JUDICIAL PERFIDIES-22

Let me begin this critique by quoting from a report of 23 Sep, 2022 - ‘Kerala High Court
initiates suo motu case against PFI bandh in Kerala’ (https://www.mid-day.com/news/india-
news/article/kerala-high-court-initiates-suo-motu-case-against-pfi-bandh-in-kerala-
23247140 :
Kerala High Court on Friday initiated a suo motu case against Popular Front of India (PFI)
leaders who called for a strike in the state against the arrest of its members by the
National Investigation Agency.
Notably, as per a Kerala HC order on January 7, 2019, nobody can call for a bandh in the
state without prior notice of seven days.
According to the police, stone-pelting incidents were reported at various places in the
state.
Two police officers were attacked earlier today by the hartal supporters at Pallimukku in
the Kollam district.
The first issue that comes to mind is the preposterousness of somebody deciding that a
bandh can be enforced on the public at large with 7 days notice. Where is the rationale,
forget about sense of justice, in someone bloodying your nose with 7 days notice? Isn’t it
the most fundamental principle of jurisprudence that your liberty ends where my nose
begins? The right to protest is certainly a safety valve for aggrieved persons and almost a
fundamental right in a democracy. But how can that extend to violating somebody else’s
equally fundamental right not to protest?
I have mentioned in an earlier part of this series how the same court had declared bandhs
illegal long back and the apex court had upheld that decision. Thereafter, the same means
of protest has continued to be perpetrated by calling it hartal.
My effort to get copies of the two court orders, to find out if it was the term bandh that was
held illegal or the activities that went with it, was also thwarted by the Public Information
Officer of the High Court who denied it claiming that it was part of judicial proceedings and
it was exempted from disclosure as per the High Court Rules on the RTI Act.
Even the extract of the report above, exposes the confusion prevailing about the brazen
violation of the fundamental right of the majority of citizens that follows a call for hartal,
aka bandhs. That it disrupts normal lives and causes untold misery to the general public
goes without saying. What about destruction of property, public as well as private? And
when police personnel are injured in the violence unleashed by the mobs, the plight of
helpless individuals can well be imagined.
There was another report that the Kerala State Road Transport Corporation has filed for
damages to their buses to the tune of Rs 5 crores. But the poor police personnel? Will they
be able to seek compensation too? Or is it just a part of their job description?
That brings me to another preposterous decision by the apex court- of registering FIRs in
cases of civilian deaths in counter insurgency areas.
Jay Bhattacharjee, working in the areas of Corporate Law and Finance, has written about
this in his widely read book, Resurgent Bharat and Other Issues- An anthology of Essays. In
the essay ‘Our armed forces severely handicapped when fighting terror’, on the decision of
the apex court in criminal writ petition 129/2012, he has written that the SC virtually made
our armed forces run a one legged race and compelled our military to fight the enemy with
one hand tied behind its back.
Let me take a detour here to place some relevant facts on record.
This is what K R Naryanan, former President, had written, long before he occupied that
highest office of the nation, in an article Fragile Chimera, published in the Illustrated Weekly
of India (6-12/09/1987):
A historian once remarked- few men are so disinterested as to prefer to live in discomfort
under a government that they hold to be right rather than in comfort under one which
they hold to be wrong. In politics and administration it is not enough to be right. It is
imperative that the goods are delivered to the people, there is law and order and a
general sense of comfort and above all a common sense of unity in the country and
society.
We all know that the majority of the people want to live a comfortable, peaceful and happy
life. Taking to violent means of protest is the last step that any ordinary human being would
think of. But to reach that level he must have face gross disappointments with all the means
available for redressal of his grievances, the ultimate being the judiciary. So, insurgencies
are a sign of the total failure of the government as a whole but specifically of the judiciary,
ultimately. It is at this stage that the government depends on its sword arm for succor.
The military, obviously, lives on the ethos: do or die. They are fed on the diet that there are
no runners up in war. Though politically it may not be correct to refer to counter-insurgency
operations as war, the fact is it is worse than war for the soldiers. In war, at least there is a
known enemy. In counter insurgency operations the enemy is not distinctly identified.
There have been many cases reported of soldiers who, while leaving buildings/ areas after
cordon and search operations, have been shot in their back by women whom they had
refused to identify as insurgents or collaborators of insurgents.
There is no denying that there are bound to be mistakes when troops operate in insurgency
affected areas, with their own lives on the line. And that is why the Armed Force Special
Powers Act is invoked when army is launched in such operations. This, and only this, is the
armour that protects from witch hunting later. And it is this armour that was rendered
useless by the apex court bench of Madan Lokur and U U Lalit in Jul 2016.
