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PUCL Bulletin, January 2004

Uttarakhand Agitation Fall Out

Plea for impeachment of judges

-- By Ravi Kiran Jain

This meeting of the Uttarakhand Samyukta Sangharsh Morcha, held on October 2, 2003 resolves as follows:

The meeting expresses its anguish over the unprecedented situation obtaining in Uttaranchal. It is about something, which was never seen to have happened anywhere else in the country.

It is about the deep corrosion which the faith of the people of Uttaranchal in the state judiciary has suffered because of two developments:

(l) a judgment delivered on July 22, 2003, by a division bench, consisting of Justice PC Verma and Justice M.M. Ghildiyal, of the Uttaranchal High Court, discharging the then district magistrate of Muzaffarnagar, Anant Kumar Singh, and

(2) an order passed by the same bench on August 29, 2003, revoking the aforesaid judgment. This meeting is of the firm opinion that the Judgment as well as the revocation order amounted to acts, which constitute “misbehaviour” under Article 124 (5) of the Constitution. This meeting is also of the belief that these two decisions were the outcome of some behind-the-scenes questionable understanding between the two Hon’ble Judges and the state government to clear the decks for letting Anant Kumar Singh off the hook.

The result has been a widespread expression of anger and protests among the people of Uttaranchal against the aforesaid two decisions, and this has led to demonstrations, road blockades, and shouting of slogans against the High Court—something which has been unprecedented in the history of independent India. These developments constitute a deep blot on the face of the Indian judiciary, and for this the two Hon’ble Judges cannot escape the moral responsibility inasmuch as their “misbehaviour” in conducting the case in the manner in which they did is at the root of the people’s total loss of faith in them. Obviously, it raises a question-mark on their continuing as judges of the Uttaranchal High Court even for a single day, because Uttaranchal being a nascent state, if the people of the state have lost their faith in the higher judiciary, it is a serious thing which can and should in no case be allowed to persist for a single day more.

As is well known, on the night of October 1 and morning of October 2, 1994, thousands of Uttarakhand agitators, who were going to stage a rally in Delhi, were stopped at Rampur Tiraha in Muzaffarnagar and were subjected to inhuman atrocities by the police. They were shot, women were raped, and molested and belongings of the agitators looted. The incident left behind a deep scar on the psyche of the people of Uttaranchal, and the people of the state have felt all along that unless the culprits of Muzaffarnagar, including Anant Kumar Singh, were punished by law, the emergence of Uttaranchal as a state will remain incomplete. Thus, the clandestine and questionable manner in which the said judgment was delivered on July 22, 2003, has provoked the ire of the people of the state, finding expression since then in public protests and agitations, being covered by the print media extensively. Xerox copies of some of the newspaper clippings are attached to this resolution.

The aforesaid two Judges have lost the confidence of the people of Uttaranchal as one of them, Justice P.C. Verma, recently touched the feet of Chief Minister N.D. Tewari, when he was acting Chief Justice, in a public function thereby lowered the prestige of the office which he was holding, and the other, Justice M.M. Ghildiyal, was himself a counsel before the Allahabad High Court on behalf of Uttaranchal activists. The fact of Justice Ghildiyal appearing in that case as an advocate was well known to the people of Uttaranchal.

His appearance in that case was noticed by the Bench, presided over by Justice R.S. Dhawan in the following words, in Para 218 of that judgment:
“218. While the judgment was reserved, counsel for the petitioners, Messrs M.M. Ghildiyal and Sudhanshu Dhulia, advocates, filed in court a copy of the writ petition at Lucknow in which the CBI has mentioned in its five reports filed as of date...”

In P.K. Ghosh vs J.G. Rajput, AIR 1996 SC 513, the Supreme Court had taken a serious exception to a High Court judge (Justice B.J. Shethna) passing an order in a case in which, before his elevation, he was a counsel. The apex court quashed the order of that High Court judge, and also observed as follows: “We are indeed sad that in these circumstances, Justice B.J. Shethna should have persisted in hearing the contempt petition... We do so with the fervent hope that no such occasions arise in future which may tend to erode the credibility of the course of administration of justice.”

