A WAKE-UP CALL TO THE JUDICIARY

The Chief Justice of the High Court of Kerala directed the Director General of Police to inquire into the allegations of an advocate taking money from a client on the pretext of ‘bribing the Judge’. The media has gone hammer and tongs on the story and vilified the advocate who also happens to be the President of the Kerala High Court Advocates Association (KHCAA). Media never has the courage to point out that the real issue lies with the Judicial System and the Judges and not the Advocates.

The WRITING IS ON THE WALL which the Judges and the Judicial System should read and make quick behavioural changes. However, the decision of the Full Court (All the Judges of the High Court of Kerala) clearly show that the Judges have chosen to ‘feign’ ignorance of the issue. You can wake up a sleeping man, but you cannot wake up a man who feigns to be asleep. What is the real issue?

The fact that litigants / common man has accepted the fact that ‘corruption’ does exist in Judiciary like any other Government offices. The willingness of the people to ‘pay a price’ for ‘Justice’. The willingness of people to search for advocates who ‘knows the Judge’ than an advocate who ‘knows the law’.

The complaint itself seems to be old and surrounds an order made by the Judge in August 2020. It seems that the complaint raised it head up only because the said advocate not just stood for elections of the KHCAA but also won the elections with an emphatic victory margin.

What baffles me or for that matter anyone with basic idea of law is that how can a complaint even stand when the so called ‘client’ has no complaint. Even if the allegations are true, it is basic knowledge that the person who gave the money will be the only one who will be in trouble because as regards the government servant there was neither an offer nor any demand. Even assuming the advocate did take the money in the name of bribing the Judge, the only person who will be in trouble is the person who gave the money with the intent to bribe. Any complaint made by him is as good as a confession and without a doubt he will be the first to fall. As regards the advocate, the ‘client’ still has to prove his allegations against the advocate that the advocate induced him to pay the money in the name of ‘bribing the Judge’. Therefore, it is unlikely that the ‘client’ would ever have a complaint. This sheds light on why the instruction from the High Court to the police was to ‘inquire’ without registering an FIR.

What shocks me was what business did the ‘Full Court’ have with even debating on the complaint made by the judge based on ‘hearsay’ story. Did the Judges not know the body of the complaint had no legs to stand?

What the Full Court ought to have debated was the ‘causative factors’ and not the ‘symptomatic factors’. The Causative factors are petty ego’s of Judges, favouritism of Judges to certain advocates (popularly known as ‘Face value’), lack of knowledge, ignorance of precedents etc.

Since the concerned Judge is Justice P.V.Kunhikrishnan, it would be better to have a look at that particular Judge. There was a delay of more than 2 years for the Central government to clear the name of Justice Kunhikrishnan. We do not know what the reasons were, but incidents like these make us believe that may be the central government have good reasons to withhold names even when cleared and reiterated by collegium.

I know for sure that there is one in-house complaint against Justice Kunhikrishnan pending with the Chief Justice of the High Court of Kerala.

Judges ought to uphold Rule of law and dispense Justice in accordance with the precedents and when precedents are not available on any particular issue, the Judge should be able to reason out his order through a Judgment. If Justice was dispensed by following this basic criteria, we would not have had this problem at all. Justice Kunhikrishnan failed to follow this criteria and therefore, it was only natural, that questions would arise on his integrity as had happened in this episode.

Once while appearing before Justice Kunhikrishnan, he asked me if he had ‘no discretion’ as a Judge? I replied stating that he had a discretion, but that discretion is Judicial discretion that has to be exercised within the four walls of Precedents and reasoning. Justice Kunhikrishnan was reckless and in spite of pointing out specific precedents of the Hon’ble Supreme Court, he turned down relief and recorded it in the order, which I quote:

“2. The petitioner wants to recall this judgment in the interest of justice and to comply with the precedents laid down by the Hon'ble Supreme Court which according to the petitioner is binding on this Hon'ble Court under Article 141 of the Constitution of India.

