August 28 seems to have been a dark day for the judiciary. In the first case, on August 28, Justice Sarang Kotwal of the Bombay High Court is alleged to have asked Vernon Gonsalves why he kept a copy of “War and Peace” in his house.
Initially, there was confusion in the court as to whether the judge was referring to the international classic “War and Peace” by Leo Tolstoy or to another book, “War and Peace in Junglemahal.” The judge clarified he was asking Gonsalves why he kept the latter book in his house.
Vernon Gonsalves is accused in the 2018 Bhima-Koregaon riots under the draconian Unlawful Activities Prevention Act where jail is the rule and bail is the exception.
Justice Sarang Kotwal (who asked this alleged “bizarre” question) is the only engineer to have become a high court judge. His CV discloses a good academic record from the judge’s native Dhule in Maharashtra where perhaps, rural folk prefer Marathi authors to books such as War and Peace whether in Junglemahal or Russia.
Article 19 (1) (a) guarantees all citizens the right to write and express even distasteful opinions. So, there is nothing wrong in keeping contentious books in your home.
The judge’s question provoked Congress leader Jayram Ramesh to term the question as “bizarre” because every citizen is free to read what he wants, when he wants and where he wants.
A book is not as dangerous as a rifle or a bomb. And asking such questions can kill the intellect of the Gonsalves’ duo—Vernon, the avowed leftist and senior advocate Colin who shares the same surname and takes up such causes in the apex court. Hence, this question hints at the fact that venerable Justice Kotwal is not addicted to reading outside his domain.
Yet again on August 28, Patna high court Justice Rakesh Kumar’s stinging order ordering a dual probe by the CBI and a district judge of alleged corruption within the local civil court sparked off a row after a lower court granted retired IAS officer, K P Ramaiah bail in a corruption case.
Justice Kumar had earlier rejected his anticipatory bail. Justice Kumar made stinging remarks about corruption within the subordinate courts in Bihar.
Taking umbrage at this, a three-judge bench of the Patna high court divested the judge of judicial work after quashing his order. Justice Kumar and his chief justice A P Shahi met CJI Ranjan Gogoi, resulting in restoration of judicial work to him.
His crime? Justice Rakesh Kumar was supposed to see no evil, speak no evil and hear no evil within the lower judiciary. Justice Kumar is not a clone of Justice Markandey Katju who wrote of an allegedly corrupt high court judge which was confirmed despite his objections.
The full bench of the Patna high court headed by Chief Justice Shahi said, "A wrong order requires setting aside if it has travelled beyond the objective boundaries and has far-reaching consequences in setting a trend which no law recognizes.
Passing such an order has the inherent danger of creating uncertainty and a feeling that all things can be set right on exercise of authority by a judge even though he may not have legal power to do so.”
Elaborating, the three judges said, "(the order) is absolutely unsustainaible…..It suffers from a dual incompetence of exercise of administrative as well as judicial authority.
It should be kept in mind that the (right to) freedom of expression and the legal authority to express and adjudicate are entirely different concepts."
“This order does not refer to any provision of law, much less the Criminal Procedure Code or the High Court Rules, under which he could assume this authority.
The entire order nowhere speaks of any notice having been issued or any party having been heard. This, therefore, is a clear case of violation of principles of natural justice which is yet another reason for us to interfere with the order, “ the court added.
But judicial discipline dictates a lower court should respect the order of the high court denying an allegedly corrupt IAS officer anticipatory bail. Of course, after arrest, the order of anticipatory bail ceases to have effect. But still, the lower courts must respect a high court judge’s order.
Again on August 28, an activist learnt it was futile to protest against the elevation of Justice Indrajit Mahanty from the Bombay High Court as chief justice of the Rajasthan high court.
This activist, Jayanta Kumar Das, a former IAF airman, had complained to the apex court collegium that this judge had allegedly availed of a business loan to run a hotel in his own name at Cuttack in Orissa. The collegium held an in-house inquiry on July 5, 2018 but denied Das their findings even after repeated reminders.
After Justice Mahanty was shunted from the Orissa high court to the Bombay high court on October 29, 2018, “in the interest of better administration of justice”, Das was shocked to learn the collegium has now recommended on August 28, the same judge be elevated as chief justice of Rajasthan high court as he is the seniormost judge from the Orissa high court.
Perhaps Justice Mahanty’s seniority ensured “better administration of justice” would be served in Rajasthan but not in his native Orissa. This judge may even make it to the Supreme Court.
Olav Albuquerque holds a Ph.D in Media law and is a journalist-cum-lawyer of the Bombay high court.