The Curious Case Of Criticism, Court And The Constitution

Three principles attributes of God in Islam are Providence (Rububiyat), Mercy (Rehmat) and Justice (Adalat). In an unprecedented order, the Supreme Court (Aadalat) in its Rububiyat recently issued notice to its former judge (Justice Katju) and asked him to appear before it to find whether Rehmat can be given to a life convict. In his blog, tilted ‘Satyam Bruyat’ (means - speaking truth in sanskrit), Justice Katju had criticized a recent judgment by the Supreme Court and gave Hidayat (advice) to it that it was wrong; popularly known as the Soumya murder case. The Supreme Court had acquitted the accused in Soumya murder case from murder charges and upheld the conviction and sentence for rape and other offences. Justice Katju started the blog post by writing “From the evidence on record”; suggesting that he had gone through the trial court’s judgment, the High Court’s judgment and then the Supreme Court’s judgment before penning the post down. Lately, Justice Katju vide a facebook post has accepted notice and agreed to appear saying that he has been ‘requested’ to appear and not ‘ordered’.

Three provisions of law demand attraction here and deserve to be quoted in full –

• Article 124(7) of the Constitution states - “No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory ofIndia.”


• Article 144 of the Constitution states – “All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.”


• Section 32 of the Advocates Act, 1961 states –“Notwithstanding anything contained in this Chapter, any court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case.”

Article 124(7) drafts a constitutional embargo on judges retiring from the Supreme Court to ‘plead or act in any court or before any authority’ within Indian territory. Three things are to be noted here. Firstly, it is a negative constitutional provision and controls post retirement employment of judges acting in past tense. Secondly, it uses two interesting terms i.e. plead or act. Please note that it does not say ‘plead and act’ to construe it as a single expression. The two terms; plead as well as act, have very wide connotations. To plead means to pray to the court for a relief, which is justifiably restricted as once a judge holds a post in that court he cannot logically be allowed to plead before it or below it, which would have violated both judicial proprietary and legal discipline. To act; on the other hand stretches itself with arms wide open. In my submission, it expands itself to participation, both direct and indirect. It has been used distinguishably from plead in the article, intending to mean something different than to plead a case. Interestingly, Article 124(7) does not use the expression ‘appear’ which is in tune with plead or act. Thirdly, it uses “in any court or before any authority”. Pertinently, Article 124(7) restricts a retired judge from acting or pleading ‘in’ any court and ‘before’ any authority. Authority may include tribunals and quasi judicial bodies and arbitrator. There is nothing in the section which prohibits judges from rendering opinions on disputes. The use of ‘in’ is separate from ‘before’. Restricting to ‘act’ or ‘plead’ ‘in any court’ is very wide and may include even coming and sitting in the court room silently! Interestingly, there was no such restriction before the Constitution and lawyers like Jamshedji Kanga resigned from the bench and joined the bar. Article 124(7) also does not seem to bar judges presiding in tribunals after retirement. Howsoever, the very first Law Commission in its 14^th Report considered the question of Supreme Court judges taking up employment after retirement and the Chairman M.C.Setalvad with members such as M.C.Chagla had recommended that no judge shall take up any employment except if appointed as an ad hoc judge under Article 128. Unfortunately, Chagla himself took employment as an ambassador shortly after signing the report. Article 220 is similarly worded but acts in a different sphere for retired permanent High Court judges; restricting their post retirement employment and categorically to practicing before the same High Courts from where they had worked as a judge. They are however permitted to act or plead before other High Courts or the Supreme Court. Interestingly, Article 220, similar to Article 124(7) uses the expression ‘plead or act’ which was construed as akin to practice by the Law Commission in its 72^nd Report. Furthermore, Article 144 commands all authorities, civil and judicial to act in aid of the Supreme Court.

Section 30 of the Advocates Act, 1961 grants a right to practice to advocates. However, this section is subject to other provisions under the Act. There are other restrictions under the Act which prohibit, retired judges from acting, appearing and pleading before the court ranks from where they retired. Section 30 is therefore subject to Section 32 of the Act as well. Section 32 lays down a very interesting proposition. It grants a wide permitting power to courts to permit any person from acting or appearing before it in any particular case. The moot question however is whether the court may permit on an application made by a person or on its own motion. The use of the expression ‘permit’ prima facie implies that an application must be presented to the court, in response of which the court may choose to permit any person; irrespective of the fact if he is enrolled to practice, to appear or act before it. What Section 32 however misses is the two expressions – plead or act, and uses appear instead.

