We won’t allow Bench Hunting, Bench-Hopping or Bench Avoiding; Justice Kehar in Sahara Judgment

In the Sahara Judgment delivered by the  two Judge Bench consisting of Justce Radhakrishnan and Justice Kehar, the Supreme Court has come down heavily on Senior Counsels  by saying that “if it was learned counsel’s posturing antics, aimed at bench-hunting or bench-hopping (or should we say, bench-avoiding), we would not allow that. Affronts, jibes and carefully and consciously planned snubs could not deter us, from discharging our onerous responsibility”

Live Law extracts here the interesting, but bold statements of the Court upholding the Majesty of Law, emphasizing the Power of Indian Supreme Court;

Para 8.” For, Mr. Ram Jethmalani, learned Senior Counsel, was now more forthright. He told us, that we should not hear the matter, because “his client” had apprehensions of prejudice. He would, however, not spell out the basis for such apprehension. Dr. Rajeev Dhawan, came out all guns blazing, in support of his colleague, by posing a query: Has the Court made a mistake, serious enough, giving rise to a presumption of bias “even if it is not there”? It was difficult to understand what he meant. But seriously, in the manner Dr. Rajeev Dhawan had addressed the Court, it sounded like an insinuation.

Para 8 “Dr. Rajeev Dhawan, then informed the Court, that “moments come in the profession, though rarely, when we tell the Judges of the Supreme Court, that you have committed a terrible [terrible] mistake, by passing an order which has violated the civil liberties of our client. … that the order passed is void”. And moments later, referring to the order, he said, “it is a draconian order” The seriousness of the submissions apart, none of them, even remotely, demonstrated “bias”

Para 11 “If it was learned counsel’s posturing antics, aimed at bench-hunting or bench-hopping (or should we say, bench-avoiding), we would not allow that. Affronts, jibes and carefully and consciously planned snubs could not deter us, from discharging our onerous responsibility. We could at any time, during the course of hearing, walk out and make way, for another Bench to decide the matter, if ever we felt that, that would be the righteous course to follow. Whether or not, it would be better for another Bench to hear this case, will emerge from the conclusions, we will draw, in the course of the present determination.”

Para 17 “There is no escape from, acceptance, or obedience, or compliance of an order passed by the Supreme Court, which is the final and the highest Court, in the country. Where would we find ourselves, if the Parliament or a State Legislature insists, that a statutory provision struck down as unconstitutional, is valid? Or, if a decision rendered by the Supreme Court, in exercise of its original jurisdiction, is not accepted for compliance, by either the Government of India, and/or one or the other State Government(s) concerned? What if, the concerned government or instrumentality, chooses not to give effect to a Court order, declaring the fundamental right of a citizen? Or, a determination rendered by a Court to give effect to a legal right, is not acceptable for compliance? Where would we be, if decisions on private disputes rendered between private individuals, are not complied with? “

Para 20 “During our entire careers as Advocates practicing before the High Court and before this Court, and as Judges of different High Courts, as Chief Justices of High Courts in different States, and also, as Judges of this Court, we have yet to experience a demeanour of defiance, similar to the one adopted by SIRECL or SHICL or their promoter and directors.”

Para 41 The bona fides of the above submission, are difficult to fathom. It seems to us, that rather than the petitioner tendering his explanation to this Court, for not complying with the orders passed by it, the petitioner’s counsel were posing a question to this Court to explain to them, the legitimacy of the procedure adopted by the Court. In our understanding, learned counsel who represented the petitioner, were surely insincere to the cause of justice, when they drummed their assertions, without blinking an eye; since they were aware, that the factual position was otherwise.

For learned counsel for the petitioner, to advance such submissions, to state the least, was unimaginable. Both Mr. Ram Jethmalani and Dr. Rajeev Dhawan, were lead counsel representing the contemnors in the contempt proceedings. They surely ought to have known better, because they had appeared in the contempt proceedings, in the defence of the contemnors. It is not for a Court, to tender any explanation to any litigant, or to his counsel. Accordingly, it should never be considered as obligatory, on the part of this Court, to tender any such explanation. Undoubtedly, it is open to a party to seek review, of an order passed by this Court, under Article 137 of the Constitution of India. Or to file a curative petition, after a review petition had been rejected, as laid down by this Court in Rupa Ashok Hurra’s case ,if it is felt that a serious mistake had been committed.