As far as mistakes are concerned, given the army’s obsession with its image, more often
than not, even minor mistakes are taken seriously and those involved punished in
exemplary manner. Case in point: the Sukhna land scam. A Lt General, then Military
Secretary, was dismissed from service for showing undue interest in transferring land near a
military establishment to a private party to establish an educational institution.
Again, just for the records, the babus, playing around with files, have a law that is invoked
quite often and without much ado- obstructing a public servant in the discharge of his
functions.
Section 186 of the Indian Penal Code reads as: Whoever voluntarily obstructs any public
servant in the discharge of his public functions, shall be punished with imprisonment of
either description for a term which may extend to three months, or with fine which may
extend to five hundred rupees, or with both.
And we have the preposterous, undemocratic Contempt of Court Act, at the disposal of our
judges, who have opposing parties presenting some facts, some laws and some case laws
leaving the judge with all the freedom to decide in favour of any one of them, again without
much ado.
This brings me to the report ‘Retired CJIs, SC judges to get lifetime domestic help, chauffeur’
at https://www.freepressjournal.in/india/retired-cjis-sc-judges-to-get-lifetime-domestic-
help-chauffeur. As per this report:
➢ A Chief Justice of India will now get a domestic help, a chauffeur, and a secretarial
assistant for lifetime from the day he or she demits office.
 ➢ A retired CJI will also be entitled to a security cover round-the-clock at their
residence along with a 24X7 personal security guard for five years from the date of
retirement.
➢ If a retired CJI or a retired judge of the top court is already provided a 'higher grade'
security on the basis of threat perception, 'the higher grade security already
provided shall continue'
➢ The benefits of the amended rules will now be extended to all living former CJIs and
retired Supreme Court judges.
➢ "The post-retirement benefits under this rule shall be admissible to the retired Chief
Justice (of India) or the retired Judge (of SC) if no such facilities are availed from any
High Court or from any other government body where the retired Chief Justice or a
retired Judge has taken up any assignment after retirement,"
Just look at the wanton abuse of authority or can it be dismissed as mere placating? Though
in this case it cannot be directly blamed on the judges, there was a report, dated 07 August
2021 titled ‘Chief Justice of India N V Ramana seeks special force for protecting judges’
(https://economictimes.indiatimes.com/news/india/chief-justice-of-india-n-v-ramana-
seeks-special-force-for-protecting-judges/articleshow/85119242.cms). But one should
certainly acknowledge the glaring unfairness of soldiers deployed in counter insurgency
areas being subjected to prosecution when those sitting in judgment in air conditioned
rooms, are being provided security cover not only while in service but also after retirement.
Coming back to Jay Bhattacharjee, he has written: Without apologizing for mixing
metaphors, this writer would say that the judges poured vinegar on raw wounds and threw
the ball back to the Union Government’s court, saying that the latter should take steps to
protect the legitimate concerns of soldiers and this was not the job of the court.
Meanwhile there has been an interesting development. The 2009 criminal contempt of case
against Adv Prashant Bhushan has been dismissed. The case involved Prashant Bhushan
alleging that 8 Chief Justices of India were corrupt, in an interview with Tehelka and which
was published by Tehelka. The editor was also facing contempt charges. 12 years after
initiation of proceeding by a three member bench, it was dismissed on 30 Aug 2022 by
another three member judge. The reason as reported at https://www.livelaw.in/top-
stories/supreme-court-closes-2009-contempt-case-against-prashant-bhushan-tarun-tejpal-
207860 is : "In view of the explanation/apologies made by the contemnors, we don't deem
it necessary to continue matter". Senior Advocate Kamini Jaiswal appearing for Bhushan
submitted that he has given an explanation for his statement. Senior Advocate Kapil Sibal,
appearing for Tarun Tejpal, the editor of Tehelka Magazine, submitted that he has
apologized. As per the Hindu (https://www.thehindu.com/news/national/supreme-court-
drops-contempt-case-against-prashant-bhushan-for-corruption-remarks-in-
tehelka/article65828997.ece) it had brought to the fore several cardinal issues, including the
right to criticise the judiciary in a public forum and whether a person who expressed an
bonafide opinion about judicial corruption was obliged to prove it or whether it was enough
to show that he bonafide had held that opinion.
Just for the records, the copy of the order could not be accessed at
https://main.sci.gov.in/judgments.

P M Ravindran/ raviforjustice@gmail.com 29 Sep 2022