IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINAY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. ______ OF 2018
Mathews J Nedumpara
Aged: 59 Years,
Occ. Practicing Advocate
Adult, Indian Inhabitant,
residing at Harbour Heights,
12-F, 12th Floor, Sassoon Docks,
Colaba, Mumbai-400 005. ……Petitioner
The Hon’ble Shri Justice S J Kathawalla,
The Hon’ble High Court of
Judicature at Bombay, Mumbai-36. …..Respondent
THE HONOURABLE THE CHIEF JUSTICE
AND THE OTHER HONOURABLE PUISNE
JUDGES OF THIS HONOURABLE COURT
HUMBLE PETITION OF THE PETITIONER ABOVE NAMED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
MOST RESPECTFULLY SHEWETH:
1. The instant petitioner, an advocate who enrolled with the Bar Council of Kerala in the year 1984, is inspired to institute the instant Writ Petition by the oft quoted words of Lokmanya Bal Gangadhar Tilak inscribed in Court No.49 of the High Court of Bombay: “In spite of the verdict of the Jury, I maintain that I am innocent. There are higher powers that rule the destiny of men and nations and it may be the will of providence that the cause which I represent may prosper more by my suffering than my remaining free.”
- Shri Bal Gangadhar Tilak was innocent of the charges levelled against him. But he was found guilty by the Bombay High Court, after a trial. The instant Petitioner, like Tilak is innocent of the accusations made against him by Hon’ble Shri Justice Kathawala, in his order dated 5th of March, 2018. The Petitioner considers that Lokmanya Tilak was more fortunate than him in the sense that the legend was convicted after a charge was framed against him and was allowed an opportunity to defend himself. In the Petitioner’s case, no charges were framed against him, much less, informed of the allegations constituting the charge. He was not told of the evidence or materials, if any, based on which the allegations against him were founded; none existed. He had no opportunity to contradict the evidence appearing against him. There was no trial. There was no prosecutor; there were no witnesses. He was condemned without a trial; without being heard. All by way of an order dated 5th March 2018, in Notice of Motion No. 706/2018 instituted by Shri Vilas Gaokar, seeking the recall of various orders passed by Hon’ble Shri Justice Kathawala in Commercial Suit No. 614/2017 instituted against him by one Shri Anand Agarwal.
- What was the crime which the Petitioner committed? He accepted a brief of a man complaining that he was denied the principles of natural justice by Hon’ble Shri Justice Kathawala; that he became so fearful of his Lordship because in a Civil Suit instituted by the Plaintiff therein, a money lender claiming interest at 36 percent, when he appeared on the very first day he was threatened to be sent to jail unless he paid the Plaintiff; that his Lordship heard his case during vacation even after the change of roster, His Lordship conducted the hearing in camera. The Petitioner as a lawyer is duty bound to accept the brief of even a traitor, anti-national, murderer, rapist, a scoundrel, a rascal. Even the devil is entitled to an advocate, advocatus diaboli. A copy of the aforesaid order dated 05.03.2018 is produced as Exhibit-“A”
- The said order was widely reported in the print and electronic media both in English and in vernacular. Photocopy of the report published in the Free Press Journal, Live Law and the Indian Express is provided as Exhibit-“B” “C” & “D” respectively.
- The newspapers in publishing Exhibit-“B” “C” & “D”, as aforesaid, only merely reported what constitutes to be just the preface to the judgment. It is only profitable to extract the first few paragraphs of the aforesaid judgment verbatim. The Petitioner begs to do so as infra:
“1. At this point of time, the Judiciary is mired in challenges of a very grave nature, perhaps like never before. It is being observed that there is, amongst some litigants and their Advocates, virtually no fear or hesitation in making false statements and misrepresentations before the Court, which should under any and all circumstances be dealt with the iron hand of the judiciary with zero tolerance for such blatantly unethical and mala-fide behavior.
