In an astonishing incident, the Maharashtra State Government has alleged that a senior High Court judge is ‘biased’ against it and sought transfer of its cases from his Court. While the judge declined to recuse himself, the Chief Justice intervened and transferred the cases to another Judge. The move has not gone down well with the Advocates and the Bar Association and they have unanimously condemned the incident
Allegation of “serious bias” against Hon’ble Justice Abhay Oka
It is customary from disgruntled litigants to nurture feelings that a particular Judge is ‘biased’ against them and to seek transfer of their cases to some other judge.
However, such conduct is not expected from a responsible litigant such as the State Government.
Yet, in an unprecedented act, Ashutosh Kumbhakoni, the Advocate General of the State of Maharashtra, submitted an application on 24 August 2017 for transfer of cases relating to noise pollution and silent zones from the Court of Hon’ble Justice Abhay Oka.
It was claimed in the application that the learned Judge harbors “serious bias” against the State.
The application was made by the learned Advocate General on the instructions of the Home Department of the State Government.
The application stated as follows:
“With utmost respect and utmost regards towards Hon’ble Shri Justice AS Oka, it is humbly submitted that during the course of hearing the Hon’ble judge has expressed such views which clearly demonstrate that the Hon’ble judge is biased in subject matter of these petitions.”
The application gave examples of the alleged bias by citing Justice Oka’s views on the Dahi Handi festival and the recently amended Noise Pollution Rules on declaration of silence zones.
Justice Oka had criticised the government on Dahi Handi and on silence zones.
Justice Oka is shocked and declines to recuse himself from the cases
Understandably, the learned Judge was upset at the allegation of the State.
“We are really shocked with the contents of the application. There is a specific allegation against me that I am biased against the state government. But we won’t get provoked by such allegations,” Justice Oka was reported as saying.
“I will not recuse myself from hearing the petitions just because the government is levelling allegations against me,” he added.
However, Chief Justice Manjula Chellur transferred the cases to another Bench
The State approached the Hon’ble Chief Justice Manjula Chellur with the request for transfer.
The Hon’ble Chief Justice accepted the application and transferred the cases to another Bench.
Eminent lawyers fume at the irresponsible conduct of the State Government
Mumbai Mirror collated the views of leading lawyers, all of whom were unanimous in their condemnation of the State Government’s move.
Senior Advocate Janak Dwarkadas said:
“It is the most condemnable conduct on the part of the State Government. This is nothing but an attempt to ‘forum shop’ to avoid an inconvenient bench.”
Yug Mohit Chaudhry, the noted Human rights lawyer, said the state should not have stooped to the level of unscrupulous litigants.
“There are two aspects to this. The first is filing of the transfer petition. It is a tactic that is indulged in by private litigants of the most unscrupulous kind. In theory, the State is meant to be above vested interests. When it stoops to this level it is a cause of great alarm. Because in any matter, again theoretically, the state is not the loser by any judgement, because the judgement delivers justice and State is always the gainer when justice is served. State has no vested interest in any particular outcome. Now when the state does this to defeat a particular outcome, to cater to a political constituency, for vote bank, i.e the Ganesh Mandals, it is akin to stooping to the level of unscrupulous litigants. It is a cause of grave alarm, it’s shocking and troubling.
“The second aspect is the merits of the transfer. Justice Oka has been hearing this case for a long time, is this the first time he has taken a view against the state? No. But this is the first time that he perhaps naively indicated his order before he had passed it and it gave them a chance to defeat the order, by filing the transfer application.”
Advocate Shrikant Bhatt described the state’s move as a serious breach of judicial etiquette and a matter of grave concern.
“I am really shocked by the actions of the state and the Advocate General. He has not acted on the moral and legal duty imposed upon him, he is not a spokesman for the state, he is the protector of the rights of the citizens, and he is a former HC judge, he knows this. This is an abject surrender to the will of some people in Mantralaya.”
Senior counsel Amit Desai warned that the State’s actions could have serious consequences.
“The state is the largest litigant or party to most litigation. If the state starts alleging bias in these kind of matters, where the petitioners is seeking to uphold the law, it has some serious implications for the judiciary and justice system,” he said.
Senior Advocate Dinyar Madon said the judges often open their minds and raise queries, but for the state to see that as an opportunity to seek a new bench is not acceptable.
“It is very wrong on the part of state Government to have done that. They are the government and not some party-in-person. There is nothing wrong in judge expressing a prima facie view.”
Bombay Bar Association to pass resolution condemning the incident
The Bombay Bar Association has convened an Extra Ordinary General on 28 August, 2017 at 2:30 pm to discuss the issue.
The allegation of bias by the State Government and the transfer of cases has been described as “unfortunate”.
It is stated that Justice Oka is a very senior and extremely respected, upright Judge of our Court who has spent a lifetime in the advancement of justice dispensation. The members of the Bar have high regards and respect for Justice Oka.
An appropriate resolution in connection with the incident including expressing solidarity with the learned Judge and reiterating complete faith and confidence of the Bar in him is expected to be passed by the Bombay Bar Association.
Time has come to kick out Devendra Ministry. He has lost his credibility ?
OFFHAND
The reported episode is reminiscent of, and prima facie compares with what happened – when the BAR similarly revolted against the aspersions cast against the famous Lentin Commission way back in 1987. A narration of that event may be seen to have been given in another context – see the Post on Facebook (my timeline) of August 24.
What obviously the state government has abysmally failed to realize and committed a fatal folly is, – as remorsefully reacted to by the top-notch constitutional law expert, NAP, in that other context, – any such wayward instance goes to undermine/tarnish, unwittingly so, the dignity and due respect for the judiciary, and in turn, impact the core of a healthy legal system,- the very backbone of the democratic set up of the nation / the ultimate welfare of THE PEOPLE.
Hon’ble Chief Justice should not have accepted the transfer request. It is her duty to protect the sub-ordinates. Bar Council should also pass a Resolution against her. Matter should also be taken to the Supreme Court.
Hon. Justice Mr. Oka is indeed a fair judge, besides State cannot take to the kind of unfair practices against judiciary. I strongly condemn as a Bombay Bar Assn member and as an advocate of Bombay high court. I am sorry how a non person like a state can stoop these kind of practices. Further, these kinds of practices by the state obviously is the most unhealthy sign.
I find if the party in power resorts to these kind of tactics, obvious the party is practicing politics against
sensible norms what a state ought to be.
I urge upon the chief minister being a lawyer himself seek restoration of the case before hon judge Mr Oka forthwith and for which he shall instruct AG Kumbakone to seek restoration of the noise pollution cases before hon. justice Mr. Oka , by moving his application before hon CJ Ms Manjulaji.
very sad things seem happening today in BJP and shiva sena run government in Maharashtra. Parties shall not stoop to these kind of tactics when running the state as an elected government if this happens people may not vote them again to power obvious.
In this connection, I like to quote, what president Mr Dwight D Eisenhower said , ‘A people (or a person) that values the ‘privileges above principles soon loses both’.
I am not sure such a request by an ordinary litigant would have been entertained.
How did the State Government predict that the Honourable Judge is biased ? The hearings are done in open court and the parties are free to argue their cases. The state government should have pleaded its case properly and then let the verdict come. The government if found the verdict biased or even otherwise not acceptable to it then it could have filed appeal before division bench. Since serious allegations were made, in the interest of justice the Honourable Chief Justice had no alternative but to transfer the case.