XXXX – XXXX

6. The learned counsel for the petitioner argued the matter in detail. The counsel submitted that, it is the duty of this Court to go through the judgment referred in the Interlocutory application and pass orders. The counsel also submitted that the writ petition is allowed to be withdrawn without informing the petitioner who is the 4th respondent in the writ petition. The counsel submitted that, till now there is no judicial misconduct but if the unnumbered petition is not considered in accordance with the judgment of the Apex Court, then there is judicial misconduct. The counsel also takes me through the judgments of the Apex Court which is referred in the affidavit along with the application. It is also submitted by the petitioner who is the 4th respondent in the writ petition that the copies of the petitions were not served to the 4th respondent before disposing the above writ petition and before extending the stay order.

7. It is an unnumbered Interlocutory Application in which the prayer is to recall a judgment. The writ petition was allowed to withdraw based on the prayer of the petitioner. In such situation, according to this Court, a petition under Rule 150 of the High Court Rules is not maintainable to recall the judgment. Hence, the objection raised by the Registry is perfectly justified. In an unnumbered Interlocutory Application, this Court need not consider the points raised or decision cited in the affidavit. According to me, this application is not maintainable.”

When the Affidavit filed before the Hon’ble Court carried specifically the Supreme Court Judgments and even the query raised by the Registry was replied to with reference to the Supreme Court Judgment binding on the High Court, Justice Kunhikrishnan did not even find it necessary to deal with the precedent even when his attention was taken to the binding decisions of the Hon’ble Supreme Court. According to Justice Kunhikrishnan, it was perfectly fine for a Petitioner to walk into the court, take interim orders, derive benefits from it and then withdraw the Petition with no consequence when all this is done without service of the Petition on the only affected party and the entire proceedings was behind the back of the only interested party. My client was shocked and obviously had reason to believe that the Judge ignored the law that he was bound to follow and therefore filed a written complaint against Justice Kunhikrishnan invoking in-house procedure and the same is pending with the Chief Justice.

The Supreme Court recently dealt with the issue of showing undue favour to a party under the guise of passing Judicial Orders in?Muzaffar Husain vs The State Of Uttar Pradesh?and stated as under:

"In our opinion, showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct. The extraneous consideration for showing favour need not always be a monetary consideration. It is often said that “the public servants are like fish in the water, none can say when and how a fish drank the water”. A judge must decide the case on the basis of the facts on record and the law applicable to the case. If he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesar’s wife, must be above suspicion.??

When Judges act so recklessly, the eye of the advocates goes to the Parties involved and the advocates appearing. The party involved in this case also happened to be the infamous builder namely, Jain Housing & Construction (JHC). The Hon’ble Supreme Court ordered the demolition of the illegally constructed building overturning the decision of the Single Judge, the Division Bench in Appeal and review. After the orders of the Hon’ble Supreme Court, all the State officials involved and the Builders involved were arrested except the managing Director of JHC. This, when the Madras High Court recalled the order granting ‘transit Bail’ given to him on the grounds of ‘fraud played on the Court’. However, the Builder managed Bail from the High Court of Kerala. The Bail Application which was supposed to be disposed of in one month was heard for a period of 4 months and then after the final hearing Justice Ashok Menon reserved the orders for a full 159 days in a Bail Application finally allowing the bail on the grounds of prevailing Covid Pandemic which was not existent on the day the final hearing was done. The Advocate who appeared in the matter is Adv.Santosh Mathew. Will the same full court deal with Adv.Santosh Mathew in the same manner it dealt with Adv.Saiby? The Full court acted against Adv.Saiby based on a hearsay story, will they extend the same treatment to a few other more affluent and politically connected lawyers?

JHC alone has contributed to in-house complaints against Justice Anthony Dominic, Justice Shaji Chaly, Justice Ashok Menon and Justice Kunhikrishnan. The first three in-house complaints resulted in Writ Petitions and all of them are reported decisions. In all these Writ Petitions, the Court dealt with the technicality of procedure than merits of the case.