- The dignity and respect of the Court along with its prescribed procedures is being unabashedly violated by certain litigants who are using foul and unfair means to demean and denounce the august Judiciary by making frivolous allegations against the Judges, and/or their opponents and their Advocates, with a view to rescind and back-track on solemn undertakings and statements earlier made in Court. This malicious modus operandi of certain dishonest litigants is absolutely unacceptable, as it seeks to subvert the very foundations of justice that the Judiciary is committed to uphold. With no merit in their case, and in a bid to avert an unfavourable order being passed against them, such dishonest litigants collude with their Advocates to use underhanded means to ensure favourable orders and their consequent success in litigation instituted or defended by them.”
- Certain Advocates sadly seem to have forgotten the code of eithcs that enjoins upon all Advocates, that they are Officers of the Court first and Advocates of their clients only thereafter. It is anguishing to note that such Advocates facilitate the unethical misadventures of their clients, often encouraging their clients’ dishonest practices, causing grave stress to the Judiciary, and unfortunately bringing the entire judicial system to disrepute. It has become a vicious and despicable cycle wherein dishonest litigants with malafide intentions seek out unethical Advocates, who for hefty fee and the lure of attracting similar new and unscrupulous clients, conveniently choose to disregard and/or forget all ethics and the code of conduct enjoined upon this august profession. It is with a heavy heart, that Courts at times note that clients have no hesitation in replacing good and honest Advocates, with unscrupulous ones, who go to any dishonest lengths, merely to secure favourable orders for their clients.
- The present case and the conduct of the Defendant No. 1 / Applicant strongly affirms the aforesaid observations. The Defendant No.1 Shri Vilas Chandrakant Gaokar had through out the hearing of his case, remained present and appeared before the Court with his Counsel as well as the Advocate on record. He took the assistance of this Court in resolving his issues pertaining to the Suit, gave undertakings in pursuance of it, obtained consent orders and also acted in consonance with the same. However, Defendant No.1 breached one of the undertaking given by him and being fully aware of the consequences thereof, he craftily and quickly changed his Advocates ( who had already been previously changed) and briefed Counsel Mr. Mathew Nedumparra, who in turn advised him to file this Notice of Motion. In this Notice of Motion, he has stated that all the previous orders passed by this Court are null and void for reasons which are utterly false and dishonest to the knowledge of his client Shri Vilas Chandrakant Gaokar.
- This malicious and mala-fide Notice of Motion sets out/alleges totally baseless and contemptible allegations against this Court, which are completely unacceptable and are a mere shenanigan to circumvent the action of contempt of Court. This reprehensible attempt at intimidating and manipulating this Court into not taking any action under the Law of Contempt calls for censure in the strongest terms. In an attempt to cover up the mala-fide intent, which is crystal clear and amply evident, the litigant Shri Vilas Chandrakant Gaokar dishonestly/falsely reiterates in the Application that he holds the Court in the highest esteem and respects its integrity. It will not be out of place to mention here that in an earlier matter before me, in which Mr. Mathew Nedumpurra appeared for one of the parties, he, after repeatedly reiterating that he holds the Court in the highest esteem and respects its integrity, had proceeded to pray that I recuse myself from all the matters in which he appears. That Application was, however, rejected by a detailed Judgment dated 23rd December, 2014, reported in 2015(2) Bom.C.R.247. 6. Therefore, such unethical and unacceptable behaviour needs to be met with the iron hand of the Court. The Courts must tackle all such unethical conduct fearlessly by taking stern action against litigants, and if need be their unethical Advocates as well. A failure to do so, will result in seriously jeopardising the Judiciary and will erode the Rule of Law, which is absolutely integral to the justice system in the country. The Courts must act swiftly and firmly, without getting intimidated by false and frivolous charges, and utterly baseless, malicious and dishonest allegations that are levelled against the Judges.
- The observations of Hon’ble Shri Justice Kathawala is ex facie defamatory because it is untrue and rendered in gross violation of the principles of natural justice in as much as the said observations were made without affording the Petitioner any opportunity to be heard.