Coming to the instant case, the Supreme Court has converted the matter to a suo motu criminal review petition. Interestingly, there is generally no review in criminal law. Section 362 of the Code of Criminal Procedure, 1973 expressly bars any permissible review in Indian criminal jurisprudence. Howsoever, Article 137 being a constitutional power to the Supreme Court to review its orders and judgment works on a larger footing and permits Supreme Court to avoid miscarriage of justice or abuse of power by reviewing criminal cases. The Court in the instant case, however, made the success of review subject to what Justice Katju has to say! To quote :

“We issue notice to Justice Markandey Katju, former judge of this Court and request him to appear in Court in person and participate in the proceedings on 11th November, 2016 at 2.00 p.m. as to whether the judgment and order dated 15th September, 2016 passed by this Bench in Criminal Appeal No.1584-1585 of 2014 suffers from any fundamental flaw so as to require exercise of the review jurisdiction.”

This order, and I repeat myself loud for Justice Katju, the ‘order’, is rather oddly worded. The Court, moreover, has issued notice to Justice Katju and asked him to appear in Court in person on fixed date and time and participate in the proceedings. The Court has further ordered him to a specific question as to whether the judgment suffered from any ‘fundamental flaw’ so as to require exercise of the review jurisdiction. The exercise of review in criminal cases as per Order XLVII Rule 1 of the Supreme Court Rules, 2013 is limited to error apparent on face of record! The Court cannot exceed the statutory limit to a ‘fundamental flaw’ which is a wider term. Rule 2 further makes it compulsory that a review can be done only on a petition, from where did the Court find the concept of a suo motu criminal review petition still remains unanswered. Further, it is also important to note the provision enshrined in Order XII Rule 3 which states that Subject to the provisions contained in Order XLVII, a judgment pronounced by the Court or by a majority of the Court or by a dissenting Judge in open Court shall not afterwards be altered or added to, save for the purpose of correcting a clerical or arithmetical mistake or an error arising from any accidental slip or omission.

In my submission, this anxious order makes a head on collision between Section 32 of the Advocates Act, 1961 and Article 124(7) of the Constitution, where constitution must succeed in rank and precedence. So many questions pop up. Whether court can issue notice to a former judge and instruct him to appear and participate before it? Whether Court as upholder and enforcing agency of the Constitution can negate a constitutional provision in doing so? Whether the oath taken by a Supreme Court judge, as prescribed under Schedule III of the Constitution to uphold the Constitution, not continue after retirement? In other words, does a judge de-oath himself post retirement or is bound by it till death? Whether Article 124(7) grants immunity to a judge from being asked to appear in a court of law? Whether in absence of any voluntary interest shown by a retired judge, can he be called to respond, appear and participate before the Court? Whether this order amounts to the first step in silencing constructive criticism against Court by calling critiques to appear before it without even ordering to supply briefs to them? Whether the order amounts to exercise of hard paternalism by the judiciary? Whether Article 124(7) works as a privilege to retired judges to not act before any forum? Whether this is a curious case attracting the doctrine of unconstitutional conditions, whereby the Court has forced a retired judge to waive his constitutional protection? Looking for answers, we may only find some solace in the Supreme Court Rules, 2013. Order LV Rule 6 grants very wide powers to the Supreme Court stating that nothing in the rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Further, Justice Katju being a judicial authority, as he remains so even after retirement has to abide by Court’s order and appear on the fixed date and time.

It is trite law that court cannot replace ‘good’ with ‘very good’. A Court is bound by what the law says. (Jus dicere et non jus dare) The law nowhere permits registering a suo motu criminal review petition. Law also does not permit the Court to call a retired judge to participate and if required, address it. This order calling a critique to the Court by issuing notice is also pernicious in nature and goads constructive criticism in a wrong direction. The Court cannot say we love the constitution but we choose to ignore it. Subject to my limits of comprehension, this order cripples Order XLVII Rule 1 of the 2013 Rules, fractures Section 32 of the 1961 Act and almost murders Article 124(7). The Constitution grows only by parliamentary amendments or through judicial interpretation. The Court should either explain as to how it can notice a retired judge to participate in alive proceedings or show as to whether it has been done under Article 142. Driving the last proverbial nail, this order by the Court calling a critique retired judge who is constitutionally barred from pleading and acting in it, prima facie does not appear to be correct and makes the judicial seller a consumer of its product. Will be there on 11.11 in the Court, stay tuned!

Till then, let us not forget what was famously said in Livanage v  Reginam (1966) – “What is done once, if it be allowed, may be done again and in a lesser crisis & less serious circumstances; and thus judicial power may be eroded”. Fingers crossed!

Namit Saxena is a Lawyer practicing in the Supreme Court of India.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

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