"High Court, Supreme Court under attack by persons in power:" AP High Court rebukes YS Jaganmohan Reddy, expresses disapproval at SC Collegium

"Firstly, attack was made on Legislative Council, thereafter i.e., State Election Commission; and, now the High Court of Andhra Pradesh and even the Supreme Court is under attack by persons who are in power."
"High Court, Supreme Court under attack by persons in power:" AP High Court rebukes YS Jaganmohan Reddy, expresses disapproval at SC Collegium
Justice Rakesh Kumar and Justice D Ramesh, Andhra Pradesh High Courtsupreme court collegium

In an unprecedented order, the Andhra Pradesh (AP) High Court expressed its strong disapproval at the Supreme Court Collegium in relation to transfer of two Chief Justices while also castigating the YS Jaganmohan Reddy-led regime in the State for its apparent attempts to undermine the High Court.

A plea presented on behalf of the State government for the recusal of a AP High Court Judge was what led to scathing observations against the Andhra Pradesh government and orders for the registration of a complaint to initiate criminal prosecution.

The order also saw the Court taking exception to the manner in which the Supreme Court Collegium recommended the transfer two High Court Chief Justices - Justice RS Chauhan of Telangana High Court and Justice JK Maheshwari of Andhra Pradesh High Court.

The Court noted that transfer recommendations came immediately after Chief Minister YS Jaganmohan Reddy wrote a letter to CJI SA Bobde criticising the functioning of AP High Court. This meant the CM got what he wanted because the High Court was seized of the issue of speeding up criminal cases against MPs/ MLAs and a slew of such cases are pending against YS Jaganmohan Reddy, the Court said.

Justice Rakesh Kumar himself authored the lead judgment rejecting the application moved for his recusal in a case involving a challenge to the auction of State land.

While taking strong exception to the recusal plea moved by Additional Advocate General (AAG) Sudhakar Reddy, Justice Kumar did not hold back in accusing the government of interfering with the functioning of other Constitutional institutions.

"Firstly, attack was made on Legislative Council, thereafter another Constitutional body, i.e., State Election Commission; and, now the High Court of Andhra Pradesh and even the Supreme Court is under attack by persons, who are in power," the judgment passed today read.

The delay in disposing of criminal cases against the Chief Minister was also criticised elaborately, with the Court commenting,

"Surprisingly, though cases are pending since 2011 and onwards, till date, in none of the cases, charges have been framed. Is it not a mockery with the system?"

In a brief concurring opinion, Justice D Ramesh observed, "the present situation has created a piquant situation, which would have been avoided had the State was given proper legal advice."

The controversy

The State, through AAG Sudhakar Reddy, alleged that in an earlier hearing in the case, Justice Rakesh Kumar had commented,

“... how could the Government auction the properties of the State, had Government become bankrupt to auction Government properties. We will declare there is break down of constitutional machinery in the State and hand over administration to the Central Government.”

The AAG added that this observation has been reported verbatim in newspapers.

The Judge, however, denied having made such a comment. The other counsel present also submitted that the Court had made no such comment, and argued that the AAG's recusal petition was contemptuous for containing false statements and for maligning the judiciary.

The Court concurred that the allegations made were derogatory and prima facie contemptuous. It is unfortunate that such a petition was filed, not by a private party, but on behalf the State, the Court added.

Justice Rakesh Kumar also narrated the following as his recollection of the relevant events:

"Without commenting on the merit of the case, prima facie some doubt arose in the mind of the Court that whether an elected Government, which is elected for only five years, can have a right to transfer title of land of the State. If it is the property of the State, certainly every citizen of the State has got some interest in such property and being trustee, that too, for five years, the Government may not either sell or transfer title of the property. If it is not objected in that event there is possibility that a time may come when the State will be termed as a State without land. All those doubts were going in the mind of the Court, and as such, the Court (Hon’ble Sri Justice Rakesh Kumar) wanted to know regarding the financial condition of the State. It is not a case that interim order was granted by a Bench in which I (Hon’ble Sri Justice Rakesh Kumar) was one of the Members. After the interim order was passed by a Coordinate Bench of this Court, the Bench presided over by me (Hon’ble Sri Justice Rakesh Kumar) had taken up the matter on several dates. Counter affidavits were also filed. But, final hearing was yet to commence. In the meanwhile, the aforesaid interlocutory application was filed."