Is it a mere coincidence that no matter has been decided against JHC ? There are 4-5 Writ Petitions pending against JHC and none of them have resulted in any orders passed against JHC, not even interim orders. These Writ Petitions are all challenging the construction of another project of JHC by name ‘Tuffnell Park’. The National Green Tribunal set up a Joint committee which has found that it’s the constructions were carried out on a paddy field where no construction can be made, the project had no ‘consent to establish’ or ‘consent to operate’ from the Kerala State Pollution Control Board. The Ministry of Environment and Forest has stated that the construction started before obtaining Environmental Clearance, the Project violated conditions of EC and finally, the EC expired in 2016. The Environment damage cost recommended is about 15 crores. In spite of all this, not a single order restricting the sale of apartments in the Project has been allowed by the High Court of Kerala when there were about 4-5 matters pending before it seeking several reliefs including some interim relief to ensure no more innocent homebuyer ends up draining his money on an illegal construction.

This brings attention back to the issue. We just need to look at the engagement of specific advocates for specific roles before specific Benches. What has happened in the case of Adv.Saiby Jose Kidangor is not something new, but this is the norm. It is just that Adv.Saiby came in the eye of storm because he probably tried to enter in to an exclusive club reserved for a few advocates or because his political ideology was not acceptable to the few who raised the red flag. For me, Adv. Saiby is a victim. Today, it is him, tomorrow, it could be anyone else from the Bar.

In all the scrutiny we do today, none of them is directed to the Judges or the Judicial system. The Union Government is breathing down the neck on the issue of ‘collegium’. How long will the Judicial system be able to hold on to it when “We the People” are increasingly turning against the Judicial system as the Judges do not have ‘accountability’ in the system that we have today. Unless Judicial Accountability is taken care of, the Judges will see themselves getting increasingly isolated and the day is not far when ‘we the people’ would lose its faith on the Judicial system and abandon its support to the Judicial system. Without the support and faith of ‘We the People’, Judiciary cannot stand merely on the strength of the Constitution.

Favouritism of Judges

The Judges should understand that favouritism to particular advocates will catch the attention of the Bar. Even if the Judges may not be corrupt, instances of favouritism will lead to people questioning their integrity. How can judges give a favourable order to one advocate and refuse the same to another when the facts of both the cases are similar?

While Adv.Saiby’s case stated that he had taken money in the name of many other Judges, I cannot comment as regards other Judges because I have not appeared before them. However, as regards Justice Kunhikrishnan, there is a pattern of behaviour and conduct which will easily and clearly raise suspicion. Justice D.Y.Chandrachud, the present Chief Justice of India (CJI) has started a new practice of scrutinising the judgments of the Judges to assess their relative merit before elevation to the Supreme Court. This method can also be used to look at the Judges conduct when in-house complaints are made against Judges. A review of Judgments of Justice Kunhikrishnan should be called for and pinning Adv.Saiby alone with an inquiry without registering an FIR will be gross miscarriage of Justice.

The Hon’ble Supreme Court in R.R.Parekh v. High Court of Gujrat & Anr.[(2016) 14 SCC 1] set out parameters of what could be considered as Judicial Misconduct / Corruption:

