SEKAR REPORTER

Court News from Madras High Court

H.C.P.No.1163 of 2024Dr.G.JAYACHANDRAN,J.Shankar @ Savukku Shankar, Journalist on a Social Mediaplatform also claims as a whistle-blower, fall under the scanner of the State. In view of complaints lodged against him an order of preventive detention under Act 14 of 1982 was slapped on him on 12.05.2024

by ·

H.C.P.No.1163 of 2024
Dr.G.JAYACHANDRAN,J.
Shankar @ Savukku Shankar, Journalist on a Social Media
platform also claims as a whistle-blower, fall under the scanner of the State. In view of complaints lodged against him an order of preventive detention under Act 14 of 1982 was slapped on him on 12.05.2024.

  1. His mother has filed a petition for issuance of Writ of Habeas Corpus to quash the detention order, which is impugned on the ground of malafide and victimisation. The petition came up for hearing during summer vacation. The Habeas Corpus Petition was taken up for consideration by the Division Bench consisting of the Hon’ble Mr. Justice G.R.Swaminathan and the Hon’ble Mr.Justice P.B.Balaji as per the roster.
  2. The Writ Petition was listed for admission on 23.05.2024. The Hon’ble Division Bench thought fit to call for the records pertaining to the detention order and adjourned the matter for the next day. On that day, it was represented by the learned Advocate General that under Rule 19(3) of the Madras High Court Writ Rules, 2021, once Rule Nisi is issued, four weeks time for the respondent to be granted to show cause how the order is sustainable. He also represented that there need not be any departure to the said procedure in respect of granting time to file counter. The Senior Judge in the Bench, the Hon’ble Mr. Justice G.R.Swaminathan, declined to entertain the request and recording his explanation and reasons to proceed with the case and recorded his verdict. Whereas the Junior Judge in the Bench the Hon’ble Mr.Justice P.B.Balaji has thought fit that the State should be permitted to file a counter and only thereafter, the Habeas Corpus Petition should be heard.
  3. At this juncture, it is appropriate to note that the Hon’ble Mr. Justice G.R.Swaminathan, as explanation to decline the request of the learned Advocate General, had disclosed reason, which according to him, had forced him to pass orders immediately on perusing the file sans written counter.
  4. The Registry of the Hon’ble High Court of Madras, has
    sought for advise of the Hon’ble Acting Chief Justice for necessary instructions, how to proceed further, in view of the situation, like this was never heard in the Indian Judicial history, wherein a Division Bench in which one learned Judge deciding the petition on merits with available papers and another learned Judge in the Division Bench thought it fit that the State should be permitted to file a counter before passing any verdict. The Hon’ble Acting Chief Justice has chosen this Bench as a Referral Judge. Thus, the case is placed for consideration by Reference.
  5. It is also pertinent to note at this juncture that while one of the Hon’ble Judge has rendered his opinion, based on the records available, the other Hon’ble Judge has not stated anything about the merits of the case. There is literally no two conflicting views to resolve through reference to a third Judge. Precisely for the said reason, both the learned Judges have not thought fit to frame any point of reference to the third Judge.
  6. However, such split verdicts sent for reference without
    framing point for reference is not new to this Court. There are precedents when the Division Bench fails to formulate the point of reference after delivering split verdict. In such cases, the Referral Judge himself can formulate the point of reference and decide the issue and this legal preposition is found in “All India Anna Dravida Munnetra Kazhagam v. The State Election Commissioner and others reported in [2007-2 L.W.1], wherein, the Referral Judge was asked to resolve the conflicting view of two Judges without the point of reference and the referral Judge in that case after narrating the background facts of the case has observed:
    “182. Even though Clause 36 of the Letters Patent requires that if the opinion of the Judges should be equally divided, “they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including who those first heard it”, no specific point on which difference has arisen has been specified. When the matter was placed before me, at the threshold this aspect was highlighted by me and the learned counsels appearing for all the parties have stated that even though points of difference have not been specifically pointed out by the Division Bench, the difference as apparent from various discussions and conclusions of the two learned Judges should be culled out and should be decided on that basis without returning the matter for spelling out the difference.”
  7. This dictum has been followed by this Court in other cases subsequently, and that is the law governing the field. Hence, as mandated by the Hon’ble Acting Chief Justice, on hearing the learned Senior Counsels on either side, this Court formulates the following questions as points for reference:
    (i)Whether the Division Bench, after issuance of Rule Nisi, can before expiry of four weeks decide the writ petition without a counter either in writing or by oral submission?
    (ii)In a Division Bench consisting of two learned Judges whether the verdict by one of the learned Judge on merits and postponement of the discussion by another learned Judge can be construed as a judgment for any purpose?
  8. The Madras High Court Writ Rules, 2021, prescribes the
