Split verdict in Savukku Shankar case an aberration, Justice GR Swaminathan should have recused: Madras High Court

The Madras High Court on Thursday said that the split verdict delivered by a Division Bench of the High Court last month in the Habeas Corpus petition (HCP) filed by YouTuber Savukku Shankar’s mother challenging his detention was an “aberration,” and that such order was in breach of legal principles..Justice G Jayachandran, who was the third judge appointed by Acting Chief Justice R Mahadevan to hear the matter following the split verdict, referred the matter to a regular Division Bench of the Madras High Court that currently holds the assignment to hear all habeas corpus petitions.Justice Jayachandran also formulated two points of references for the division bench that comprises of Justices MS Ramesh and Sunder Mohan, to decide. The two questions are: - Whether an HCP can be decided without giving the respondents a chance to file a counter affidavit? - Whether a decision taken by a judge on merits and another judge refusing to pass orders citing lack of documents should be considered as a judgement in whole or a mere expression?.Pertinently, the single-judge said that Justice GR Swaminathan. who was part of the vacation bench which heard the matter earlier, should have recused from the case since he himself had claimed in open court that some persons had visited him and tried to influence him..On May 24 this year, a vacation bench of Justices GR Swaminathan and PB Balaji had delivered a split verdict.Justice Swaminathan held that Shankar’s detention was illegal and had set it aside.Justice Swaminathan had also said in the open court that two highly placed persons had visited him and cautioned him against passing orders.However, Justice Balaji had refrained from passing any order saying that in his opinion, before deciding the matter on merits, the TN police should be permitted to file a counter affidavit..On Thursday, following an ultimatum from Justice Jayachandran, the TN police filed its counter affidavit opposing the HCP.Additional Advocate General J Ravindran, who appeared for the police, and Senior Counsel S Prabakaran, who appeared for the de facto complainant Veeralakshmi, argued that Shankar was a habitual offender and his detention must not be quashed. Both the lawyers also argued that since May 24, the two judges had had a difference of opinion and since no conclusive order had been passed, the matter should now be heard by a Division Bench holding the HCP portfolio.Senior Counsel John R Sathyan, who appeared for Shankar’s mother however, said that a total of five judges hearing the matter was a futile exercise and a waste of the judiciary’s time..While initially, Justice Jayachandran was insistent that the TN police should not delay the matter and should file the counter affidavit, he subsequently acknowledged that it had also been incorrect on part of the vacation bench to pass the order that it had.He also said that had some persons met Justice Swaminathan in his chambers to discuss the matter, he should have recused from hearing it..“This must be the first time in the history of judiciary that one judge of a division bench has passed an order on merits in a matter and his brother judge has refused to pass orders citing ack of documents on record. It cannot be considered as an order. It is an aberration and not in the interest of law,” Justice Jayachandran said..The judge also expressed “sadness” over the turn of events in the case - both the delay by the Tamil Nadu police in filing its counter affidavit as well as Justice Swaminathan passing orders without waiting for such counter while knowing fully well that his partner on the bench, the puisne judge, Justice PB Balaji had made it clear that the lack of the counter affidavit was a handicap and he could not pass any orders.“I am sad. The court should behave like a court. We should give a quietus to this. We are dealing with the fundamental rights of a person. We have to follow the rule of law,” Justice Jayachandran said.The judge also said that all law officers must be “faithful to the law,” irrespective of who were the “men in power.”