Justice AP Shah, Former Delhi High Court Chief Justice and former Chairman of Law Commission of India, has opined that the Judgment of the Supreme Court in the Judge Loya Case is utterly wrong and jurisprudentially incorrect on so many counts.
Justice Shah, who was speaking during the launch of Arun Shourie’s book ‘Anita Gets Bail’, also said that judiciary is going through 'an extremely volatile phase, and one that he hasn’t seen in some years'. Former Chief Justice of India RM Lodha and Senior Advocate Fali Nariman were also present for the occasion.
Justice Shah said our judiciary is going through what he would describe as an extremely volatile phase, and one that he hasn’t seen in some years.
“Most of us are only too aware of what is happening, and some of us talk about some of these things in hushed whispers or, occasionally, in loud voices. But Mr Shourie has done what most of us have not. He has put pen to paper, and in his own distinctive style, and with remarkable flair, “called out” the judiciary and those who staff the system. This book covers a vast expanse of subjects, from the disturbing state of affairs in our lower courts, to how the judiciary is being used by the mighty for their own benefit, to the consequences and meta-consequences of the judiciary’s actions, to the eloquence and sometimes grandiloquence of judicial orders... I can only hope that the powers that be read these essays with care and indulge in some self-reflection to understand where we are headed, and ensure that the course we are taking is not wayward or destructive”, he said.
Regarding the Judgemnt in the Loya Case, Justice Shah said the Judgment of the Supreme Court in the Judge Loya Case is utterly wrong, and jurisprudentially, incorrect on so very many counts.
“Much of the judgment is spent attacking the motivations of petitioners who bring forward Public Interest Litigations, particularly politically-motivated PILs. This is not the first time the court has dealt with this. But has the court properly analysed the use of the PIL in this particular case?”
“Another thing which is remarkable about this case is that the court called it a “veiled attempt to launch a frontal attack” on the judiciary. But how did they come to this conclusion - all that the Bombay High Court petitioners asked for was that the death of a judge should be inquired into. How does this become an attack on the judiciary?”.
According to Justice Shah what in fact transpired is that the Supreme Court acted as a Court of Appeal, and granted a sort of an acquittal, without the benefit of the judgement of a trial court.
“As the constitutional scholar Gautam Bhatia describes it, "it reads like a trial court judgment that has been delivered without a trial”
He also observed that more problematically, the Supreme Court has evolved a whole new jurisprudence regarding the statement of a judge.
“It says that the statements of judicial officers should be accepted on the face of it, as their statements have a “ring of truth” about them. Note that these statements made by the four judges who accompanied Judge Loya to Nagpur were not made in their capacity as judges, but about their personal knowledge of what happened in Nagpur. Nobody has seen their statements. However, the ring of truth still exists, and therefore the court has decided that these statements should be accepted. It is as if judges are to be treated as superhuman, as beings who are not capable of telling untruths”.
Justice Shah added that it gets more uncomfortable when the court dismisses the fact that the judges cannot be cross-examined, because their testimonies are not on oath, as being “mere technicalities”.
“The cross examination is regarded in criminal law, and in international convention, as the most powerful weapon to get at the truth. And our Supreme Court calls it a mere technicality? We should be very very worried.
“Compare this with what court said regarding the video testimonies of father and sister. It said that these were mere hearsay and ought to be disregarded. In the same case, the Supreme Court chooses to completely disregard the Evidence Act, when it comes to the testimony of judges, but chooses to invoke it for the video testimony of the deceased judge’s family. This is an entirely new principle that has been evolved that a testimony is said to be accepted, not because the person is telling a truth, but because that person is of a certain status, in this case, a judge, and by virtue of being of such status, that person is incapable of telling an untruth.
Read the Full Text Of The Speech Here
ANITA GETS BAIL
A HEARTLESS SYSTEM
GAMING THE JUDICIARY
PROTECTING THEIR OWN