VIDEO-RECORDING OF PROCEEDINGS OF COURTS AND TRIBUNALS – A PANACEA FOR THE ILLS WHICH INDIAN JUDICIARY FACES TODAY.
Mathews J Nedumpara
What prompts me to pen these few lines is a query from one of the few law students who started interning with me recently. The query was, what is the inspiration for me to initiate the campaign titled National Lawyers’ Campaign for Judicial Transparency and Reforms and the video-recording of proceedings of all Courts and Tribunals in the country as its prime objective.
- I had no difficulty to answer the query because of the injustice which I personally had to undergo, for, the Judges enjoy absolute immunity in the discharge of their official function and for all practical purposes the judgment of the Supreme Court in K. Veeraswami v. Union Of India & Ors., (1991) 3 SCC 655, even from penal laws of the country.
- I happened to invite the wrath of Justice Mohit Shah, the then Chief Justice of the Bombay High Court as I, unable to resist my righteous indignation that the entire justice delivery system, particularly in the higher judiciary, is being polluted, for, conduits, fearing none, operate with impunity, came to address a confidential letter to high constitutional functionaries, the then President, Prime Minister, Chief Justice of India, Governor of Maharashtra et al, about a conduit who claimed he could buy justice. What I addressed confidentially did not remain confidential. To my great shock, I was officially informed by the office of the Governor of Maharashtra that my said complaint has been forwarded to the Registrar General of the Bombay High Court for necessary action. Even before I received the said communication, I could see a marked difference in the approach of Chief Justice Mohit Shah towards me.
- While matters stood thus, during the course of the hearing of a case under the SARFAESI Act where I was representing an MSME, Dr. Birendra Saraf, counsel for the Janakalyan Bank, made a submission in the open Court that I had called his client Shri Tambe, AGM of the Bank, on 08.03.13 from my cell number and impersonated Justice Vazifdar. Dr. Saraf later sought to fortify the said allegation, when challenged, by an affidavit dated 25.03.13 of Shri Tambe wherein he attributed to me having uttered from my phone, “I am Vazifdar here, Mathews is before me, ask your advocate to call me”. Unbelievable the allegations though, the Chief Justice Mohit Shah ordered the service providers to produce the call records, which they did, supported by an affidavit. I too, in the meanwhile, secured the call records from my service provider, which made me feel reassured that I had not made any call to Shri Tambe but, on the contrary, I had only sent a SMS stating:
Since the hon’ble CJ is not sitting, I am moving the praecipe before the DB of hon’ble justice Vazifdar. Kindly treat this sms as notice. I will tell so to the hon’ble court as well. When am literally in the court and has given notice of the NOM which am mentioning of which notice has been given to you, if u proceed to harass my client, then, that would constitute criminal contempt of HC. Mathews J Nedumpara”_
The call records came as a big relief to me since to save my client from being dispossessed of his residential home, I would not have hesitated to call the Bank officer to communicate the direction of Justice Vazifdar to inform the Bank that I will be mentioning the matter, which was not on board, to be taken on board.
- The call records produced by the service providers, Vodafone of mine and Idea Cellular of Shri Tambe, revealed that I did not at all call Shri Tambe, but it was Shri Tambe who had called me nine times, in response to my SMS, which included seven missed calls. The allegation of impersonation of Justice Vazifdar became a big news. Chief Justice Mohit Shah by order dated 16.06.13 directed the Advocate General to assist the Court. The Court Room was packed with lawyers and public and literally everybody from the press. I asserted, literally hundred times, that I did not call Shri Tambe; that Shri Tambe who filed a false affidavit alleging that I had called him was the one who had called me; that he by filing such an affidavit has committed perjury and he be proceeded against, so too Dr. Saraf for making a reckless allegation, which he did with the sole intention to damage my reputation. In the crowded Court Room with the pressmen in large numbers, Chief Justice Mohit Shah had no other option than to accept my plea that I did not call Shri Tambe and to proceed against him for perjury. But what happened thereafter will shock the conscience of every right thinking person. Instead of proceeding against Shri Tambe, Chief Justice Mohit Shah issued notice against me for contempt of Court proceeding, observing that the call records produced before him indicated that there was ‘contact’ between the two cell numbers. Chief Justice Mohit Shah, unthinkable though, failed to notice that there was ‘contact’ because Shri Tambe had called me; that I had not called him, and if I had not called him, it is impossible for me to impersonate Justice Vazifdar. He also failed to understand that in view of the message clearly conveyed in the SMS, there was absolutely no room for any impersonation!
- What happened in the Court of Chief Justice Mohit Shah, as above, is betrayal of justice which shocked me, too dreadfully. I am sure, most of those who read this article would be shocked as much as me. This incident made me think for days and months, as to how to prevent injustice happening in front of the eyes of hundreds of people; and the wrong-doer occupying the chair of Daniel, nay, the Almighty, escaping with impunity? I felt that the concept of absolute judicial immunity is extremely dangerous and Judges should be accountable for what they do from the seat of justice, like any other trustee of power. But if I were to make a campaign demanding judicial accountability, it will be a subject too unknown to the common man to understand. It came to my mind that the real solution is video-recording of Court proceedings and making the same available to the litigant public which would make every participant in the judicial process feel accountable and act fairly – the Judge, counsel on both sides, the parties and the witnesses. I had to face two other contempt of Court proceedings in my 35 years of practice as a lawyer, all after having landed in Mumbai by sheer accident to represent the causes of my clients, in the eyes of many, in my avatar as an activist.