- Ubi jus ibi remedium is a fundamental principle of law. The Petitioner, an advocate of more than 33 years of standing, one who is respected and adored by a large number of lawyers and litigants and lay people, particularly, for his humble efforts to serve greater transparency and accountability in the higher judiciary is deeply hurt by the said observations of Hon’ble Shri Justice Kathawala as they are defamatory and untrue. The Petitioner considers that his fundamental rights as enshrined in the part III of the Constitution of India is infringed. If these allegations which were published in the print and electronic media were made in any proceeding or discussions other than in a judicial proceedings, the Petitioner is well certain about the remedies the law has vested in him. The Petitioner could have well instituted proceedings, both civil and criminal for the vindication of his rights. However, he is in great distress as the sweeping allegations against him are part of a judicial pronouncement in a case between Vilas Gaokar, his client, the Applicant in Notice of Motion (L) No.706/2017, and one Anand Aggarwal, his opponent. Hereto annexed and marked Exhibit-“E” is the Copy of the Notice of Motion (L) No. 706 of 2017. The Applicant Shri Vilas Chandrakant Gaokar has since appealed against the Order dated 05.03.2018 passed by Hon’ble Shri Justice Kathawala in Appeal (L) No. 160 of 2018. Hereto annexed and marked Exhibit-“F” is the Copy of the Appeal (L) No. 160 of 2018 (without Exhibits).
- The rights conferred upon the Petitioner, and for that matter upon every citizen of this country, under part III of the Constitution are inviolable even by a constitutional amendment which requires the 2/3rd majority of both houses of the parliament and majority of the state legislature. The fundamental rights of the Petitioner, nay, a citizen cannot be taken away or abridged even by an Act of Parliament or a statutory instrument. The rights conferred under Part III of the Constitution are subject to reasonable restrictions in the larger public interest. But where a lawyer, a citizen, is defamed by a judicial order without following the principles of natural justice, the abrogation of his fundamental right is not a reasonable one permitted by law. The fundamental rights are inalienable, primordial and transcendental and it cannot be taken away or abridged except by a law which is just, fair and reasonable. That is the ratio of Maneka Gandhi, Golaknath and Coelho. And there can be no two opinions about it. The question that therefore arises is: Could it be that a citizen whose fundamental rights are violated by a judicial order be without legal remedies? The answer to the instant question can only be an emphatic “NO.” In other words, where a judicial order results in the violation of the fundamental rights of a citizen such an order ought to be amenable to challenge like an Act of Parliament or an executive action.
- Where the judicial order which results in the violation of the fundamental rights of the citizen is at the hands of a subordinate court or tribunal, it offers no difficulty. The party aggrieved can institute a suit for redressal of his grievance. He can seek all the remedies which the law will invest in him, namely the common law, equitable and even prerogative remedies. In other words, Constitutive remedies and executory remedies. He can institute a suit. He can invoke the jurisdiction of the High Court under Article 226 and even of the Supreme Court under Articles 32 and 136. But, where a citizen’s fundamental right is violated by a judicial order of the superior courts, namely of the High Courts or the Supreme Court, what remedies are open to him?
- The violation of the fundamental rights of the citizen, no matter whether by superior courts or subordinate courts or tribunals, is violation of the fundamental rights itself and the law should provide equal remedies as in the case of violation by the executive or the legislature. However, going by the various judicial pronouncements, the legal position is not clear, manifestly because they are inconsistent.
- A nine Judge Constitution Bench of the Supreme Court in Naresh Shridhar Mirajkar v State of Maharashtra (AIR 1967 SC 1) sought to make a distinction between the judicial orders of inferior courts and tribunals, which are violative of the fundamental rights of citizens and of superior courts. It held that while writs in the nature of Certiorari, Prohibition, Mandamus, etc. will lie against the orders and findings of the inferior courts and tribunals, which violates the fundamental rights, no such writs will lie against the orders and judgments of the superior courts, with much respect, unfathomable though. The Court held though, not authoritatively, that superior courts are not “State” within the meaning of Article 12. And therefore, the prohibition under Article 13 (2) is not attracted. The necessary corollary of the said judgment is that while superior courts are not “State”, the subordinate courts are. In other words, while the subordinate courts or tribunals are amenable to judicial review, the superior courts are not. A writ of Certiorari will lie to quash an order of a subordinate court or tribunal which is violative of the fundamental rights. However, no writ of certiorari will lie where the order is of a superior court, namely, of the High Court and the Supreme Court, where it is violative of the fundamental rights of the citizen. The proposition as aforesaid ex facie is reductio ad absurdum, an argument to absurdity.