Thus, being earlier a counsel in the Uttaranchal case at the Allahabad High Court, Mr. Justice Ghildiyal committed an act of serious misbehaviour in sitting on the bench along with Justice P.C. Verma to hear the matter relating to Anant Kumar Singh, and for the same reason, Justice P.C. Verma committed an act of serious misbehaviour in sitting on the bench along with Justice Ghildiyal.

It is evident that Anant Kumar Singh had manipulated to win the favour of not only the judiciary but also of the Uttaranchal government in getting judicial reprieve by way of the aforesaid judgment.

The reasons to support this belief, apart from the unethical participation of Justice Ghildiyal in the bench hearing the case and Justice P.C. Verma overlooking it, are:
1. The legal ground on the basis of which Anant Kumar Singh was discharged was not only wholly misconceived but was a result of ignoring of the view taken by the apex court in the case of Anant Kumar Singh himself, as reported in JT 1999 (4) SC 414, that “the question of necessity of sanction need be considered by the sessions judge, if and when raised by the accused.” The said division bench of the Uttaranchal High Court by their judgment dated July 22, 2003, considered this question and decided in favour of Anant Kumar Singh at a pre-trial stage when the matter was still before the special judicial magistrate, which is clearly contrary to the view taken by the apex court.

2. When people made widespread protests against the judgment of the division bench of the Uttaranchal High Court, the Uttaranchal government, instead of challenging the judgment by filing an appeal in the Supreme court, moved a review petition before the said bench, taking the ground that by a notification of the Allahabad High Court, dated 16.1.2002, the jurisdiction relating to the cases pending at the Dehradun special CBI court had been transferred to Ghaziabad special CBI court. This ground had however no legs to stand, because a bare perusal of the Allahabad High Court notification shows that the court at Ghaziabad, which has been created for the area of Muzaffarnagar and nearby districts of UP has been created for the offences committed after the date of the said notification. The offences prior to that date will continue to be dealt with by the courts by the earlier notification. It is apparent that the motive of the government was to wash its hands off the cases pending against the culprits of Rampur Tiraha at Dehradun and thereby throw the ball into the court of the UP government.

In the meantime, the Uttarakhand Mahila Manch and Uttaranchal People’s Union for Civil Liberties (PUCL) filed an intervention application at the Uttaranchal High Court, taking the plea that the review petition of the Uttaranchal state government was based on the afore said misconceived ground with the aforesaid motive.

The Mahila Manch and the PUCL had further raised the plea in the intervention application
(i) that in view of the controversy surrounding them, the two Hon’ble Judges should not hear the review petition of the state government; and

(ii) that if the Uttaranchal government presses its review petition, which was based on a misconceived technical ground, the Mahila Manch and the PUCL would oppose the review of the July 22 judgment on that ground, and file an appeal against the July 22 judgement at the apex court under Article 136 of the Constitution.

i. A number of other review petitions were also filed against the same judgment of July 22. The matters were listed before the same bench on August 29, 2003. A large number of persons from various walks of life had come to the court to watch the proceedings. The judges came to the court-room sharp at 11.00 am and without hearing any counsel of any party, dictated the following order to the steno and left the court-room in a huff:
“In exercise of inherent power to review a judgment delivered under Article 226/227 of the Constitution of India, suo motu reliance is placed on judgments of Apex Court in Shivdeo Singh and others versus State of Punjab and others, reported in AIR 1963 Supreme Court page 1909, Ram Janam Singh versus State of UP and another, reported in AIR 1994 Supreme Court page 1722 and State of Gujarat versus Sardar Begum and others, reported in AIR 1976 Supreme Court page 1695, we recall our judgment and order dated 22.07. 2003 in writ petition for the reason that one of us (Hon’ble M.M. Ghildiyal was counsel in writ petition no. 32982 of 1994, Uttarakhand Sangharsh Samiti, Mussoorie versus State of UP and others and impugned trial emanated in compliance of the order passed in the said writ petition, which has now come to our knowledge. (emphasis supplied).

“Writ petition no. 467 (M/B) of 2003, Anant Kumar Singh” versus The Central Bureau of Investigation, Police Establishment, Dehradun, through its inspector and other is restored to its original number.
List the writ petition in due course before another Bench.”

