On Thursday, the Centre notified the appointment of Andhra Pradesh high court Chief Justice Jitendra Kumar Maheshwari as the Chief Justice of Sikkim high court, and the Sikkim high court Chief Justice, Arup Kumar Goswami as the Chief Justice of Andhra Pradesh high court.
Although these two appointments were a result of the recommendations of the Supreme Court collegium on December 14, they coincide with a controversial order passed on Wednesday by Justice Rakesh Kumar of Andhra Pradesh high court, who retires on Thursday. The coincidence is not without significance, as in his order, Justice Rakesh Kumar not only deplores the role of the Supreme Court’s collegium in acquiescing to the Executive, but the inability of the judges of the higher judiciary – on the verge of their retirement – to resist overtures from the Executive in order to secure post-retirement sinecures.
Justice Rakesh Kumar’s order was in connection with his refusal to recuse from hearing a challenge to the auction of State land. The recusal plea was moved by the state government, on the ground that Justice Kumar might have disqualified himself because of the observations he allegedly made against the state government while hearing another case.
Although Justice Kumar had asked the state government counsel to come prepared to answer why the court could not arrive at a finding that constitutional machinery in the state had failed, that was in another case, which was duly stayed by the Supreme Court. Justice Kumar, however, denied stating in this case that there is breakdown of constitutional machinery in the state, and that the bench would hand over the administration to the Centre, as alleged by the state through the additional advocate general, Sudhakar Reddy.
Justice Kumar concurred with the view that the state government’s false statement in this regard was derogatory and prima facie contemptuous, and directed the high court registry to issue show cause notice to the state government for the same. Justice Kumar also directed the registrar-general of the high court to initiate criminal prosecution against Reddy for perjury.
“Judiciary under attack from persons in power”
Opinions may differ whether Justice Kumar ought to have responded the way he did, beyond offering reasons for refusing to recuse, as prayed by the state government in a given case. As Reddy claimed that the state government’s recusal application was based on the media reporting of the judge’s observations while hearing the case, threatening him with contempt proceedings and criminal prosecution for perjury may seem disproportionate response from the bench.
However, Justice Kumar’s observations – which appear extraneous to the facts of the case before him – must be understood in the context of his impending retirement and his feeling of helplessness to uphold the majesty of the court. As he mentions, “Now-a-days, a very disturbing trend has developed in our system. If one is influential, powerful, i.e., both in money and muscle, he feels that he is having every privilege to do anything as per his convenience and to the peril of system or poor citizen”.
Referring to the Supreme Court’s stay of his order asking why the high court could not arrive at a finding that constitutional machinery has failed in the state, Justice Kumar observed that one could draw an adverse inference against the acts/excesses by the police in the state.
Justice Kumar referred to the state government’s recommendation to abolish the legislative council in the state only because it disagreed with the assembly’s decision to establish three capitals and its action against the state election commissioner, because he was not proceeding as per its wishes. Justice Kumar alleged that the state police virtually indulged in a practice to protect the accused in FIRs registered following complaints by the high court registry.
Justice Kumar expressed his apprehension that bureaucrats of the state have been emboldened after “apparent success of the chief minister of the state” in addressing a letter to the Chief Justice of India (CJI) S.A. Bobde and making it public. In his letter, the chief minister, Jaganmohan Reddy, made serious allegations against Justice N.V. Ramana of the Supreme Court, chief justice of the Andhra Pradesh high court, and a number of sitting judges of the high court.
Justice Kumar pointed out that the chief minister was an accused in more than 30 cases, of which the Central Bureau of Investigation is investigating at least ten cases. “In those cases, where chargesheets have been filed long back, there is an allegation that he took several crores of rupees as bribe and committed serious offences under the Prevention of Corruption Act, 1988, and other offences”, Justice Kumar observed.
“Surprisingly, though cases are pending since 2011 and onwards, till date, in none of the cases, charges have been framed. Is it not a mockery of the system?” he asked.
Justice Kumar also questioned the mysterious silence of the CJI over the chief minister’s letter to him, by saying “we are not aware as to whether any contempt proceeding for such an action has been taken or not by him; but, it is a fact that recommendation has been made on December 14, 2020, by the collegium of the Supreme Court for transfer/appointment of chief justices, which includes transfer of Chief Justice of AP high court to Sikkim high court and transfer of Chief Justice of Telangana high court to Uttarakhand high court”.
A disturbing trend?
After noticing the apparent link between these two events, Justice Kumar observed: “Whether by this act of sending unceremonious letter to the CJI, the chief minister of Andhra Pradesh will get final relief or not, but fact remains that he succeeded in getting undue advantage at the present moment.”
Justice Kumar inferred that by these transfers, naturally, the cases pending against the chief minister might be delayed and the monitoring by the Supreme Court might hamper for the time being.
“Similarly, by the transfer of Chief Justice of AP high court, the government of Andhra Pradesh is bound to get undue benefit,” he added. Justice Kumar underlined the need for transparency in the transfer of high court judges or its chief justices, saying “after all, they are also holding constitutional post like members of the Supreme Court Collegium”.
Many may question Justice Kumar’s propriety in giving details of the CBI and Enforcement Directorate (ED) cases in which the chief minister is an accused, and the other cases in which he is alleged to have committed offences under the Indian Penal Code. Thus, he said there are 11 CBI cases, six ED cases, and 18 IPC cases against the chief minister. Of these in six or seven cases, he said, the state police submitted closure report, stating that they were false or mistake of fact.
He even alleged that the director general of police of the state is functioning as per the dictate of the government, and not in upholding rule of law. He claimed that he was constrained to record these facts because his impartiality was questioned by the state on the eve of his retirement.
Turning his ire to post-retirement sinecures for the judges as the reason for the judiciary coming under a cloud, he said, “If we start to restrict our expectation of reassignment/re-employment at least for a period of one year after retirement, I don’t think that any political party, even party in power can undermine the independence of judiciary and we may be in a position to uphold the majesty of law without being influenced by anyone.”
Justice Kumar concluded that those in power in the state are now seeking to attack the Supreme Court, after succeeding to attack other institutions such as legislative council, state election commission and the high court.
Considering the hard-hitting order delivered by Justice Kumar, it is possible that it may be recalled or set aside to avoid any embarrassment to the Supreme Court. But the allegations and insinuations which Justice Kumar made in his last order can help one to unravel the murky deals being made behind the curtain to resolve the gang war in the state, with repercussions in New Delhi.