- The nine judge Constitution Bench was seemingly conscious of the absurdity of the proposition that superior courts are not “State”. The court was therefore cautious. In the said judgment, in para 16 thereof the court had cautioned that the discussion therein should not be interpreted as an affirmative decision on any issue other than the narrow one which was required to be decided, namely, whether the court could direct, (orally though), to the press not to report the proceedings held in the open court. The said judgment constitutes to be a precedent only for the limited proposition that no writ of certiorari will lie to quash a judicial order of the Supreme Court or that of another High Court or that of a coordinate bench of the same High Court. In arriving at the said conclusion, the nine judge constitution Bench had gone by the practice followed by the English Courts in granting the writ of Certiorari. Nothing more, nothing less. The Petitioner begs to submit that even if no certiorari will lie to quash the proceedings or order of the Supreme Court or of another High Court or of a coordinate bench of the same High Court, an order of the High Court which is violative of fundamental rights and therefore void within the meaning of Article 13(2) of the Constitution could be challenged, by way of a collateral proceedings, in addition to the procedure of review or by way of direct proceedings such as an appeal or revision, provided, the law so provides for. In so far as a person who is not a party to the proceedings before a superior court as the instant Petitioner who is not a party to Suit No.614 of 2017 between Anand Agarwal and Vilas Gaokar, is concerned, the proceedings such as review or appeal could only be of very limited avail. The reason is simple: a person who feels aggrieved that his fundamental rights are violated by a judicial order ought to be entitled to institute a suit clearly stating the cause of action which the law has vested in him, because of his fundamental rights being violated by a judicial order and the remedies which the law provides for him. He is entitled to institute a suit. And a suit alone could be the most efficacious procedure/remedy. In the instant case the observations of Hon’ble Shri Justice Kathawala as aforesaid is per se defamatory and is violative of the Petitioner’s fundamental rights as enshrined in Articles 14, 19 and 21. The Petitioner is willing to assume for argument sake that no writ of Certiorari will lie, nay for that matter no other writ will lie to redress the violation of his fundamental rights by virtue of the aforesaid judgment of Hon’ble Shri Justice Kathawala. An appeal will be no remedy since, the Petitioner can only think of an appeal after he has lost his plea in an original proceedings, whether civil or criminal. A citizen is entitled to a fair trial/ an original proceedings and then an appeal if the law provides for one.
- The nine Judge Constitution Bench in Mirajkar’s case did not consider at all the maintainability of a suit at the hands of a person whose fundamental rights are violated by a judicial order and the nature of the remedies he could seek in a suit particularly in the nature of declaration and damages. Because such an issue fall for its consideration. The judgment in Mirajkar’s case is by a bench of nine Judges and therefore the ratio, if any, laid down in the said judgment is of great authoritativeness. There can be no two opinions about it. The Supreme Court in many a decisions, namely Hurra v. Hurra, Smt. Triveniben V/s State of Gujarat, Ajit Kumar Barat V/s ITA and so too the High Courts and in particular, the High Court of Delhi in C.S. Karnan v Union of India took, erroneous though, the judgment in Mirajkar’s case as a precedent for the proposition that higher judiciary is not a “State” and no person could seek any remedy in law on the premise that his fundamental right is infringed by a judicial order.
- The said view was taken without taking notice of the word of caution as contained in paragraph 16 of Mirajkar’s case. To repeat, the nine judge Bench had warned that none of the observations made by them be treated as precedent, but be taken as mere deliberations which is neither a precedent nor an obiter dicta.