“The issue of whether a judicial officer has been actuated by an oblique motive or corrupt practice has to be determined upon a careful appraisal of the material on the record. Direct evidence of corruption may not always be forthcoming in every case involving a misconduct of this nature. A wanton breach of the governing principles of law or procedure may well be indicative in a given case of a motivated, if not reckless disregard of legal principle. In the absence of a cogent explanation to the contrary, it is for the disciplinary authority to determine whether a pattern has emerged on the basis of which an inference that the judicial officer was actuated by extraneous considerations can be drawn. Cases involving misdemeanours of a judicial officer have to be dealt with sensitivity and care. A robust common sense must guide the disciplinary authority. At one end of the spectrum are those cases where direct evidence of a misdemeanour is available. Evidence in regard to the existence of an incriminating trail must be carefully scrutinized to determine whether an act of misconduct is established on the basis of legally acceptable evidence. Yet in other cases, direct evidence of a decision being actuated by a corrupt motive may not be available. The issue which arises in such cases is whether there are circumstances from which an inference that extraneous considerations have actuated a judicial officer can legitimately be drawn. Such an inference cannot obviously be drawn merely from a hypothesis that a decision is erroneous. A wrong decision can yet be a bona fide error of judgment. Inadvertence is consistent with an honest error of judgment. A charge of misconduct against a judicial officer must be distinguished from a purely erroneous decision whether on law or on fact. The legality of a judicial determination is subject to such remedies as are provided in law for testing the correctness of the determination. It is not the correctness of the verdict but the conduct of the officer which is in question. The disciplinary authority has to determine whether there has emerged from the record one or more circumstances that indicate that the decision which forms the basis of the charge of misconduct was not an honest exercise of judicial power. The circumstances let into evidence to establish misconduct have to be sifted and evaluated with caution. The threat of disciplinary proceedings must not demotivate the honest and independent officer. Yet on the other hand, there is a vital element of accountability to society involved in dealing with cases of misconduct. There is on the one hand a genuine public interest in protecting fearless and honest officers of the district judiciary from motivated criticism and attack. Equally there is a genuine public interest in holding a person who is guilty of wrong doing responsible for his or his actions. Neither aspect of public interest can be ignored. Both are vital to the preservation of the integrity of the administration of justice”.

As regards Judicial Misconduct / Corruption, R.R.Parekh and Muzaffar Hussain, are fresh air. What is notable is that these judgments were delivered by the present CJI and another delivered by the next CJI. Both these decisions have come in cases were the Judges belonged to subordinate judiciary and not High Court Judges. Time alone will let us know if these Judgments would be applied in complaints made against High Court Judges.

Judges and their incorrect understanding of ‘Discretion’ and Petty Ego’s

When Justice Kunhikrishnan asked me if he has no ‘discretion’, he expected me to be submissive. My assertion did not go well and it was probably his ego that was hurt which made him fail to see reason. ‘Emotions clouds reasoning’ and this is what probably happened. Justice Kunhikrishnan did not even realise that he was shunning Supreme Court Judgments without writing a word on why he did not consider them and that in the words of the Hon’ble Supreme Court is Judicial indiscipline, Contempt of Court and Judicial Misconduct. However, to reach the Supreme Court, the Writ Appeal has to be disposed and the same is pending.

Another example of ego was when an aviation PIL filed by me was heard by a Bench of Justice Anthony Dominic and Justice D.S.Naidu. Justice Dominic wanted me to add private builders in my PIL. However, he would not pass such directions. He wanted me to make an application and take responsibility for the same which I refused. I know, with my experience, that once private Builders are made parties in PIL’s, allegations of blackmailing would arise and I will have to justify their addition. Whereas, if I make them parties on the directions of the Court, I need not give any Justification. He dismissed the PIL (which is necessarily a Writ Petition) for non-joinder of parties. Writ is always against State, in many other High Courts, it is not necessary to even complete service to private parties for hearing of a Writ. I filed a review and Justice D.S.Naidu told me in the open court, ‘Such a beautifully drafted Petition, but for your ego’. As Judges, they fail to recognise that advocates ego will be in personem (hurt his client alone), but the ego of Judges is in rem. 3 years down the line, the Calicut crash killed 20 people. Had that petition been heard along with the other aviation PIL’s, perhaps, we could have saved 20 lives. Judges while taking oath should remember that their ego’s has no place in the chair they occupy.

A Judge need not be ‘knowledgeable’ on all subjects

An advocate appearing before a Judge has all the time in the world to research his matter, the statutes involved. He has the luxury of having juniors, interns researchers. Whereas, the Judge has atleast 50-100 matters before them placed every day. They need not have knowledge of all Statutes that come before them particularly with newer legislations. Even older statutes like Companies Act, Securities Law, Aviation etc can be a difficult subject to grasp because of technicalities involved. For eg. The Securities Scam involves a lot of these issues and Judges in High Court of Bombay can handle this with ease because of their exposure to it. For a Judge in the High Court of Kerala, the subject would be new and difficult to grasp. It is natural, all that the Judge need to do in such a situation is to show the willingness to hear the matter, hear new propositions with an open mind. But many Judges show off that they know the subject matter and any assertions from the advocate looks to them as humiliation. We come across judges who want to put up a public image of ‘knowing everything’. Many a times, in the name of ‘courtcraft’, many advocates oblige. This doesn’t serve the purpose, the Judges understand the Statutes and new propositions incorrectly.