Judges cannot even go to media for defence

Justice Kumar went on to assert that when questions are raised over the honesty, integrity, sincerity and impartiality of a judge without any reasonable basis, the judge has every right to refer to undisputed facts in his defence. He added that this is crucial to upholding the majesty of law.

"A Judge has got no platform to show his impartiality and other aforesaid essence. While on oath as a Judge, we cannot even go to media for our defence. But, at the same time with a view to dispel any doubt supposed to be created in the mind of citizen in general against the judicial system, it is the duty cast on a Judge to uphold the majesty of law and take initiation against such person making such allegation without any reasonable basis," the Court said.

Further, it was noted that if any person had a grievance against a judge, the remedy is before a larger Bench or a higher court. Any deviation or venture to malign a judge without sound basis is contemptuous, Justice Kumar opined.

Protection of citizens' rights in Andhra Pradesh by High Court has become very difficult

Justice Kumar commented that there is a disturbing trend noticed where influential or powerful people are under the impression that they have every privilege to do anything as per their convenience and to the peril of system or poor citizen.

The judge added, "with heavy heart" that the protection of the fundamental rights of citizens in Andhra Pradesh by the High Court has become "very difficult."

In this regard, the order recorded that the judge has noticed blantant violations of rights under Articles 21 (life and personal liberty) and 22 (protection against preventive detention) of the Constitution

"As a Judge, I have come across several writ petitions with complaint that persons, without following due process of law, were picked up by the State through its police", Justice Rakesh Kumar says, going on to add that, "One can draw an adverse inference against the acts/excesses by the police in the State of Andhra Pradesh."

Further, Justice Rakesh Kumar also said that he came across a number of cases where apprehensions were raised over the dispossession of land without complying with the due process of law.

High Court is being undermined

Going further, the Judge also slammed the State for its move to abolish the Legislative Council and for its differences with the functioning of the State Election Commission.

"One may not forget that this is only State, where the Hon’ble AP Legislative Council when it had not agreed to proceed with the tune of Hon’ble Legislative Assembly’s decision regarding establishment of three capitals in one State, the Government of Andhra Pradesh recommended for abolition of Legislative Council itself. Even the office of State Election Commissioner, which is one of the Constitutional organs, was not spared, since the State Election Commissioner was not proceeding as per the wishes of the State Government," the order read.

Having overreached and undermined that above two Constitutional institutions in this manner, the High Court is being made the next target, the Court said.

Letter to CJI Bobde may have emboldened the State's Bureaucrats

Justice Kumar also mused whether the present recusal plea was filed since Chief Minister Reddy had found apparent success in addressing a letter to the Chief Justice of India making allegations against the High Court, its Chief Justice as well as a senior Judge of the Supreme Court.

"For a while I was astonished with such behaviour of State but immediately thereafter, I perceived that bureaucrats of this State have been emboldened after apparent success of the Hon’ble Chief Minister of the State of Andhra Pradesh in addressing a letter to the Hon’ble the Chief Justice of India and making it public, making allegation against one of the senior Judges of Hon’ble Supreme Court, the Hon’ble Chief Justice of A.P High Court and number of sitting Judges of A.P High Court with their name," the Court said.

He went on to observe that people may now get the impression that the Collegium's proposal to transfer the High Court's Chief Justice may have been prompted by the Chief Minister's letter to CJI Bobde.

However, the transfer would likely delay the conduct of criminal cases pending against the Chief Minister, the High Court remarked. The same can be said of cases filed against the government's move to trifurcate the capital of Andhra Pradesh, it was added.

