkataramiah was the weakest as it appeared to decide on expediency and "let things rest where they are" attitude. The judgment of Khalid, J. is equally unacceptable insofar as he found the State "the complete master of criminal prosecutions". The learned Judge conveniently ignored the monitoring and supervisory role of courts. If this view were to be adopted, Mr Sorabjee argued, then the faith of the common man in administration of justice will be impaired.
Agreeing with the minority view of Bhagwati, C.J., Mr Sorabjee felt that the fact that Mr Mishra himself presided over the Cabinet meeting in which the decision to withdraw the case was made should have influenced every Judge in the interest of public justice and fairness.
Mr Jaya Narayan, Senior Advocate who was a counsel in the Bihar case also shared this concern on the misapplication of principles to the detriment of public justice. According to him, it is important to appreciate the stage at which the withdrawal decision is made as it would determine the relative role of the Court in weighing the scope of public justice. Pointing out the gravity of an observation in the judgment of Venkataramiah, J. to the effect that Section 321 cannot be construed in the light of administrative law, Mr Jaya Narayan wondered whether elementary principles of fairness can be dispensed with in withdrawal decisions.
Intervening in the discussions which followed, Mr Harish Chandra, Reader in Law emphasized the jurisprudential foundations of criminal prosecutions which made it imperative, as he put it, to recognize the exclusive and supreme power of the State to determine the status of criminal prosecutions. Mr Sasidharan, Advocate totally disagreed with the majority view in the judgments under review and questioned the wisdom of the judiciary renouncing its authority to the exclusive domain of the executive. Mr B.B. Pande, Reader in Law cautioned restraint against too much concentration on judiciary for correcting every ill of the system.
Professor Madhava Menon, Vice-President of the United Lawyers' Association, winding up the discussion said that these are cases in which law and politics are intertwined.
II
E.S. Reddi v. Chief Secretary, Govt. of A.P., (1987) 3 SCC 258
RIGHTS AND DUTIES OF LAWYERS
Certain passages in E.S. Reddi case decided on May 1, 1987 are concerned with duties of Counsel, more specifically "Senior Counsel", practising in the Supreme Court. The Indian Law Institute in association with the United Lawyers' Association organised a panel discussion on the subject on September 11, 1987. Participants spoke freely without rancour and an attempt was made to keep the focus on issues rather than on personalities. Prof Upendra Baxi, who was in the chair during the earlier part of the discussion, made brief introductory remarks. Prof Baxi referred to his article on "The Supreme Court and Senior Counsel at Crossroads" submitted for publication in Supreme Court Cases** According to him the case presented no compelling issues either way so far as natural justice was concerned. He invited attention instead to the considerations that are brought to bear on "conferring silk", that is on treating certain lawyers as Senior Advocates, and on the question why and whether "silk" ought to be conferred at all. This issue was, however, not taken up by subsequent speakers. The discussion concentrated instead on issues that arose more immediately from the case.
The matter arose out of alleged irregularities by, among others, certain officers belonging to the Andhra Pradesh cadres of the Indian Administrative Service.
Mr S.N. Kacker, former President of the Supreme Court Bar Association, who had appeared in the case on behalf of the petitioner, E.S. Reddi, and was present in court during all arguments, made the first comprehensive reference to the case. He said at the outset that he was in fullest agreement so far as the advice given in the case to the "Senior Advocate fraternity" was concerned and was in agreement also that no Senior Advocate or Advocate, should "identify" too closely with his client. According to Mr Kacker, the record showed that the petitioner E.S. Reddi was, on the face of it, culpable in a lesser degree than two other IAS officers (who were not clients of Mr Kacker) and who had, unlike the petitioner, not been suspended by the State Government. This was, he said, in violation of Article 14 of the Constitution and the Supreme Court gave an option to the Government to remove the disparity. The case was adjourned to enable the Government Counsel to convey the Court's reaction to the State Government and also to enable him to seek appropriate directions. The Court made it clear that a stage may come when the suspension of E.S. Reddi may have to be revoked. In its order dated May 5, 1986 the Supreme Court said, inter alia,: "We are afraid if the State Government does not pass any order placing the other officers under suspension it may become necessary for the court to revoke the suspension of the petitioner at the next hearing." (See judgment SCC p. 261). There was a further adjournment and as a result the other two officers, who were not directly before the court, were placed under suspension pursuant to a specific direction to suspend them. These officers then made applications to the Court pointing out that they had not been heard. Mr Kacker said it is not clear whether the application made on behalf of one of these officers, namely, T.V. Choudhary, was settled by the Senior Counsel appearing on his behalf. According to Mr Kacker, if the application had in fact been settled by the Senior Counsel, the Court was justified in taking the view that the language of the application should have been toned down. Mr Kacker accepted that much could be said for the proposition that the two officers who were not before the Court, but were adversely affected by the Court's order, should have been heard. He felt that two views were certainly possible and while the Court had an obligation to do its constitutional duty, there was no denying that there could be a feeling of genuine hurt in the minds of persons who felt that they had not been heard.