- The Petitioner holds Hon’ble Shri Justice Kathawala in high esteem and has a great amount of affection and awe towards his Lordship even while he has been defamed without any rhyme or reason by his Lordship’s observations, which was widely reported in newspapers, vernacular as well as English. “Lord forgive them for they not know what they are doing”, from the cross resonates the ears of the Petitioner. So too the words of Lokmanya Tilak, which the Petitioner had quoted at the very outset. The injustice suffered by the Petitioner, the Petitioner believes, is part of the inscrutable ways of the Almighty, for him, an instrument of larger public good.
- Power corrupts, and absolute power corrupts absolutely, said Lord Akton. Though it may be truer with the executive and the legislature, it cannot be said that the judiciary is entirely immune to the said adage. Judicial orders particularly those rendered behind the back of the parties affected have led to the violation of fundamental rights of citizens, perhaps in millions. The Bombay High Court in various PILs ordered the demolition of the shanties of the slum dwellers without they being on the party array or without hearing them. Every time a petition under Article 226 is dismissed without affording a due opportunity to be heard and without the actual controversy being decided, but on technical grounds the hapless citizens fundamental rights are violated by virtue of a judicial order. So too when cases are decided without the parties being allowed to adduce evidence, without even a reasoned judgement. Similarly, when writ petitions under Article 32 are dismissed without the citizen being afforded a due hearing and without a speaking order, the fundamental rights of the citizens are infringed. However, for all practical purposes he has no remedies.
- The reason is simple, there is a perception, widespread, and the Petitioner would maintain it to be erroneous though, that no citizen could ever assert that his fundamental rights are violated because of a judicial order. The judiciary exercises the sovereign power of “we the people.” They are the trustees of the people. They are accountable to the people. Therefore, where their actions entail the violation of the fundamental rights of the people, law should provide a remedy. The law indeed does in as much as Article 13 (2) of the Constitution declares that, “The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.” By no stretch of imagination it could be assumed that the higher judiciary does not fall within the ambit of the word “State”. It does. If even a Constitutional amendment where it is in violation of the fundamental rights of the citizen could be declared as void by virtue of Article 13 (2), nothing could be more preposterous than to assume that the higher judiciary is not “State.” A judicial order cannot be placed on a higher pedestal than a constitutional amendment.
- The Petitioner therefore firmly believes that he is entitled a declaration that the higher judiciary is a state and the order of the High Courts and Supreme Court where it is in violation of the fundamental rights of the citizens, as the aforesaid judgment of Hon’ble Shri Justice Kathawala, the law will provide a remedy. Even a writ will lie. But even if it is to be held that no writ will lie and that a writ can only lie against subordinate courts and tribunals, the ordinary remedies will lie and in particular a civil suit to enforce it.
The grounds based on which the remedies sought for as infra has been stated with fair elaboration along with statement of facts. There is no need therefore to state the grounds once again except to indulge in avoidable repetition. Nonetheless, to obviate a technically deficiency that no grounds are urged which could invite a plausible plea that there is no proper pleadings, the Petitioner beg to state the grounds seriatim as infra:
A. The Petitioners fundamental rights as enshrined in Part III of Constitution in particular under Article 14, 19 & 21 are infringed by virtue of the order of Justice Kathawalla wherein his Lordship for reasons difficult to be fathomed made sweeping allegations against Petitioner terming him to be unethical, having accepted a brief of builder for hefty fees. A judgement is a public document. The public at large have right to know its contents and they commit no offence of defamation by reporting it accurately. The Petitioner has no grievance against Free Press Journal, Indian Express, Live Law and a few other vernacular dailies which publish the sweeping, defamatory ex-facie observations of Justice Kathawalla particularly in opening para Nos. 1 to 6 of his order dated 05.03.2018 namely Exhibit-“A”. The newspapers reported the observation of Justice Kathawalla as if it were the findings in judicial proceedings where he is a respondent and was afforded due