A petitioner has sought the Madras high court’s directions over Justice K.S. Panicker Radhakrishnan’s ‘Man of the Year’ citation from PETA. But the petition is misconceived only several fronts.
In 2014, former Supreme Court judge K.S. Panicker Radhakrishnan was named Man of the Year by People for the Ethical Treatment of Animals (PETA) for heading the bench that passed the landmark judgment in favour of PETA India and the Animal Welfare Board of India banning Jallikattu.
Two years after the recognition, a two-judge bench of the Madras high court (Madurai bench) has issued a notice to Justice Radhakrishnan, while hearing a writ petition seeking directions to him to return the “Man of the Year award”, by declaring it unconstitutional.
The issue of notices by the high court bench of justices A. Selvam and P.Kalaiyarasan, after hearing the petitioner Salai Chakrapani, therefore, is ominous and calls for swift intervention from the Supreme Court.
Besides Justice Radhakrishan himself, the petition names the secretary to the president of India as the lead respondent, the Ministry of Law and Justice represented by its secretary and PETA as the other respondents.
The petition is totally misconceived for several reasons, and it is surprising that the high court bench did not dismiss it in limine.
On January 30, the Supreme Court bench of Justices Dipak Misra and R. Banumati, in Ms. Anindita v. Pranab Mukherjee, dismissed a PIL which had named President Pranab Mukherjee as the first respondent. The Supreme Court, relying on Rameshwar Prasad v Union of India, held that the president cannot be arrayed as a party to the litigation.
In Ms. Anindita, the petitioners had earlier failed to succeed in their special leave petitions and finding their writ petition totally vexatious, the bench debarred them from filing any kind of public interest litigation in any constitutional court in the country either under Article 226 or Article 32 of the constitution, without locus standi. A PIL’s unique feature is that the person filing it need not have suffered an injury themselves, but can do so on behalf of others, seeking relief from the courts.
The petitioner before the Madras high court, by naming the secretary to the president as the first respondent, cannot seek to achieve indirectly what the petitioner before the Supreme Court sought to do directly and was reprimanded by the court. It appears as though both the petitioner and the Madras high court bench, which issued notice in this case, were unaware of the Supreme Court’s January 30 order.
That apart, the issue of a notice to an ex-Supreme Court judge by a high court bench in connection with a judgment rendered by him is not only misconceived, but also unprecedented. Justice Radhakrishnan has understandably avoided any public comment on the issue of a notice to him by the high court.
The writ petition before the high court erroneously describes the Man of the Year citation in honour of Justice Radhakrishnan as an award. The citation, without any pecuniary element, cannot be called an award.
The judgment in Animal Welfare Board of India v A. Nagaraja, in which PETA was also a co-petitioner, was delivered by justices Radhakrishnan and Pinaki Chandra Ghose on May 7, 2014. PETA’s recognition of Justice Radhakrishnan was announced in December 2014. When the case was heard and before the judgment was delivered, neither the bench nor PETA were aware of the possibility that PETA could bestow this honour on the presiding judge if the judgment went in its favour. Justice Radhakrishnan retired from the Supreme Court a week after delivering the judgment in A. Nagaraja.
Post-retirement conduct of a judge
The petition before the high court, frivolous though it may appear, raises crucial questions about the post-retirement conduct of a judge in India. In the past, judges of the Supreme Court, including a chief justice, have sought political offices, such as president, governor, or member of parliament, after retirement. Non-political positions like the chairperson or member of the National Human Rights Commission, chairpersons of various statutory bodies and tribunals, Law Commission, special investigation teams, inquiry commissions and the like are also available for a retired judge. The political class has a say in most of these elective and non-elective appointments. With the government and political leaders being frequent litigants before the Supreme Court, it could be asked whether judges decide the cases before them with an eye on post-retirement sinecures. Although such criticism may be valid, the answer lies in ensuring a minimum cooling-off period between the retirement of a judge and his appointment in any other capacity.
But Justice Radhakrishnan’s acceptance of the citation as Man of the Year by PETA does not involve conflict of interests of this sort. Rather, it raises the question of the relationship of a judge with civil society. PETA might have been a litigant before Justice Radhakrishnan when he was a judge, but it is unfair to accuse him of impropriety if six months after his retirement he chose to associate himself with a cause, which appeared noble to him, even if a former litigant happened to espouse it.
The Bangalore Principles of Judicial Conduct makes it clear that if a judge is inclined towards upholding fundamental human rights, unless the law clearly and validly requires a different course, it will not give rise to a reasonable perception of partiality forbidden by law.
A judge’s personal values, philosophy or beliefs about the law may not constitute bias. The fact that a judge has a general opinion about a legal or social matter directly related to the case does not disqualify the judge from presiding. [See Jeffrey M.Shaman, Steven Lubet and James J.Alfini, Judicial Conduct and Ethics, 3rd Ed (Charlottesville, Virginia, The Michie Company, 2000)].
Comments by a judge, on an appropriate occasion, in defence of the judicial institution, or explaining particular issues of law or decisions to the community or to a specialised audience, or defence of fundamental human rights and the rule of law, are exceptions to instances of perception of bias on the part of a judge.
Interesting hearing ahead
There is one more reason why the critics of the 2014 judgment in the Jallikattu case ought to have waited rather than accuse the petitioner and the judge of a possible bias.
On January 31, when the Supreme Court bench of Justices Misra and Rohinton Fali Nariman heard the petitions against the recent Tamil Nadu Amendment to the Prevention of Cruelty to Animals Act, the bench did not consider it proper to stay it, following the dictum that the legislature must be presumed to have enacted a valid law.
But there was one interesting query from the bench, which went completely unreported, was not anticipated by the counsel representing both sides and could be an issue to be framed for resolution in the forthcoming hearings on the case.
The question was whether Jallikattu could be defended under the expressions “culture” occurring in Article 29(1) and “take steps for preserving and improving the breeds” used in Article 48 of the constitution. Both were grounds invoked by the Tamil Nadu government for justifying the recent amendment.
That the Supreme Court bench prima facie admitted that these two issues were not raised or considered by the 2014 judgment is a significant development which is in favour of its critics.