Is justice on Sale? The Justice Rakesh Kumar order and its ramifications

Bar & Bench September 3 2019
Justice Rakesh Kumar

Vivek Narayan Sharma

The recent allegations of corruption in the judiciary brought to light by Justice Rakesh Kumar of the Patna High Court has developed curiosity amongst one and all. ‘Is justice on sale?’, is the pertinent question each one of us is asking. While many more questions could be raised in the time to come, an analysis of some facts would provide a clear insight on the issue at hand. 

On August 28, 2019, Justice Rakesh Kumar of the Patna High Court took up and disposed of an anticipatory bail plea filed by former IAS officer KP Ramaiah in connection with the multi-crore Bihar Mahadalit Vikas Mission Fund Scam. By an earlier order dated March 23, 2018, Ramaiah’s plea was already dismissed by the High Court.

During the proceeding, Justice Kumar took on record a news report published in Dainik Jagran, whereby, on the date that Ramaiah surrendered before the trial court, the regular Special Judge (Vigilance) went on leave. Thereafter, Ramaiah surrendered and was granted bail by the judge on the same date. 

Looking at the events, Justice Rakesh Kumar opined that the way Ramaiah was granted bail required a deeper probe. Justice Kumar thus ordered an inquiry to be conducted by the District Judge, Patna to check and verify the news report. He also ordered an inquiry as to whether on the date of granting bail, the regular vigilance court was on leave due to a genuine cause or went on leave in a calculated way.

Additionally, the District Judge was also asked to examine the record of cases disposed of by the in-charge judge in the last six months. Justice Kumar took notice of another media report by Republic TV with respect to corruption in the judiciary.

Justice Kumar also spoke of an incident which took place in 1995 when he was the Standing Counsel for the CBI and observed, 

…during holiday period, petition of some coal mafia was served in my residential chamber and I was told that the learned Advocate had already discussed with the then senior-most Judge. He requested to only accompany him to the residence of the said Judge… There were three anticipatory bail petitions… At 11:00 AM, I visited the residential chamber of the Judge, who was senior most Judge on the date of said holiday, since Hon’ble Mr. Justice D.P. Wadhwa (the then Chief Justice) was out of country. Of course, I failed to get those anticipatory bail petitions dismissed, but succeeded to some extent that those anticipatory bail petitioners were transferred to Patna High Court Ranchi Bench, Ranchi. The said judge was none else but a senior Judge from Allahabad High Court.”

Further stating that corruption in "this High Court" was an “open secret”, Justice Rakesh Kumar added, 

“…it is known to everyone that one senior Judge from the Allahabad High Court during Fodder Scam period had got his wife nominated, as Rajya Sabha Member. This was not the end. Again, there was a Judge from Allahabad High Court, who granted bail to an accused, whose record of bail petition was lying in the Chamber of Hon’ble Mr. Justice Akhilesh Chandra (as he then was), who was hearing his bail petition.”

Upon wide media circulation of the above order of Justice Rakesh Kumar, an 11-Judge Bench headed by Chief Justice Amreshwar Pratap Sahi was constituted. This Bench observed that the "uncharity unleashed" by Justice Kumar appeared to be an outcome of "personal prejudice" and that the claims in his order were "full of anguish tending towards vengeance" and not "reform". A sudden leap in the sky through an approach of gaining yellow page fame appears to be one of the motives behind the pronouncement, the Bench said.

Clarifying that it should not be misunderstood to be insensitive or averse to the concerns expressed by Justice Rakesh Kumar, the 11-Judge Bench remarked that it was their "onerous duty" to not allow any irreparable damage by an individual acting on private prejudices.

 “…we believe that in the discharge of our onerous duty to live and stand by the oath that we have taken, we should not hesitate in taking prompt action and allow the recurrence of any such irreparable damaging judicial acts so as to undermine the whole judicial system on the strength of an individual’s private prejudices founded on his perception of past history and relentless obsessions that appear to have been expressed in a language that is not only brine, but is malicious, contumacious, demeaning and completely insensitive to the living and dead alike."

The 11 Judge Bench, at the outset, noted that the order by Justice Rakesh Kumar was passed in a matter which had been disposed of on March 23, 2018 and despite due termination of proceedings then, the single judge got the matter listed before him suo motu on August 28 and passed a judicial order. It was observed that by doing so, Justice Kumar committed "the gravest of error" as he assumed a jurisdiction which was not available to him under any law.

The Bench  also recorded the statement of the court master as to how the matter came to be listed before Justice Rakesh Kumar, the Bench concluded, "In the absence of any judicial proceeding pending or otherwise, there was no occasion for the learned Single Judge to have assumed an authority which he otherwise did not possess on the subject matter either under the Patna High Court Rules or even under the Code of Criminal Procedure."  

It was held that Justice Rakesh Kumar acted completely coram-non-judice and that the order was thus a total nullity in the eyes of law.

“The learned Single Judge has stepped out far ahead and has set an inglorious benchmark in the history of the Patna High Court by wielding his pen like an unmerciful sword as that of a committed revolutionary, who has set out to change the course of history by flouting settled standards of judicial propriety and the sobriety expected of a High Court Judge. The language of the news that has spread like wildfire, is clearly instigating, enough to pollute the readers mind and disrupt healthy social thinking. The tenor and terminology of the expression may not be literally abusive, but are certainly defamatory, uncouth and uncivil."

Analyzing the above fact situation, it is to be noted that a single judge’s order is amenable for challenge on the judicial side before a Division Bench of the High Court and thereafter before a Full Bench. It is difficult to comprehend as to why the Chief Justice of the Patna High Court constituted an 11-Judge Bench in haste. There appears to be no such precedent.

Yesterday, a Three-Judge Bench of the High Court quashed the August 28 order of Justice Rakesh Kumar, holding that the Single Judge completely lacked authority to adjudicate the matter.

Be that as it may, the incidents recorded in the single judge’s order prima facie show the existence of elements of corruption in the local judiciary. Therefore, instead of throwing out the concerns, howsoever badly expressed they were, the Patna High Court should have exercised patience and appointed a central probe agency to investigate the matter. When the cat was already out of the bag, it was unnecessary on the part of the 11 Judge Bench to try to put it back in. This kind of perception has wide ramifications and is not healthy for the judiciary, as a whole. 

I believe that the Chief Justice of India should personally look into this matter and take appropriate steps to stabilize public faith in the judiciary, and also find the truth of the matter. Not to forget that in the recent past, the Supreme Court has looked into allegations of bench fixing and directed investigation in the matter.

The author is an advocate practising at the Supreme Court of India and the Joint Secretary of the Supreme Court Advocates-on-Record Association.

Disclaimer: The views and opinions expressed in this article are those of the author’s and do not necessarily reflect those of Bar & Bench.