opportunity to be heard, while it was not. The Respondent No.1 in suit no 614 of 2017 came to the Petitioner seeking his professional help, making out grievance that his lawyer is not able to effectively represent him, the lawyer being “afraid” of Justice Kathawalla. His further grievance was that his lordship threatened him to be sent to jail in a civil suit at the hands of the money lender on the very 1st day of his appearance in furtherance to notice which was sought to be served through police, a procedure not contemplated by Order V of CPC. His further grievance was that his Lordship retained the said case even after change of roster, heard the case in camera during vacations and passed an order containing the terms of settlement though the procedure to be followed is merely to record the settlement which the parties have arrived out of court. In short, the grievance is that Justice Kathawalla did not follow the procedure as contained in CPC so too that the various orders at his Lordships hands, particularly of 12.05.2017 does not constitute to be the true records which in the eye of law is most sacrosanct and of uncontrovertible verity. The Petitioner can be no judge of the truth or otherwise of what he was told by his client. The Petitioners had no reason to absolutely disbelieve his clients. Therefore the Petitioner adviced his client to file an application for rectification of the records and minutes of the proceedings, which bind the parties to their respective rights and obligations as well. The Petitioner also recommended Ms. Rohini Amin to be engaged as Advocate on record since his existing lawyer had already secured discharge. In acting as aforesaid the Petitioner has only discharged his duty, much sacrosanct and indispensable in the adversioral system of administration of justice which we have inherited from the British. For, the Bar and the Bench are the 2 wheels of the chariot of justice, the sweeping observations of Justice Kathawalla which were widely published in Newspapers has resulted in great legal injury, his fundamental and legal rights are infringed including his right to life so too the right to practice the profession of Law. The Petitioner is certainly not vindictive, on the contrary, being an ardent follower of the philosophy of Buddha, Christ and Gandhi, is more than willing to forgive. However his readiness to forgive which he could practice almost instantaneously will not take away his right to vindicate himself. That is possible only if he is able to obtain a declaration at the hands of this court or incase this court being inclined to relegate him to civil court or at the hands of this court a declaration to the effect that he did not do anything blameworthy, he is willing to give up the nominal symbolic damages of Re 1/- which he has sought. He cannot even think of a criminal prosecution of his Lordship Justice Kathawalla in the wildest of his imagination.
THE PETITIONER, THEREFORE, PRAYS THAT THIS HON’BLE COURT BE GRACIOUSLY PLEASED TO:
a. To declare that the citizen whose fundamental rights are infringed by a judicial order is entitled to all legal remedies, common law, equitable and declaratory, compensation and damages, so too, even criminal action like such infringement at the hands of legislature, executive and fellow citizens, and to assume otherwise will render Part III of the Constitution nugatory.
b. In the event of prayer (a) above being granted in favour of the Petitioner, he is entitled to initiate civil and even criminal proceedings against Respondent No 1 (though the Petitioner intends to institute no criminal proceedings) in as much as the observations of Justice Kathawalla, one rendered behind his back is ex-facie false and defamatory, even assuming that the said observations were made without any ulterior or malicious intentions.
c. To declare that no distinction can be made between subordinate judiciary and superior judiciary in so far as the prohibition contained in Article 13(2) of the Constitution is concerned and that the superior judiciary also falls within the ambit of “State” under Article 12 just like the subordinate judiciary.
d. To grant a compensation of Re. 1/- as damages, though the damage suffered by the Petitioner by virtue of the Order at Exhibit-A, dated 05.03.2018 at the hands of Justice Kathawalla is irreparable and cannot be adequately compensated in terms of money.
e. Without prejudice to the reliefs (a) to (d) above and in furtherance thereof relegate the Petitioner to the civil court for the enforcement of the remedies vested in him, his fundamental rights being violated by virtue of Ex P1 at the hands of Justice Kathawalla, Respondent No.1 above.
f. Any other order as this Hon’ble Court may deem fit in the interest of Justice.
Mathews J Nedumpara
C.J JOVESON, RR.NAIR &
AMRITPAL SINGH KHALSA
Advocates for Petitioner