Para 54 “Despite affording the contemnors close to 40 hearings, and despite putting them to terms which ought to have shown them, that leniency would not be extended forever, the contemnors have remained adamant, and steadfast.

Considering the attitude of the petitioner before this Court, one wonders what would happen to the judicial system, if every Court order had to be implemented, in the manner as the one in hand.

Para 56 “One of the emphatic contentions advanced by some of the learned counsel for the petitioner was, that execution of a money-decree by way of arrest was a procedure “unknown to law”. Recourse to arrest of an individual for

recovery of money, according to one learned counsel, constituted a “draconian order”. During the course of their submissions, learned counsel for the petitioner, chose to address the Court by using language, which we had not heard (either as practicing Advocates, or even as Judges in the High Courts or this Court). We would, however, unhesitatingly state, that it is not possible for us to accept, that learned counsel who addressed the instant submission, were unaware of the relevant provisions of law. It is however interesting to notice, that in the written submissions handed over to us during the course of hearing, reference was actually made to such a provision. It was asserted in the written submissions prepared by Mr. Ram Jethmalani, that “No imprisonment for failure to comply with a decree or order for payment of money can be inflicted on a person liable to pay in compliance, without complying with the conditions of Section 51 proviso (b) of the CPC.”. A contradiction in terms. But there were many such contradictions, even on facts. A new phase of advocacy seems to have dawned.”

Para 78” While arguing on merits, the very first plea advanced on behalf of the petitioner was, that the order of detention dated 4.3.2014 was passed all of a sudden, without affording any opportunity to the petitioner. Dr. Rajeev Dhawan, learned Senior Counsel, who spearheaded submissions on the instant issue, informed this Court, that an order passed without affording an opportunity of hearing, by any authority whosoever (including this Court), would be constitutionally unacceptable, and therefore void. The order dated 4.3.2014, according to learned Senior Counsel, was passed without affording the petitioner any opportunity to know why, and also, without any effective opportunity to respond to, whatever was the basis of passing such order. The petitioner, according to learned counsel, is till date not aware of the reasons which had prompted this Court to pass the impugned order dated 4.3.2014. He apologized to us,

while informing us, that he had no option but to be blunt. Referring to the impugned order, he reiterated, “Your Lordships have passed a draconian order”. Learned Senior Counsel in the above context, asserted, that this Court had made a “…terrible terrible mistake…, which needed to be corrected…”. In this behalf his submission was, that “…to err was human…” and his advice was, that “... it is imperative for you, to correct this blunder...”. In supporting the above contention advanced by Dr. Rajeev Dhawan, Mr. Ram Jethmalani, learned Senior Counsel, also representing the petitioner, submitted, that “… the whole Bar was shell-shocked…”, when this Court out of the blue, directed the arrest of the petitioner, without affording him any opportunity to state his case. It was the contention of the learned Senior Counsel, that the order passed by this Court on 4.3.2014 was “…extremely disturbing…”. It was submitted, that there was no hearing of the matter. Suddenly on the conclusion of the day’s hearing on 4.3.2014, “… when there was still much to be said…”, a judicial order was passed, to the detriment of the petitioner “… depriving him of his civil liberties…”. The order, it was contended, “… was an absolute nullity…”. Learned counsel advised the Court, “… humility was the greatest attribute of human resource…”, and as such, “… you must have the courage to accept, that the order dated 4.3.2014 was a nullity in law..., and you should have the courage to recall your void order…”. We were also advised, that the mandate expressed in Article 142 of the Constitution of India (under which provision, the order dated 4.3.2014, was passed), “… was to do justice according to law, and not by whim or caprice...”. During the course of hearing, learned counsel for the petitioner, addressed a number of queries to the Bench. Has any person ever been committed to jail, without knowing what offence he had committed? The whole of the criminal law is codified, has anybody ever been incarcerated, except according to the procedure laid down in the Cr.P.C.? What offence, punishable under what provision of law, has the petitioner committed, that you have sent him to jail? Can an order of arrest and detention be passed orally…, without there being any writing…, without there being any notice…, without any opportunity to reply to the same? “… You have done all this, and more…”, we were told. What has been done by this Court on 4.3.2014, according to learned counsel, was a blunder which needed to be revised. Dr. Rajeev Dhawan then affirmed, confirmed and repeated what his colleague had submitted. He informed us, “… Mr. Ram Jethmalani is right… we all make mistakes...”. He went on to state “… we tell very rarely, what we have had to tell this Bench, that it has gone terribly [terribly] wrong...” He, however, reminded us, that every extraordinary situation, has to be dealt with, in an