"Whether by this act of sending unceremonious letter to the Hon’ble Chief Justice of India, the Hon’ble Chief Minister of Andhra Pradesh will get final relief or not but fact remains that he succeeded in getting undue advantage at the present moment. People may draw an inference as if after the so called letter of Hon’ble Chief Minister, the two Chief Justices, i.e., Chief Justice of High Court for the State of Telangana and Chief Justice of High Court of AP have been transferred. By the said transfer, naturally, the cases pending in the Court of Special Judge for CBI cases in Hyderabad against Sri Y.S.Jagan Mohan Reddy, present Chief Minister and others may be delayed and monitoring by the Hon’ble Supreme Court in W.P (Civil) No.699 of 2016 may hamper for the time being. Similarly, by the transfer of Chief Justice of AP High Court, the Government of Andhra Pradesh is bound to get undue benefit," read the order.

The Court minced no words stating that the Supreme Court Collegium should be more transparent and should consider that fact that High Court judges also hold Constitutional posts.

"I am not raising any question on the transfer of Hon’ble Chief Justices, either of the High Court of Andhra Pradesh or of the High Court for the State of Telangana, but, at the same time, I am constrained to observe that transfer of High Court Judges or its Chief Justices may reflect some transparency and for betterment or upliftment of the administration of justice. After all, they are also holding Constitutional post like member of Hon’ble Supreme Court Collegium."

Disturbing information on Googling "Khaidi 6093"

Justice Rakesh Kumar also proceeded to question the manner in which criminal cases pending against Chief Minister YS Jagan Mohan Reddy were being handled by the police.

In this regard, he highlighted that an order passed earlier this year by the Supreme Court directing High Courts to monitor and expedite criminal trials against legislators was followed by the closure of 7-8 criminal cases against CM Reddy.

"The aforesaid act of Andhra Pradesh police reflects as to how head of the Police, i.e., the Director General of Police, Government of Andhra Pradesh, is functioning as per the dictate of the Government, not in upholding rule of law in the State," the Court opined.

The Court also recorded in some detail the cases registered against Reddy, including by the CBI and the ED.

Justice Kumar proceeded to narrate that he found disturbing information on CM Reddy following a google search prompted by the Chief Minister's letter to CJI Bobde.

"Till the publication of letter, dated 06.10.2020, of the Hon’ble Chief Minister of Andhra Pradesh, I was not having much information about him. But, immediately thereafter, I became curious to know about him. Subsequently, I was told that if I go on site ‘Google’ and type only “Khaidi No.6093”, I can get many information. Accordingly, I did the same thing and thereafter I got very disturbing information," the order said.

Restricting post-retirement expectations would bolster independence of Judiciary

Before concluding his elaborate opinion, Justice Rakesh Kumar also touched upon the topic of judges and post-retirement engagements. He opined that it would help maintain the independence of the judiciary if judges refrained from considering such engagements for at least a year after retirement.

"I am of the opinion that for a situation, which is prevailing, today in which impartiality, integrity, honesty, unbiased etc., in judicial system is being raised, to some extent we are also responsible. Several instances we have noticed that immediately after demitting the office of Judge, the Judges are provided with new assignment. If we start to restrict our expectation of reassignment/re-employment at least for a period of one year after retirement, I don’t think that any political party, even party in power can undermine the independence of judiciary and we may be in a position to uphold the majesty of law without being influenced by any one", the order read.

He also commented that while many of his observations may not be in consonance with technicalities, he was constrained to record the stated facts in an endeavour to uphold the majesty of law and given that his impartiality had been questioned by the government on my face in the present proceeding while he was on the verge of his retirement.

Court cannot be frightened by any such action of the State

Terming the recusal plea as totally untenable and malicious, the same was rejected with the Court observing that if it starts entertaining such petitions, then it would not be able to dispense justice in any case.

"If such petitions are entertained, it will amount to allowing the party for hunting the Bench. Such an action by the State was not expected, but in this State, as I have observed the circumstances herein above, everything can be possible. However, at the same time, the Court cannot be frightened by any such action of the State."

Justice D Ramesh directed that an explanation be filed within six weeks as to why contempt should not be initiated in the matter. The Registrar General was directed to file a complaint for initiation of criminal prosecution. The matter has been listed to be taken up next in February 2021.

The Court has not made any observations on the merits of the main case, the order clarified.

[Read order]

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