The Uttarakhand Mahila Manch and the PUCL had also filed an application that the hearing of the review applications be adjourned to enable them to move an application before the Hon’ble Chief Justice to refer the matter to another Bench because, according to them, the two Judges, namely, Justice P.C. Verma and Justice M.M. Ghildiyal, had disentitled themselves from hearing the matter on the aforesaid grounds. When the Judges came to the court-room and passed the aforesaid order, the application of the Mahila Manch and the PUCL stood rejected inasmuch as the two Judges did not give hearing even to their counsel to put this aspect of the matter that the matter should not be disposed of at their hands.

The consequence of the course adopted by the two Judges is that the contention that the State of Uttaranchal was taking wholly a misconceived and mischievous stand of the cases having stood transferred to the Ghaziabad special CBI court in order to wash its hands off, has not yet been judicially examined, and it is giving a handle to the Uttaranchal government to maintain the same stand even now. It is a matter of common knowledge that the Advocate General of Uttaranchal said during a TV interview that the Uttaranchal government would try to get the cases from Ghaziabad transferred back to Dehradun special CBI court. In fact, the question of getting the cases transferred back from Ghaziabad to Dehradun would arise only if they at all had stood transferred to Ghaziabad. As explained above, the effect of the said Allahabad High Court notification is that the cases arising in certain areas of UP after the date of the notification would be tried at Ghaziabad. This clearly means that the cases pending prior to the date of this notification at the Dehradun court, relating to Rampur Tiraha incident, continue to survive before the Dehradun court. A very piquant situation has thus emerged because of the stand of the Uttaranchal government, which is feeling encouraged to maintain it on account of the fact that the two Judges did not choose to examine this stand.

By their said judgment on July 22, discharging Anant Kumar Singh, the Judges suffered a self-inflicted wound. This wound became deeper by another wound, which the Judges inflicted upon them by passing the order of August 29, 2003, in the manner in which they did. Besides that, the two aforesaid judgments also inflicted wounds on the psyche of the people of Uttaranchal. The whole conduct, from July 22 to August 29, 2003, clearly amounted to judicial misdemeanour.

It is significant to note that the Judges in their order dated August 29 2003, have observed that the fact of Hon’ble Justice M.M. Ghildiyal being a counsel in writ petition of the Uttarakhand Sangharsh Samiti (a ground on which the order dated 22.07.03 was recalled) “has now come to our knowledge”. To say that this fact came to their knowledge “now”, besides being an absurdity, added insult to the injury which they had caused to the psyche of the people of Uttaranchal by their earlier judgment of July 22.
The net result is that by their “misbehaviour”, as revealed by the facts above, the two Judges have not only lost the faith of the people of Uttaranchal but also forfeited their right to continue as Judges.

By recalling their judgment of July 22 in the manner they did, the two Judges have only tried to take the people of Uttaranchal for a ride. Their belief was that by recalling their judgment of July 22 they would be able to calm down the resentment of the people against it and put a lid on the highly unethical and improper conduct on their part by delivering the July 22 judgment despite one of the two Judges having been a counsel in the Uttarakhand case earlier. However, the Judges should have realized that the people of Uttaranchal are not so gullible, and they in no case will give up their fight against the injustice meted out to them.

This meeting accordingly resolves that the two Hon’ble Judges should, in the interest of maintaining purity of the judicial system, must forthwith demit their offices on account of their “misbehavior” falling within the ambit of Article 124 (5) of the Constitution, failing which the Uttarakhand Samyukta Sangharsh Morcha would be constrained to start a signature campaign by the members of Parliament for initiating impeachment proceedings. This will be started from November 9, the date on which the state of Uttaranchal was formed. This meeting authorises Rajiv Lochan Shah to send a copy of this resolution, to both the Hon’ble Judges, with a copy endorsed to the Hon’ble Chief Justice of India, and Hon’ble the Chief Justice of the Uttaranchal High Court, with his covering note.

Endorsement
Hon’ble Justice P.C. Verma and Hon’ble Justice M.M. Ghildiyal.
Kindly find enclosed a resolution passed by Uttarakhand Samyukta Sangharsh Morcha on 2nd October, 2003, I have been authored to send it with a respectful suggestion that as both of Uttaranchal, by your misbehaviour about which the resolution was passed, you are respectfully advised to demit your offices failing which the Uttarakhand Samyukta Sangharsh Morcha will start a signature campaign of the MPs to initiate impeachment proceedings against both of your lordships, on 9.11.2003 the day on which the state of Uttaranchal came into existence.

 

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