The Senior Advocate appearing on behalf of T.V. Choudhary, must also, according to Mr Kacker, have suffered a conflict as all Counsel often do. There was, on the one hand, the duty towards a client and, on the other, a responsibility towards the Court.
Mr Kacker was emphatic that there was no justification for any reflection that may have been cast on the Senior Advocate concerned. According to Mr Kacker, the Senior Counsel was only doing his duty and did it most faithfully, diligently and in an upright manner. While reiterating his highest regard for the Court and also for what is said in the judgment at the level of principle, Mr Kacker felt that courts cannot afford to be "too touchy" and had fallen into a slight error. Though he was clear that the language used in T.V. Choudhary's application should have been toned down, he observed also that the remarks in the judgment directed at the Senior Counsel should not have been made.
The next speaker was Mr M.C. Bhandare, President of the Supreme Court Bar Association. Declaring that there was not a single occasion when anyone could have held him personally "guilty" of being "disrespectful" to the Court, he observed further that if he was going to say anything on the occasion it was in the spirit of a "child belonging to this Court".
Mr Bhandare sought to know whether any court should pass an order which affects parties that are not before the Court. According to him, an order passed in breach of the principles of natural justice, even if it be by the Supreme Court, was a nullity. Mr Bhandare expressed the hope that the present case will be the "first and last" such instance. He pleaded for a separate forum for dealing with areas of conflict between Judges and Advocates. He said he had always spoken up for the Judiciary because Judges cannot speak on their own behalf. But now, he maintained, there was no defence left for advocates either. The remarks in the judgment will affect the independence of lawyers in an adverse manner and will also interfere in the discharge of their duties towards clients. When you wish to deprecate certain conduct, he said, the language should be one of "sobriety, moderation and reserve". He went on to observe that the Court had no power to levy a "fine" upon the applicant, T.V. Choudhary, as had been done in the present case. In any event, he declared, this power was not meant to be utilised for the purpose for which the Court had utilised it.
Mr Gobinda Mukhoty, who rose to speak next, said that he was in full agreement with the preceding speaker about the comments directed at Senior Counsel in the judgment. He emphasized that mutual respect was necessary between Judges and lawyers who belonged essentially to the same profession. Mr Mukhoty felt that discipline was required on a wider front. He said it was unfortunate that Supreme Court Judges were, for example, dismissing matters in limine and without giving reasons when they themselves said that other courts ought to make speaking orders. Mr Mukhoty referred to the fact that almost everyday lawyers were not being allowed to complete even their sentences before the next matter was called. This may be, he conceded, because of pressure resulting from a shortage of Judges. But how was one to explain that in some matters Judges were arguing more than counsel?
Mr Mukhoty called for restraint in expression of judicial displeasure even in matters where contempt may conceivably be involved, pointing out, after Lord Denning, that the court may otherwise have to sit every day as a contempt court.
Mr Mukhoty maintained that Counsel had a 'total duty' towards their clients. The present judgment according to him served to put blinkers before "some of us" who might feel that perhaps they too may incur the "wrath" of the Court. "I hope and trust" he said, using a favourite phrase of Chief Justice Bhagwati, that Judges will not invite anything that creates discord between the Bench and the Bar.
Mr Soli J. Sorabjee started by saying that the present occasion was not one of confrontation and that both the Bench and the Bar were partners "in the quest for justice". He felt that the Supreme Court was right when it called for a greater sense of detachment. He conceded that there were occasions when Senior Counsel sought to "coerce, compel and browbeat" Judges and agreed that these attempts should be nipped in the bud.
But, he pointed out, approaches may differ and emphasis may vary. Sometimes a Counsel may put passion into his advocacy and the line between vehemence and passion was thin. Judges should make allowances, he pleaded, "just as we make allowances" taking account of the pressure under which they work, for their haste and "sometimes their unwarranted observations". In the present case, he felt the conduct of Senior Counsel had been criticised "uncharitably", even though, as Mr Sorabjee was quick to point out, the Judge concerned was kind hearted and there could be no question of his "bearing any grudge".
The major point that Mr Sorabjee made was that there did not appear to be anything offensive in the so-called offending part of T.V. Choudhary's application which had been quoted in the judgment see (1987) 3 SCC 258 at p. 263. According to Mr Sorabjee the passages quoted contained nothing that was not being said every day in Review Petitions filed in the Court. In the second paragraph the word "illegal" could perhaps have been replaced with "incorrect", but beyond this Mr Sorabjee found nothing objectionable in the passages. The Court had overreacted, he said, and if these passages were really objectionable, then all it means is that "you don't want an independent Bar". Mr Sorabjee, however, suggested that this issue should not be blown out of proportion, that the Bar itself should guard against over-reaction and that the incident was best forgotten.
