Monday, August 28, 2017

Justice Oka & the implications of bias.

If you know anything about baseball, you will know that after three strikes you are out. In Mumbai we play baseball with four strikes, and counting. By the time this ends I have no idea how many strikes will be done. Strikes against our Judges, by our Judges and by the usual hand wringing cowards.

I am writing about the very recent controversy in the Bombay High Court where the Maharashtra State, wholly incorrectly, alleged that Justice Oka harbored a serious bias against the State. Therefore, the Government prayed that the case be placed before another Bench for determination. The controversy has developed after this. Do read on.

Let me briefly set down some facts. Justice Oka is a Senior Judge and was sitting in a Division Bench with the newly minted Justice Riyaz Chagla. The case being heard dealt with the Noise Pollution Rules filed by an NGO and the State Government was a party to the case as a Respondent. Justice Oka has indeed in the past, passed several Orders against the State Government. The most famous Order was where he held that the Law that making the possession of beef a criminal offense was a bad law and he struck it down. So, there is a bit of history between Justice Oka and the State of Maharashtra.

The beef law as well as this latest case relating to noise pollution, particularly during Hindu festivals, is something that is close to the heart of the BJP and the Chief Minister. Yes, the BJP and the Chief Minister may be doing all this to create vote banks. BJP and the Chief Minister are well within their rights to do this, but, and this is a big but, the Courts have to hold such cavalier matters in check. This is exactly what was happening. A Petition was filed and Justices Oka and Chagla were hearing it.

Things were not going well for the State Government during the hearing. When the Court resumed after the lunch recess, the Advocate General sought an adjournment to the following day as he was busy in another case. In the meanwhile, on instructions from the State Government, an application was made to the Chief Justice to have the case placed before another Bench as the Maharashtra State alleged that Justice Oka harbored a bias against the State and, as a result, the State Government feared that they would not get a fair hearing. This was strike one.

Now the fun starts. I believe that her Ladyship the Hon’ble Chief Justice Manjula Chellur was catching an afternoon flight. This was Thursday 24th August a day before the Ganapati holiday on Friday 25th. So, without wasting even a moment, her Ladyship the Hon’ble Chief Justice Manjula Chellur allowed the application to transfer the case. I am not getting into details of Justice Oka refusing to recuse himself etc. The Case was reassigned to another Division Bench with Justice Mohta and Justice Girish Kulkarni. This was strike two.

Now the Court was shut for 3 days, Friday to Sunday. The stage is set for much hand wringing. On cue the ‘Middia’ publishes the fact that this application is made. The reports are peppered with quotes from lawyers with the usual clichés, “not done”, “incorrect practice” “shameful” and so on. Basically, just hand wringing.

The very “propah” Bar Association which has as its members the elite Mumbai Counsel calls a general meeting to pass a resolution to show support for Justice Oka. Not to be outdone, the Advocates Association of Western India, which is not so “propah” in the eyes of the Bar Association and is viewed with thinly disguised contempt by the Bar Association also calls for a meeting to express support. This is strike three.

Now, pausing here for a moment you may well ask, what is all the fuss about? Let me tell you. And do remember the three strikes, so far.

Let us deal with Strike one. Can a Government allege bias against a Judge? Basic question. Initially, and I must admit I was totally wrong, I thought why not? Is it not the duty/objective of every litigant to do his utmost to get justice? However, on second thoughts I realized how wrong I was. The Government, whether Central, State, Municipal or even Government Corporations are parties to in excess of 60% of all litigation. Hence can they allege bias? If they do who/how will they ever be heard? Secondly, take for instance litigations relating to Income Tax or Excise. The Government gets smashed in Court in probably 90% of these cases. There are several reasons for this, but irrelevant here. Can they allege bias because their cases are dismissed by the same Judge who has been specifically assigned a workload of tax cases? Obviously not. OK. Let us assume that this application for transfer was allowed [it was allowed initially] what would happen. Justice Oka’s bias would be applicable to all Government cases. Thus, no Government case can be placed before him. So what cases does a Senior Judge get assigned in this circumstance? Trivial Suits between private parties? Is that not effectively killing a Judge?  Therefore, this sort of application by the Government alleging bias is beyond the pale. It should never have been made, nor should it ever have been allowed.

Let us examine strike two. Once the application for transfer/reassignment of Judges was made to her Ladyship the Hon’ble Chief Justice Manjula Chellur, should she have even entertained or allowed it? Unequivocally no. Allegations of biased Judges are close to being Contempt of Court. Her Ladyship the Hon’ble Chief Justice Manjula Chellur could have refused the application and told the Government to go on with the hearing. If the State Government was aggrieved by the outcome they could appeal. I see no way that her Ladyship the Hon’ble Chief Justice Manjula Chellur could have allowed this application. But, she did. Strike two. Assuming that the status had not changed, as I have written in the preceding paragraph, this would have been the end of Justice Oka’s career.

Strike three, the actions by the Bar Association and Advocates Association is frankly a reflection on the cowardly times we now live in. To be politically correct, not to offend, to take the path of least resistance. After you have read the unfortunate sequence of events, clearly the slip up, or lack of appreciation of the implications of her Ladyship the Hon’ble Chief Justice Manjula Chellur in allowing the application should be called into question. If any sort of resolution had to be passed, surely it should have been against the Chief Justice and the State Government. What is the point of supporting Justice Oka? He was, and who knows, will probably be dead in the water anyway. No Government cases would be assigned to him. Totally bizarre logic by the Bar Associations. But, as I wrote, this is the times we live in. Why upset the Chief Justice? Why pass “negative” resolutions? Let us all be positive and support Justice Oka even if it is meaningless and does not address the issue at all.

As I write this, the situation has been obfuscated even more. It is time for strike four. The political correctness, the ego in not admitting that a mistake has been made has now come to the fore. As I had written earlier, the case was reassigned to a new bench comprising of Justice Mohta and Justice Girish Kulkarni. Probably on realizing the problem, and or on better advise and or on getting blasted by a Senior Judge, in modification of her earlier order her Ladyship the Hon’ble Chief Justice Manjula Chellur has constituted a Bench comprising of 3 Judges with Justice Mohta joining Justices Oka and Chagla. I am not sure how this has improved Justice Oka’s position. Is he or is he not biased? Will he be assigned Government matters? Even with this modified order, how has the allegation of bias against Justice Oka been removed? Simply by taking cognizance of the application and acting on it in this manner, I honestly believe that her Ladyship the Hon’ble Chief Justice Manjula Chellur has really really muddied the waters.

Let us see how this develops. Let us see how many more strikes this takes. Has the field of bias, forum shopping and assigning of cases to the convenience of litigants been changed forever? Probably yes.

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