Musings on the Supreme Court-IV Narasimhan Vijayaraghavan

Musings on the Supreme Court-IV
Narasimhan Vijayaraghavan

To conclude what Supreme Court said on Kasi,

“The said decisions, therefore, cannot be thrown out for any purpose whatsoever; more so when both of them if applied collectively lead to a contrary decision proposed by the majority. Learned Single Judge did not follow the judicial discipline while taking a contrary and diagonally opposite view to one which have been taken by another learned Single Judge in Settu versus The State (supra). The contrary view taken by learned Single Judge in the impugned judgment is not only erroneous but also sends wrong signals to the State and the prosecution emboldening them to act in breach of liberty of a person.”

We may further notice that learned Single Judge in the impugned judgment had not only breached the judicial discipline but has also referred to an observation made by learned Single Judge in Settu versus The State as uncharitable. All Courts including the High Courts and the Supreme Court have to follow a principle of Comity of Courts. A Bench whether coordinate or Larger, has to refrain from making any uncharitable observation on a decision even though delivered by a Bench of a lesser coram. A Bench sitting in a Larger coram may be right in overturning a judgment on a question of law, which jurisdiction a Judge sitting in a coordinate Bench does not have. In any case, a Judge sitting in a coordinate Bench or a Larger Bench has no business to make any adverse comment or uncharitable remark on any other judgment. We strongly disapprove the course adopted by the learned Single Judge in the impugned judgment.” Amen.

Time now to go visiting Justice Mulla, a famous Judge of incredible stature.
Settu-Kasi is of recent origin-19thJune, 2020. We are in the midst of a huge controversy relating to alleged custodial killing of a father-son duo. Police administration has not been in the best of books of the ordinary people. Lord Denning, it was who said, “Never have a Bobby (Scotland Yard) for a friend or a foe”. There was a trust deficit in the appreciation of credibility of the Police force. It has been no different, over the years. The Supreme Court itself has come down heavily on the biases and prejudices and overbearing attitude of the Police. Prakash Singh case and a series of orders are gathering dust with no reforms coming into being. Justice V S Malimath Committee report and Law Commission reports have elicited no response from either the State or Central Governments. Excessive force being used by police is not unheard of, the world over. Democracies are not immune to such powerful exhibitions.

Lucknow bench of the Allahabad High Court

There is a classic decision dt.15th March, 1963- concerning a very famous Judge, of near similar genre as Settu-Kasi. On Oct, 23rd, 1961 Justice Mulla, Allahabad High Court, Lucknow Bench, in the course of an order setting aside a conviction by the court below, passed strictures against the police official concerned. He did not stop there. Equipped with “his personal knowledge’ as the Allahabad Government alleged, he tore into the Police force. Why tamper with the original version as reported in the Supreme Court decision. After disposing of the appeal- Justice Mulla could not restrain himself.

“I issued the notice because I want to clean the public administration as for as possible but an individual’s efforts cannot go very far. If I had felt that with my lone efforts I could have cleaned this augean stable, which is the police force, I would not have hesitated to wage this war single-handed. I am on the verge of retirement and taking such steps for two months or three months more would not make any difference to the constitution and the character of the police force…… Somehow the police force in general, barring few exceptions, seems to have come to the conclusion that crime cannot be investigated and security cannot be preserved by following the law and this can only be achieved by breaking or circumventing the law. At least the traditions of a hundred years indicate that this is what they believe. If this belief is not rooted out of their minds, there is hardly any chance of improvement………… I say it with all sense of responsibility that there is not a single lawless group in the whole of the country. whose record of crime comes anywhere near the record of that organised unit which is known as the Indian Police Force. If the Police Force must be manned by officers like MohmmadNaim then it is better that we tear up our Constitution, forget all about democracy and the rights of citizens and change the meaning of law and other terms not only in our penal enactments but also in our dictionaries. It is for these reasons that I am accepting this apology and not filing any complaint against MohmmadNaim. Where every fish barring perhaps a few stinks, it is idle to pick out one or two and say that it stinks. 1, therefore, discharge the notice issued against Shri MohmmadNaim.”

Walter Gadson the 15year old boy facing the Bull Dog from Bull O’Conorin Birmingham, USA- during Maritin Luther King Civil Rights Protest –the famous AP News photograph-May 3, 1963
Peeved with these ‘sweeping’ remarks the Allahabad State administration preferred an appeal seeking to ‘expunge’ these remarks as not justified. Cautiously, the appellant did not question the motives of the learned judge. They only complained that the ‘remarks’ were unnecessary for the decision. They were too ‘sweeping’ and against the entire Police administration. Such remarks may impact the morale of the officers.

‘Justice Mulla was no ordinary judge. He was a giant. He was known for erudition, honesty, integrity and judicial discipline too’ as a commentator put it. But it was experience in interacting with the police as a commoner, human being and as a successful practitioner and above all as a Judge from the bench, which propelled him to say what he said. He was pained and anguished. Justice Mulla may have been a heavyweight. But he was a human being with failings as Justice Cardozo famously said. That is where the “restraint in the use of words matters, more so, from the Bench’ as another heavyweight Justice V R Krishna Iyer said.

A constitution bench of the Supreme Court, 47 years ago thought it fit to remind the judges of the constitutional courts that they would do well to exercise ‘restraint’. Note the words of the apex court. They did not question the intentions of the learned judge. They only felt that the remarks were not necessary. While the top court understood the anguish and agony of the learned judge, they felt that such ‘sweeping’ remarks were avoidable. A classic case which teaches a thing or two for those in positions where they can make a difference with their language. Words matter. Language is important. Judicial discipline even more. And at all levels for the commoner on the road to feel confident and the practitioner to advise with certainty. Contextually read how the…..
(Author is practising advocate in the Madras High Court)

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