Mr M.K. Ramamurthi fully endorsed the observation of the preceding speaker and said that on an objective study of the passage concerned in the application he can find nothing fundamentally wrong with it. He wondered whether there was a background of which "we are not aware". He said that it appeared that Counsel had been condemned for presenting a point of view. The whole episode was, according to Mr Ramamurthi, particularly unfortunate because while the Judge concerned was the "mildest I have known", the Counsel himself was most upright and meticulous. He reiterated the need for solidarity between the Bench and the Bar.
Prof N.R. Madhava Menon sought to examine the controversy in the light of professional etiquette. He felt that there was nothing objectionable even in the use of the term "illegal". Anyone can see, he said, that the reaction of the Court was uncalled for. Referring to the earlier observations of Mr Kacker, Prof Menon remarked that Mr Kacker was "party" (on behalf of E.S. Reddi, the petitioner) to getting an order from the Supreme Court that was violative of the principle of audi alteram partem and, as such, of natural justice. Prof Menon joined issue with Mr Kacker on the latter's general support for the reasoning set out in the judgment in support of an order passed "behind the back" of an officer: did Mr Kacker not share responsibility with the court for what had happened? Prof Menon wondered whether something else had happened in the Court, particularly in the light of the remark in the judgment that T.V. Choudhary's Counsel argued the case with "undue vehemence". Prof Menon pointed out that in the very nature of their functions, a sense of detachment is a value that Counsel share in a lesser degree than Judges. He referred to the Bar Council Rules to emphasize that it was the duty of a counsel to function without regard to unpleasant consequences to himself. He must not be servile while at the same time not allow himself to become a mere mouthpiece of the client. In this case, he maintained, there was no evidence of any intemperate language having been used either by the Senior Counsel concerned or by his client. "Detachment" he said could not be laid down as a general principle. Else, how was one to think of public interest litigation which demands a good deal of motivation, involvement and a sense of outrage against injustice? Prof Menon was clear in his mind that the judgment required reconsideration.
Mr Jitendra Sharma saw no conflict between the Bench and the Bar. He said this judgment had been picked out for discussion because it was unusual. He agreed with the earlier speakers that there was nothing objectionable in the passage quoted in the judgment. He said that in the course of arguments advocates sometimes do use strong language but it does not ordinarily invite such a reaction. Mr Sharma took serious objection to the reference in the judgment to "undue vehemence and unwarranted passion". He said a sense of loyalty to the client and occasionally also commitment to a cause often led to passion and vehemence. The line was to be drawn only at the point where the passion or the vehemence was undignified or not respectful. "Should a counsel be castigated for showing passion?" he asked. Mr Sharma felt that the matter should not be treated as one between a particular counsel or a particular Judge. The honourable Judge concerned was one of the most polite and friendly Judges in the court, he frankly agreed. But did not the remarks reflect an attempt to have a docile Bar, he asked. According to him new canons of judicial ethics were required and appropriate limits need to be set out.
Dr S.N. Singh, Reader in the Faculty of Law, Delhi University, said he had been surprised by the judgment. In the past, if administrative authorities violated the principles of natural justice, he could assert with confidence that courts were there to redress the injury. Now he was less certain. According to him, if the court was convinced that Article 14 had been violated, it should have quashed the suspension order in the case of the petitioner, E.S. Reddi. But to say that others should also be suspended was, he maintained, not in accordance with the rule of law. In any event, when there was no prayer in the petition seeking that other persons also be suspended, how could the court go beyond the petition, he inquired. And even if the Court did want the other two officers to be suspended, surely, some notice should have been given to them. He said this severely prejudiced the other two officers because once the Supreme Court had made such an order, no State Government would dare reconsider their case. According to Dr Singh, the conduct of Senior Counsel, which had been deprecated in the judgment, was in no way objectionable.
In Dr Singh's view, the position successively taken by the Supreme Court that the judiciary did not form part of 'State' within the meaning of Article 12, requires reconsideration. This would enable redress in cases where an order by the Court was itself violative of fundamental rights.
In response to a question from a member of the audience, Prof Alice Jacob who was now in the Chair, pointed out that the discussion was part of the "March of the Law" Series organised jointly by the Institute and the Association at regular intervals. Several judgments of special significance had been discussed in this manner in the past. As the present case threw up a number of challenging issues, it was picked up for discussion. The choice was made after considerable deliberation, she said. Another member of the audience pointed out that remarks against Counsel, when made in the judgment, become part of the permanent record and as such were not fair. There was a shared feeling among those present that there ought to be some alternative method of dealing with such misunderstandings or situations.
The discussion, though interesting and even fruitful, could perhaps have been more enlightening if panelists had made reference to precedents or to how comparable situations in India and elsewhere were dealt with in the past. It is difficult to say whether there can at all be a satisfactory answer to the call by the President of the Supreme Court Bar Association for an appropriate forum where areas of misunderstanding between the Bench and the Bar could be identified and, if possible, cleared. But a necessary condition for the coming into being of such a forum is surely a legal community that is freely critical and yet also self-critical. A sampling of such a community was available at the panel discussion.
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