Can Judicial Order Be Set Aside On Public Perception?Calcutta High Court Asks CBI In Narada Case

Can a judicial order can be set aside on the basis of public perception?

This question came up during the hearing of the Narada case before a 5-judge bench of the Calcutta High Court on Tuesday.

The Solicitor General of India, Mr.Tushar Mehta, appearing for the Central Bureau of Investigation, was arguing that the entire proceedings of the Special CBI Court at Kolkata on May 17 in granting bail to four Trinamool congress leaders were "vitiated and non-est in law", as the bail was granted in the backdrop of mass protests led by the Chief Minister, Law Minister and other leaders against the arrests.

Since the CBI is yet to challenge the bail order or to seek the cancellation of the same under Section 439(2) CrPC, the Solicitor General adopted the strategy of arguing that the bail order did not inspire public confidence, by suggesting that it was passed succumbing to mob pressure.

Careful to add that he was not attributing anything against the Special CBI Judge, the Solicitor General stressed that "an order passed by a civil or a criminal court, must inspire confidence. Public confidence in system is important".

In this regard, the Solicitor General said, the guiding principle must be the common man's perception of justice and not the perception of judges or lawyers.

"A common man's perception of justice must be the guiding principle. It is his confidence which makes this system going. Therefore the perception shall have to be that of the common man", the SG said.

Bench raises counter-questions

However, the bench did not seem to be in appreciation of the Solicitor General's arguments.

The bench asked the Solicitor General if a court of law can look into such external factors, if the impugned order is not suffering from any defects on merits.

"As a court of law, we can only check if the alleged mobocracy has influenced the learned judge. We can only take into account the legal factors considered by the judge. You have said you are not attributing anything to the judge. If there is nothing on record to show if the learned judge was influenced, how can we as a court of law look into other factors?," Justice IP Mukerji, the second senior judge of the bench, asked the SG.

"Unless you can show that alleged mobocracy had any effect on the (CBI Court) judge, how can you invoke Article 226?", the judge asked.

The SG clarified that he meant he is not attributing bias to the judge. But the question is what will be perception of the common man.

"The question is not whether the bail granted was right or not. For argument sake, presume that arrest is illegal. The question is whether the perceived intimidation could shake the common man's faith in the system", he replied.

The top law officer of the Union Government emphasized that the 5-judge bench was considering a larger issue of breakdown of rule of law and mobocracy and not just the grant of bail. If the CBI was seeking mere cancellation of bail, it would have filed appropriate application under Section 439(2) of CrPC, the SG said. The SG added that the CBI was seeking transfer of trial to another court in exercise of powers under Section 406 CrPC, and a declaration by the High Court under Article 226 and Section 482 that the entire bail hearing was vitiated.

"The question now is can they seek bail by such conduct" the SG said while claiming that incidents like those that occurred on May 17 are happening frequently in the State of West Bengal.

"Unless checked, this can get replicated in other states. This can be adopted by politicians, gangsters and members of particular communities. This 5-judge bench has not assembled to decide the question of whether bail has to be granted. We are not on that minimalistic question. I am on a more fundamental, more constitutional, more rule of law argument," he said.

At this juncture, Justice Mukerji interjected and told the SG that there are umpteen number of high profile arrests in country, such as involving celebrities and spiritual leaders, where there would be public outcry and protests. "Unless you show that the learned judge was influenced by it, this will be counter-productive," the Judge said.

Justice Soumen Sen added, "Can a judicial order be set at naught on the basis of a perceived injustice?"

The Solicitor General responded, "That is the question. Justice must also be seem to be done."

Justice Harish Tandon, another member of the bench, wondered if the emotional responses of the common man can be a consideration to test the legality of a judicial order.

"Common man may go by their emotions or sentiments. We have to see rule of law framework. Even if the emotions are high, rule of law does not permit them. I don't think the emotions of common man, dehors the rule of law, would avert the dispensation of justice. In a hierarchical system, there are remedies available against a judicial order", Justice Tandon said.

Justice Arijit Banerjee, the fifth judge in the bench, pointed out to the Solicitor General that the arrested persons have filed applications seeking recall of the ex-parte stay granted by the division bench on the bail order. So if the 5-judge bench is considering the question of bail on merits, how the Solicitor's arguments on public perception will be relevant, the judge asked.

The Solicitor General then urged the Bench to not reduce this case to a mere issue of bail, as it involves an issue of seminal importance relating to rule of law.

At this point, Justice Mukerji reminded the Solicitor General that the division bench has referred the entire case to the 5-judge bench, including the issue of bail.

"Mr Solicitor, you may proceed in your own way. Cite your authorities. But it may be noted that the entire issue was assigned to the 5-judge bench by the Acting Chief Justice", Justice Mukerji told the SG.

The SG then said that he was not trying to suggest that the bench cannot consider the issue of bail.

"Your lordships can consider the issue of bail. Your lordships can consider the issue of stay. My submission is let this not be reduced to a question of bail. I may not be misunderstood.Your lordships are dealing with a case where constitutional functionaries laid a seige at the CBI office at the behest of the accused. Such a situation is not normal", he said.

"Since the entire issue is before us, we can also decide if the arrest was legal, and if the arrest is illegal, the parties can be put in an anterior position. But for that we have to make a prima facie finding for that", Justice Mukerjee commented.

The lawyers for the accused, Senior Advocates Kalyan Bandopadhyay and Dr Abhishek Manu Singhvi, requested the bench to consider the recall applications first, as the question of personal liberty was involved.

Agreeing to this request, the bench adjourned the hearing to tomorrow 12 noon, to hear the recall applications.

Full minute-by-minute live account of the hearing may be read here.