Utopian justice should not turn dystopian

Justice is a utopian concept guaranteed by Article 32 of the Constitution—often called the soul of all fundamental rights.

When there is no alternative remedy to an aggrieved citizen, he can file a petition under Article 32 to quash false FIRs or seek another remedy against some perceived injustice.

But when litigants have used Article 32 in the Supreme Court, at least some of them have been lambasted by the court—perhaps for wasting precious judicial time.

Whatever may be the reason, there is an emerging trend of levying costs on some petitioners—converting justice into perceived dystopia for them. Whether the levying of costs was justified or not is a debatable issue. Deterring petitioners from using the extraordinary remedy of Article 32 (or articles 226 and 227) turns it into a chimera for them. Unless of course, the petitions are clearly frivolous.

The most recent example is of two petitioners who sought a direction from the Supreme Court that remnants of ancient monuments be preserved. A three-judge bench led by Justice Arun Mishra threatened to order a CBI probe against the petitioners.

When the senior advocate Menaka Guruswamy sought to explain why her client had filed the petition: "With respect my lords, we are seeking these ancient artefacts be handed over to the ASI...” Justice Mishra riposted, "What respect? You are creating nonsense! (sic) How dare you file such frivolous petitions? You are trying to block the implementation of our November 9 verdict."

On November 9, a five-judge bench of the apex court was unanimous that the land at Ayodhya be handed to a trust to facilitate the building of a magnificent Ram temple because millions of Hindus believed the exact spot was the birthplace of Lord Ram.

As a consequence, the Justice Arun Mishra-led three-judge bench imposed costs of Rs 1 lakh separately on both petitioners.

In a separate incident, a full court meeting of the Gujarat High Court on July 18 stripped the president of the Gujarat High Court Advocates' Association, Yatin Oza, of his "senior" designation given to him on October 25, 1999 because of his unwarranted allegations against the judges during a Facebook press conference. Oza had also accused the high court registry of being partial to certain lobbies while listing petitions. This is probably the first time a high court has stripped a lawyer of his much-coveted "senior" gown by reviewing its own decision taken over 20 years back.

There is no doubt that advocate Oza did use very strong language against the Gujarat High Court registry. But by an ironic quirk of fate, advocate Reepak Kansal was fined a token Rs 100 for also making similar allegations against the Supreme Court registry. In his petition, Kansal had also asked that guidelines be framed for the Supreme Court registry to avoid alleged discrimination against ordinary lawyers. Kansal also alleged that a prominent TV anchor had his petition listed less than 24 hours after it was filed while his (Kansal's) petitions were not listed despite being filed earlier with alleged minor objections being pointed out.

Again, a Justice Arun Mishra-led bench took umbrage at Kansal's allegations by stating the TV anchor's petition raised a vital issue of press freedom. "The registry is understaffed during this pandemic but nonetheless works overtime to list petitions before the courts. How can you make such baseless allegations?" asked Justice Arun Mishra.

The issue has taken a comical turn with over 150 lawyers expressing solidarity with advocate Reepak Kansal to pay the 100-rupee fine with 50 paise coins. This will ensure the registry will have to collect a very heavy bag of jingling coins in compliance of the court order. Lawyers find ways to subtly get their point across when bluntness hurts.

Reacting to the Kansal episode, the president of the Supreme Court Bar Association, Dushyant Dave, said: "Deeply disappointing....misuse of discretionary powers to list matters (by the Supreme Court registry) is writ large. (Some) Matters that deserve to get listed but are not high profile are never listed on time..."

Dave, like Justice Arun Mishra, has got into several controversies. He criticised Justice Arun Mishra for his effulgent praise of Prime Minister Narendra Modi at a thanksgiving vote on February 22 during a global conference of judges. Justice Mishra had declared the Prime Minister a "versatile genius who thought globally but acted locally." The judge's remarks drew flak not only from Dave but other retired judges who said these utterances from such a senior judge reflected poorly on independence of the judiciary.

Last December, Justice Arun Mishra, (who will retire on September 3) offered a hundred apologies with folded hands (dandavat) to lawyers for his strong and terse comments threatening contempt action against a senior advocate Gopal Sankaranarayan, after this and other issues were taken up by senior advocate Kapil Sibal and others because they alleged the judge's harsh words would demoralise young lawyers with potential.

On Wednesday, a Justice Arun Mishra-led three-judge bench issued advocate Prashant Bhushan yet another contempt notice for a tweet alleging the role played by the Supreme Court and the last four CJIs in the destruction of democracy during the last few years. He had also tweeted a photo of CJI Sharad Bobde allegedly astride a Harley-Davidson motorbike without a facemask during the lockdown.

The truth was that CJI Sharad Bobde only sat on the Harley Davidson in his Nagpur hometown but never rode it. Though a magazine pointed out he looked like a rockstar, CJI Bobde never flouted any law as Prashant Bhushan wrongly tweeted.

CJI Sharad Bobde heads the justice delivery system of the state which also comprises Justice Arun Mishra with lawyers like Yatin Oza, Dushyant Dave and Reepak Kansal who inject the staid and prosaic court rooms with vivacity and humour.

The writer holds a Ph.D in Media Law and is a journalist-cum-lawyer of the Bombay High Court.

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