Stepping into the Supreme Court premises for the first time as a student of law was an exhilarating experience. It literally gave goose-bumps. We had read landmark judgments given by this great institution which kept ‘rule of law’ and ‘equality’ secure in the stormiest periods.
Covering the Supreme Court on a day-to-day basis for the last two decades has been no less exhilarating. The court always gives a distinct impression that it strictly adheres, or as far as possible, to the maxim: “you be ever so high, the law is above you”.
These immortal words by 17th century English churchman and historian Thomas Fuller read, “Be ye ever so high, still the law is above you.” Celebrated English judge Lord Alfred Thompson Denning, in the case Goriet vs Union of Postal Workers, modified the maxim a bit in 1977 and wrote, “Be you ever so high, the law is above you.”
In the last 38 years, Supreme Court judges have used it in umpteen number of cases where the high and mighty attempted to dodge the long arm of the law by hiring top legal brains.
There have been several examples in the last two decades where the court remained unfazed by the tactics of litigants and accused to overawe the court and seek recusal of judges by alleging bias against them. The intention was to see an “uncomfortable” judge recuse from hearing their case.
The Sohrabuddin Sheikh fake encounter case is one such. It was being heard by a bench headed by Justice Aftab Alam. Then Gujarat minister Amit Shah was granted bail but asked to stay out of the state to allow a fair probe.
Later on, there were pleas for cancellation of Shah’s bail. His counsel Ram Jethmalani argued “bias” on Justice Alam’s part. It was unprecedented to find a counsel as famous, respected and knowledgeable as Jethmalani telling a judge bluntly that it would be better if he recused from the hearing.
It embarrassed the judge. But Justice Alam kept his cool and adhered to the “you be ever so high, the law is above you” principle and decided the pleas.
Sahara chief Subrata Roy was sent to jail on March 4 last year for continuously violating SC orders directing two group companies to refund Rs 24,000 crore with interest to three crore investors through market regulator Sebi. True, the court found that the money was raised through one-time fully convertible debentures in a suspicious manner. But there was hardly any complaint from investors against the Sahara group companies.
Roy had hired top legal brains. One of them, Rajeev Dhavan, argued bias against a bench of Justices S Radhakrishnan and J S Khehar and used Jethmalani’s ‘blunt’ method to seek their recusal from the case.
Justice Khehar demolished the arguments of bias and said it was a handle used by senior advocates to browbeat the judges. The bench rendered a judgment, but the ‘bias’ argument left it very anguished. The judges knew it was a ‘bench-hunting’ tactic. Yet, they decided to recuse from the case.
In both these cases, bias was attributed directly to the judges in open court. Yet, the CJIs felt that rule of law did not warrant shifting the case to another bench.
The trend was somewhat clouded by the recent decision of the CJI who changed the bench that first heard the anticipatory bail plea of social activist Teesta Setalvad and her husband Javed Anand, who were accused of misusing donations received for welfare of riot victims.
A bench of Justices S J Mukhopadhaya and N V Ramana heard the pleas for close to half-an-hour. It did ask some uncomfortable questions but allowed Setalvad’s counsel to file additional documents. The bench stayed her arrest for six days and promised that there would be justice.
The uncomfortable questions appeared to have unnerved advocates who were present in large numbers in the court room to express solidarity with the human rights activist. Immediately after the case was adjourned, a focused campaign was unleashed.
It portrayed an apprehension that the judges could possibly be biased against Setalvad because PM Narendra Modi had attended the wedding of their children. And who does not know the bitter tussle between Setalvad and the then Gujarat government headed by Modi.
Extending the same rule, would the campaign be not termed biased? Were the advocates behind the campaign not very friendly with Setalvad? Well, no one can dare ask such questions to human rights activists.
A new bench of Justices Dipak Misra and Adarsh Goel further extended the stay on the couple’s arrest and promised them anticipatory bail. Given the nature of the case against Setalvad, the decision is correct. But this could also have been the decision of the bench of Justices Mukhopadhaya and Ramana.
The manner in which the bench was changed, just because of a few uncomfortable questions, reminded us of the SC’s golden words in S P Gupta case (AIR 1982 SC 149), “Judges should be stern stuff and tough fire, unbending before power, economic or political, and they must uphold the core principle of rule of law which says ‘be you ever so high, the law is above you’.”
TOI | Feb 23, 2015
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