- The allegations in the other contempt of Court proceedings are that I insisted my part to be heard and in doing so I have acted disrespectfully to the Court. The said allegations are so vague and could be made against anyone and at any time, unlike the “Phone case” above where the facts are ascertainable. I realized that any lawyer who invites the wrath of a section of Judges is vulnerable for contempt on the face of the Court. I also realized that presence of a large crowd in a Court acts as a protection from being falsely implicated and the contra that a thinly crowded Court is a death trap. Chief Justice of India Khehar (CJI) and Justice V.M. Kanade of the Bombay High Court, I believe, wanted to haul me up for contempt of Court, but I escaped because of my sixth sense, nay, blessings of providence. For Justice Kanade I was a sworn enemy because I felt that His Lordship’s son practising in the Bombay High Court where he is a senior Judge has caused irreparable injury to the institution; so too to His Lordship and his son, who is only of my son’s age. In the fond hope that Justice Kanade would seek voluntary transfer to some other High Court for his own interest; so too of his son, I had made a request to His Lordship to seek transfer to some other High Court.
- On 10.06.16, before Shri Justice Kanade was to rise for the day at 5.00 p.m., I stood up to request the Court to suspend the sentence awarded to my client Dr. Rebello, who was convicted for contempt of Court. I appeared along with my associates S/Shri Adhikari, Mrs. Rohini Amin, Shri R.R. Nair. The Court Room was near empty except the Court Officer and the Peon. No sooner I mentioned the case, without any provocation, Justice Kanade said “you keep quiet …I will Call the police”. It immediately struck me that His Lordship said so to provoke me for an exchange of words and clamp upon me contempt in the face of the Court. I remained as cool as a cucumber, restrained Shri Adhikari from retorting and walked out of the Court.
- The other incident was before CJI Khehar, as His Lordship then was. An SLP under the SARFAESI Act in which I appeared for the borrower was listed at Serial No.12. No sooner I stood up to address the Court when the case was called out, a booming and extremely friendly Justice Khehar told me in a most polite way “Mr. Nedumpura”, for, His Lordship always addresses me so and not as Nedumpara, “Can you wait for some time, we will hear you at length”. The excessive friendliness on the part of His Lordship came as a shock to me. I said “Why should Your Lordship ask me that, is it not my duty to wait”. Justice Khehar had no reason to be so good to me because I had invited his displeasure by seeking His Lordship’s recusal in the NJAC case. In the NJAC case I had questioned the maintainability of the PIL by SCAORA and insisted that the said question be determined as a preliminary issue. I had also pleaded that if the PIL by SCAORA is maintainable, were not the lawyers from different parts of the country entitled to be heard, assuming that lawyers are the real stakeholders and not the lawyers in the Supreme Court who are there. I even said that the so-called PIL is only to please Their Lordships, for, the same is considered to be a petition filed on behalf of the Judges. I did ask, who are the real stakeholders? Are not the public at large and if they are, then would not they ought to be heard? Accepting this proposition only, suggestions from public was called for.
- From the unexpected friendliness of Justice Khehar, I could feel that something is in the offing. As cases after cases were called out and heard, the crowd in the Court Room became thin. Therefore, after the first list of 53 cases were over, I stood up and requested that my case be taken up and heard. I told the Court that I woke up at 3.00 a.m., that without having even breakfast I am before the Court and that my case be heard. Then also Justice Khehar told me that “Your case will be taken up soon, please wait”. But unlike in the morning session, His Lordship was not friendly, but was serious. The Supplementary List was getting over, the crowd in the Court was becoming thinner and thinner. So I stood up again to make a request to take up my matter. This time Justice Khehar was unfriendly and sternly told me, “Wait, we will take up your matter”. At last, all cases were called out. I, my associate Mr. Philip and my Peon were the only souls in the Court. Justice Khehar told me, “Mr. Nedumpura, you are famous, we will make you all the more famous, we are going to impose a cost of Rs.1 crore.” I realized that my apprehensions were real. Justice Khehar wanted to provoke me. I am fairly known to be an outspoken person, a fearless man. I did not utter a word; I just stood with folded hands, praying Almighty to save me. Justice Khehar dismissed my SLP imposing a cost of Rs.1 lakh. Since I kept my composure, His Lordship did not get an opportunity to haul up me for contempt in the face of the Court. There is yet another incident which, for considerations of reticence I do not venture to narrate here.
- Till I raised my voice against corruption in the Temples of Justice, which I did not dare in the initial 25 years of my practice, I did not face the kind of persecution narrated above. No words can describe the agony, pain, stress and the sleepless nights I had, but I have a sense of satisfaction, a bit of an achievement, namely, that I could bring to the public domain the nepotism and favouritism which the collegium system of appointment of Judges constitutes to be; so too of the monopoly of the Bench and the Bar by a few judicial and legal dynasties and the scandalous practice of the kith and kin of Judges practising in the very same Court where their relative dispenses justice, a scandal of monumental proportion which even my worst enemies cannot find fault with me for bringing to the public domain. I have no illwill with those who have harmed me, sought to destroy my reputation; so too my practice. To forgive them offers me no difficulty, for, “they not know what they were doing”.
_-Mathews J Nedumpara