equally extraordinary manner i.e., in exactly the manner he had done. By informing the Court upfront, that it had erred, and therefore, the mistake committed by it, needed to be corrected, Mr. Ram Jethmalani in the above context told the Court, “Acknowledgement of a mistake enhances the prestige of the Court. I hope your Lordships will acknowledge this mistake.”

Para 79 “Seriously, we were taken aback by the ferocity with which, the above submissions were advanced. Had we been a part of the audience, we would have acclaimed the courage and the capacity of learned Senior Counsel, to be able to call a spade a spade. We would have felt, that their eminence was rightfully bestowed on them, and well deserved. That of course, would have been subject to the condition, that what was sought to be conveyed through erudite grandiloquence, was factually correct. Question therefore that needs to be considered is, whether the above submissions made by the learned counsel for the petitioner, are based on a truthful foundation. If their assertions are correct, we would concede at the beginning, that their inferences would have to be accepted as correct.”

Para 81 “Before examining the veracity of the submissions advanced by the learned Senior Counsel for the petitioner, we would unhesitatingly concede, that they were correct on one aspect of the matter. That it was an extraordinary situation. For many [many] years now, ever since we moved from the Bar to the Bench, we were the ones who were posing the questions, and the warring factions projecting their conflicting claims before us, were obliged to respond.

Now for once, questions were being posed by a litigant asking the Court, for its response. Not that we find anything wrong with that, only that we too were shell-shocked, that we had committed a blunder, as to be informed by learned counsel, that we had passed a void order, that needed to be corrected. We would like to acknowledge, that all this was possible because of the legal acumen possessed by learned Senior Counsel. If what was stated was correct, no Court would have any hesitation to correct such an error. The Court was an unconnected disinterested party. The Court would neither gain nor loose, if the contentions advanced by the petitioner, were to be accepted. In such an eventuality, by rendering the correction, the purpose of law would be served, justice would be done. We would never ever, refrain from rising to such an occasion. But if the factual position on the basis whereof the assertions were made, was found to be incorrect, learned Senior Counsel would most definitely have committed a terrible professional mistake. We say so, because Mr. Ram Jethmalani and Dr. Rajeev Dhawan, learned Senior Counsel, attended each date of hearing, of the proceedings in Contempt Petition (Civil) nos. 412 and 413 of 2012 and Contempt Petition (Civil) no. 260 of 2013, and were personally aware of the day to day happenings

Para 112 “ The observations recorded in the above judgment are fully applicable, to the mannerism and demeanour of the petitioner – Mr. Subrata Roy Sahara and some of the learned Senior Counsel. We would have declined to recuse from the matter, even if the “other side”, had been a private party. For, our oath of office requires us to discharge our obligations, without fear or favour. We therefore also commend to all Courts, to similarly repulse all baseless and unfounded insinuations, unless of course, they should not be hearing a particular matter, for reasons of their direct or indirect involvement. The benchmark, that justice must not only be done but should also appear to be done, has to be preserved at all costs.”

Para 147. “The number of similar litigants, as the parties in this group of cases, is on the increase. They derive their strength from abuse of the legal process. Counsels are available, if the litigant is willing to pay their fee. Their percentage is slightly higher at the lower levels of the judicial hierarchy, and almost non-existent at the level of the Supreme Court. One wonders, what it is, that a Judge should be made of, to deal with such litigants, who have nothing to lose. What is the level of merit, grit and composure required, to stand up to the pressures of today’s litigants? What is it that is needed to bear the affront, scorn and ridicule hurled at officers presiding over Courts? Surely one would need superhumans to handle the emerging pressures on the judicial system. The resultant duress is grueling. One would hope for support for officers presiding over Courts, from the legal fraternity, as also, from the superior judiciary upto the highest level. Then and only then, will it be possible to maintain equilibrium, essential to deal with complicated disputations, which arise for determination all the time, irrespective of the level and the stature, of the Court concerned. And also, to deal with such litigants”