The outdated concept of ‘Court Craft’

‘Court craft’ is what is practiced in common law countries. Common law countries did not have ‘statutes’ and the law was developed through application of equity and principles of natural Justice. With nothing to guide the Judges, the idea of an advocates ability to please judges by their submissions and propositions required advocates to have this skill. With Statutes replacing ‘common law’ in most countries, it is ‘assertion’ that is the new norm. The Arguments before the United States Supreme Court is available online for anyone interested. Advocates make the least effort at ‘pleasing’ Judges, they are outright assertive. Our colonial hangover is yet to recede. The other day, I heard, Justice Gopinath deliver a lecture to young lawyers emphasising the importance of ‘court craft’. ‘Court craft’ does not have any more a place in the courts in India. We have Statutes, precedents and what we need now are assertions and not ‘submissiveness’.

I recently had the opportunity of appearing before the High Court of Jharkhand at Ranchi. I just couldn’t believe the courtesy of the Bar members to each other inside the courtroom, the emphasis on Statutes and precedents. I didn’t see ‘submissiveness’ in the Courts, but assertions of statutes and precedents in a dignified manner. There was no show, no drama inside the courtrooms. It was pure performance. Legal Propositions supported by statutes and precedents.

Every advocate has his/ her unique style

Every advocate has his style, his tone, his language. As Judges, you hear the submissions he makes and not judge him by his outward appearance or his tone or his language. I happened to appear before a Bench headed by Justice Anil Narendran. The Pitch of my voice is a bit high and he asked me as to why I was ‘shouting’ at his Court Officer. I said, I was not shouting. Thereafter, the arguments went on for about an hour. At the end of the arguments, Justice Anil Narendran understood that ‘my voice’ was ‘normal’ for me and asked me, so this is your ‘normal’ pitch. I smiled and said yes. He accepted me as I was even if he had his own assessment in the beginning. Judges willing to adapt and focus on submissions of the advocate and not get influenced by surrounding circumstances is what is required for the system to run smoothly.

A Judge is a prisoner in a Golden Cage

Being a Judge is not an easy thing. They are ‘prisoners’ in a different way. They have very less social life, they have to think of whom to be friends with, whom to speak, where to go, which function to attend etc. But every ‘Judge’ knows what is he signing up for. Every Judge is/was an ‘advocate’. Perhaps there is no other profession that allows you to be as fiercely independent and as free as an advocate. An advocate can afford to carry his ego, can afford to move around freely, have his circle of friends, go anywhere and if this is what you value more, I would suggest you hold on to it and refuse to be a ‘Judge’. Being a Judge is being a ‘prisoner in a golden cage’. I have my sympathies for the Judges, but after getting into that chair, if they let their emotions, relationships, friendships cloud their reasoning, it is unacceptable. Judges are bound by their oath and if they cannot be true to their oath, they should step down. We have our own great examples, Justice V Giri. He is a born lawyer a gifted lawyer, he suffocated in the golden cage. He set himself free and look where he is, he has made his place in the Supreme Court where you had a huge lobby that prevented lawyers outside Bombay or Delhi to have their space. Similarly we have examples of born Judges, Justice Bechu Kurian Thomas and Justice D.Y.Chandrachud are greatest examples of it. If we ever were to accept the proposition of Adv.Mathews Nedumpara, we would have missed these diamonds. Adv.Mathews Nedumpara was calling out for the resignation of Adv.Saiby. What for should Adv.Saiby resign from a post were he got elected with an emphatic margin?

