Various lawyers’ associations have termed the government’s initial action as ‘interference’ since the constitution clearly separates powers between the legislature, the executive and the judiciary.
Four days after the Maharashtra state government made the serious allegation of a “bias” against Justice Abhay Oka, one of the senior most sitting judges of the Bombay high court, the government on Monday, made a u-turn, withdrawing its charges. The advocate general (AG) of the state, Ashutosh Kumbhakoni, expressing regret over the state’s earlier stand, said: “Unfortunately, the intention has been misunderstood and misinterpreted to project the state is against the judiciary.”
The state government, through the AG, had moved an application in an open court on August 24, alleging that Justice Oka harboured a “bias” against the administration. The application was moved during a scheduled review – by Justices Oka and Riyaz Chagla – of an order passed by it in 2016 on setting up silence zones across the city after an amendment to the Noise Pollution (Regulation and Control) Rules by the Central government.
The state government in its application cited “examples” of Justice Oka’s views on the dahi handi festival and the recently amended noise pollution rules on declaration of silence zones to “demonstrate” his bias.
Although an unprecedented application, it was acted upon promptly by the Chief Justice of the Bombay high court Manjula Chellur, who transferred a bunch of cases – all pertaining to noise pollution – from Justice Oka’s court to another division bench. However, on Sunday, the chief justice withdrew her own order and sent the matter back to Justice Oka’s court. But this time, instead of the two judge bench, it was a three judge court, with Justice Anoop Mohta added to the bench.
On Monday, when the matter came up for hearing, the AG told the court that he was taking complete responsibility regarding the earlier application and submitted a two-page communication in the high court, which said the state’s allegations that Justice Oka harboured a serious bias against the state machinery in the noise pollution matter “was not raised as an allegation against the judge personally, but was limited only to the subject matter involved.” Justice Oka directed the AG to “show remorse” for making such a “frivolous” application in the past by filing an affidavit before the chief justice.
While the AG continued with his clarification, the court said it was not touchy about the allegations against a particular judge. “Our anxiety is about the consequences of such frivolous (state’s) action. Such action affects the dignity of the judiciary, and of this 155-year old institution (the high court),” the bench said. “Your allegations mean that the Maharashtra government doesn’t want the high court to exist. It means that the state does not trust the high court and it says so in as many words,” the court observed.
Matters like these are of high political importance. The high court’s decision to declare silence zones in the state directly challenges chief minister Devendra Fadnavis’ assurance, relaxing silence zone norms, to the organisers of the Ganesh festival. Before this, the state had also decided to remove restrictions on the height of the human pyramids during the dahi handi festival. Both these festivals have great mass appeal and for decades have been used to garner political mileage by every big and small political party. Senior advocate Birendra Saraf, who appeared for Awaaz Foundation in one of the petitions against noise pollution, had, on August 24, called the state’s move “politically motivated.”
The withdrawal of the letter, however, did not appease the legal fraternity. Even though the AG had already withdrawn the letter on Monday morning, the Bombay Bar Association (BBA) called for a meeting later in the evening and the government’s stance was unequivocally condemned. The resolution passed after the meeting attended by its 304 members “condemned” and “deprecated” the conduct of the state government, the AG for demanding Justice Oka’s recusal and the chief justice’s earlier decision to transfer the matter. The members called the state’s demand of recusal “untenable” and that it was made on “unwarranted grounds and attempting to interfere with the administration of justice and attacking the independence of judiciary.”
The resolution further stated: “While the BBA notes that the honourable chief justice has restored the noise pollution matter to the original bench presided over by the honourable Justice Oka, this house strongly condemns and deprecates the action of the chief justice in withdrawing a part heard matter from a judge of this court on the reckless, baseless unwanted allegation of bias against the Judge concerned.”
Saraf, who is also the secretary of the BBA, and is appearing in the matter, decided against participating in Monday’s meeting. But he made a strong worded submission to the court. “If an application (the state’s letter demanding Justice Oka’s recusal earlier) of this nature is entertained, it will set a precedent where private parties would insist in the future that any such baseless allegations made by them against a bench of this court, should receive similar treatment. Where does this lead us to? Where does one draw the line?”
Another bar member, Raju Moray, who was one of the 304 members to have signed the resolution yesterday, called it “a low blow by the state government to the judiciary”. “The state government does not look into the nitty-gritty and the legal implications and simply issues and order. But it is for the AG to act in accordance with law and act maturely,” Moray said. He however said he would give the chief justice the benefit of the doubt and like Justice Oka’s court, felt she was misguided. “She (the chief justice) was not informed about Justices Oka and Chagla’s order dated August 24. If she were better informed, I believe the scenario would have been different,” he said.
Other lawyers’ associations, like the Indian Association of People’s Lawyers (IAPL), also condemned the chief justice’s decision and termed the governments allegations “brazen”. The association called such interferences from the government in the administration of justice as a move against the basic structure of the constitution, which clearly separates the powers between the legislature, the executive and the judiciary. “An independent judiciary and non-interference in its functioning is crucial in a democratic state. It is essential that the judicial and legal fraternity resist such interference in the administration of justice so that the rule of law prevails, and a matter is judged on its merits, irrespective of the parties,” IAPL member Arun Feriera said.
Sukanya Shantha is a freelance journalist.