Sixty years ago, a Constitution bench of the Supreme Court, headed by Chief Justice Mehr Chand Mahajan, faced an interesting predicament. How was it to deal with an instance where two senior members of the bar sought the transfer of a case from a bench on a flimsy allegation of prejudice? The high court at Nagpur, before which such a contention had been raised, had initiated suo motu contempt action against the two lawyers for having scandalised the court. The accused took the defence that they were unaware such an application could not be made and sought to justify their actions, but to no avail. Eventually, on appeals from their sentences, the SC sustained the order of contempt but charitably permitted the purging of contempt upon unqualified apologies being tendered.
Why would this story be relevant today? Consider the fact that the two advocates in question were M.Y. Shareef, a former minister for law and justice, and B.D. Kathalay, a known legal scholar.
Last week, a host of remarkable judgments were handed down by the SC, ranging from the invalidity of the provision protecting senior government servants from CBI investigation to the validity of constitutional provisions sanctioning the RTE Act. However, the strongest riposte to critics of the SC was posted that day by Justices K.S. Radhakrishnan and J.S. Khehar in slamming the misadventures of both client and counsel of Sahara in attempting to undermine the authority of the court. In a lengthy 207-page judgment, the court, with great dignity and firmness, dealt with the charges heaped against it on behalf of the beleaguered tycoon.
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One of the unfortunate consequences of this litigation was that the normal courtesies of courtroom presentation were abandoned, and even the petition (which directly challenged the court’s earlier order) was finalised by not one, but five separate senior counsel of the court. As submitted by Sebi counsel Arvind Datar, this was the first petition he had seen in his entire career that had been thus settled.
Dealing with the oral submissions made by the counsel, the court reproduced in detail how Sahara’s counsel placed arguments before it. “It seems that our determination to hear the matter marked to us by hon’ble the chief justice, was not palatable to some of the learned counsel for the petitioner,” it said, before recording that both lead counsel accused the bench of prejudice, bias and other “insinuations”.
The court took pains to detail the demeanour of the Sahara companies, referring specifically to the repeated denial of information over two years, and the 35 dates of hearing before the SC prior to the order summoning Subrata Roy. In the course of the hearing, the bench observed, the counsel used language, “which we had not heard (either as practising advocates or even as judges in the high courts or this court)”.
It is necessary to note that the court acknowledged the erudition and reputation of the counsel who called its conduct into question but concluded unequivocally that if the submissions were based on a false foundation, then their professional conduct would be doubted.
However, in the wake of such overwhelming evidence against the Sahara group, and its continuing reprobate conduct, the judges laudably stood strong by their constitutional oath to say: “If it was learned counsel’s posturing antics, aimed at bench-hunting or bench-hopping (or should we say, bench-avoiding), we would not allow that. Affronts, jibes and carefully and consciously planned snubs could not deter us from discharging our onerous responsibility. We could, at any time during the course of hearing, walk out and make way for another bench to decide the matter, if ever we felt that that would be the righteous course to follow.”
What is particularly befitting is the “post-script” in the judgment, where the court laments how frivolous litigation and ill-considered claims take up several hours of court time, much to the loss of other genuine litigants waiting in queue. Added to this is the pressure of cases championed by bar leaders who leave no stone unturned to subvert the system. This is why a final request was made to the legislature to take steps to reduce frivolous litigation and compensate the wronged party.
If the two lead counsel who represented Sahara had read their history, they would have learnt that when a former law minister and a famous legal scholar sought to bench-hunt on ill-conceived grounds, it resulted in conviction for contempt. They are fortunate that the SC has been restrained in delivering this salutary verdict, but this act of charity should never be confused for weakness, and let all other courts follow this lead.