Recall of Bail Order

Justice Ziyad Rehman who was one of the Judges in whose name Adv.Saiby allegedly took money, recalled a bail granted by him. Bail was granted in April 2022, the de facto complainant is certainly aware of it. yet he doesn't approach the court. When allegations fly, he comes to the court with an application and the Judge considers it when it is his responsibility to record whether the notices were served on the de facto complainant or not, particularly when the de facto complainant is not represented in the court during hearing. May be it is the job of the prosecutor or the Court officer to inform the Judge, but Judge has a responsibility to record it. In Kerala High Court, these basic procedures are not followed. These actions make us question if the bail was granted in the first place based on the facts and law or was granted because Adv.Saiby appeared and when Adv.Saiby got exposed in public, you recall an order already granted. Liberty of a person is not a football that you kick around. When due process is not followed, it is Justice that gets subverted.

Adv.Saiby himself is silent. He has chosen silence when based on the facts, he can stand up for himself and 'push back'. I am not commenting on whether he would have actually done what is alleged to have been done. I also would not support such actions on the part of any member of the Bar, but you need to remember the defence of Charles Darrow, the American Labour lawyer who was accused of corrupting the Jury. As a member of the Bar, I can only wish Adv.Saiby stand up and question every action of the Judges.

The Hon’ble Supreme Court emphasised the need to follow in Sundarjas Kanyalal Bhathija and Ors. Vs. The Collector, Thane, Maharashtra and others AIR 1990 SC 261 and I quote:

‘‘Constitution of India, Art.141- PRECEDENTS - Judges are bound by precedents and procedure - They could use their discretion only when there is no declared principle to be found, no rule and no authority - where a single judge or a Division Bench does not agree with the decision of a Bench of co-ordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure - it is the duty of judges of superior courts and tribunals to make the law more predictable. The question of law directly arising in the case should not be dealt with apologetic approaches. The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry convictions within the Courts, profession and public. Otherwise, the lawyers would be in a predicament and would not know how to advise their clients. Sub-ordinate courts would find themselves in an embarrassing position to choose between the conflicting opinions. The general public would be in dilemma to obey or not to obey such law and it ultimately falls into disrepute- One must remember that pursuit of the law, however glamorous it is, has its own limitation on the Bench.’’

If the Judges of the High Court of Kerala comply with the above precedent of the Hon’ble Supreme Court, we would not have had an issue where ‘We the People’ believed that their Judges are corrupt and were willing to ‘pay’ for it. Following precedents also means you keep away your emotions (that tend to interfere with reasoning), favouritism, ego’s and do justice to the facts and law before you. In short, when Judges learn to uphold Rule of Law, we will not have Saiby’s or people who are willing to ‘buy’ Justice.

Adv.Saiby is a merely a face of a problem, the problem will not vanish by erasing the face of Adv.Saiby. What we need is the judges of the Kerala High Court to accept the new reality and ensure that they follow precedents or they justify with reasons their orders which are not covered by precedents, refrain from giving different orders on similar facts to different lawyers, keep their ego’s away from them when they sit on that chair. What we need the Judges to do is to introspect and initiate behavioural change that complies with the due process of law.

For the Judges, Saiby’s will come and go. But as long as we have corporates like Jain Housing & Construction, they will keep reminding us that Rule of Law can be subverted through a right combination of advocates, doesn’t matter which Judge is presiding over. For last 5 years, we have matters against JHC pending including matters before the Chief Justice of High Court of Kerala. I have absolutely no issues if the matter is disposed against me because I can use the appeal Jurisdiction, but by keeping matters pending, I do not even get a chance to do so. This is worse than giving favourable orders, because orders always gives the other side an opportunity to fight back.

When innocent homebuyers who paid their life savings to buy their dream home come to the advocates and say that they do not have enough money to match what JHC would have paid the Judges, but they can try and raise money if we were to give a figure, all we can do is drop our head in shame. Judges need to know that there are still thousands of lawyers who suffer because of their behavioural pattern and it is that pattern which gives birth to advocates like Adv.Saiby. For me, Adv.Saiby will be a victim, a victim of the System. May be Adv.Saiby belonged to the same group of thousands of lawyers who suffered the clout of a select few, but just learnt the art to break into the exclusive club.