    procedure for hearing Writ Petitions. As far as the petition filed seeking issuance of Writ of Habeas Corpus, it has to be heard by the Bench consisting of two Judges. The spirit and object of engaging two Judges to hear the habeas corpus petition is to ensure that the wisdom of two trained brains is put together to preserve and protect the fundamental rights like life and liberty and not curtailed without due process of law.
  9. Once the writ petition is admitted, Rule Nisi is issued to test
    whether the order passed by the Executive does not suffer any infraction of right guaranteed under the Constitution. An opportunity to the authority, who has passed the detention order to justify his action is afforded by issuing Rule Nisi. This procedure is to know how he has arrived at the subjective satisfaction to detain a person in anticipation that the detenu may indulge in activities which may likely to cause prejudice to the public peace and tranquillity.
  10. The fundamental rights guaranteed under the Constitution
    ensures no person shall be deprived of his life and liberty without procedure established under law. The Constitutional Courts vested with the power to test the validity of the detention order taking constitution as a touchstone. While testing the order of the authority, who causes the detention order, the principles of natural justice warrants that the authority must be heard and such hearing must be meaningful either it may be in writing or orally.
  11. Rule 19(3) say that once Rule Nisi is issued, four weeks
    time or earlier to be granted to file counter to show cause, why the order impugned need not be interfered. But, when the order of detention on the face is perverse and abuse of power and it shocks the conscious of a judicial mind, the Court need not wait for four weeks time to expiry before hearing the petition and keep a detenu behind the bar till then. The Court has the power to command the State to respond to the Habeas Corpus Petition even earlier. Such response need not necessarily be in writing in a form of counter affidavit. However, in all fairness, reasonable opportunity to the authority who has passed the detention order, has to be given to defend his decision.
  12. I find, in this case such opportunity is not given. Thus,
    expression of opinion by the learned Judge suffers partial application of mind. Further, his opinion has lost the character of the judgment since it has been penned without affording opportunity for explanation.
  13. The view recorded by the Senior Judge in the Bench is non-
    est because when the Judges in the Bench expected to record their verdict on facts and law conclusively, we find the judgment under reference does not contain the conclusion of one of the Judge. Therefore, the conclusion of the other Judge to be ignored for non compliance of due process of law and violation of natural justice.
  14. At the cost of repetition, from the reading of the order dated 24/05/2024, I understand, the Learned Judges had differed on the point whether after issuance of ‘Rule Nisi’ and appearance of the respondents /State through the Counsels, should further time to file a written counter to the petition to be granted or not. Relying upon the Madras High Court
    Writ Petition Rules, 2021, the Learned Advocate General for the State had sought time to file counter. The Senior Judge in the Bench had held, time to file counter need not be granted and had proceeded delivering his verdict with reasoning why he is not inclined to grant time, which he would have otherwise granted in normal course. Whereas the Junior Judge in the Bench had recorded his grant of permission to file counter by the State.
  15. Rule 19 of the Madras High Court Writ Petition Rules reads
    as below:-
    “Rule 19 Admission:-
    (1)Upon categorization, Writ Petitions shall be posted before Court, as per the roster assigned by the Hon’ble Chief Justice from time to time, for admission, along with Writ Miscellaneous Petitions, if any, for filing single Writ Petition, dispensing with production of original impugned order and for other interim reliefs.
    (2)The Court may, upon hearing the petitioner or his Advocate, admit the Writ Petition, issue rule nisi or order notice of motion and pass such interim order as it may deem necessary, or dismiss the Writ Petition.
    (3)Rule nisi may be returnable by 4 weeks or earlier if so ordered by the Court.”
  16. The significance of issuing “Rule Nisi” by the High Court
    under Article 226 of the Constitution of India been dealt by the Hon’ble
    Supreme Court in :-
    (1)Himansu Kumar Bose v. Jyoti Prokash Mitter &
    Ors. [AIR 1964 SC 1636];
    (2)Gunwant Kaur Smt & Ors. v. Municipal Committee
    Bhatinda & Ors., [AIR 1970 SC 802]; and
    (3)Union of India and another –vs- S.P.Anand and other [(1998)6 SCC 466]
  17. In S.P.Anand case cited supra, after referring the other two
    judgements, the Hon’ble Supreme Court has concluded that unless there is triable issue related to the rights conferred under the Constitution, the Court need not issue rule nisi.
  18. In the instant case, the Leaned Judges, who heard the
    petition had no doubt in their mind about issue involved, (i.e) the personal liberty of the individual curtailed by detaining him in prison as a preventive measure. Therefore, they have admitted the writ petition and called for the records.
  19. Rule 19(3) of the High Court Writ Rules, 2021 reads as
    under:-
    “(3)Rule nisi may be returnable by 4 weeks or
    earlier if so ordered by the Court.”
  20. The Learned Judges through their respective orders dated
    24/05/2024 had expressed the difference of opinion. While the Senior Judge in the Bench had proceeded to decide based on the records produced and the oral submission made on behalf of the State, the Junior Judge in the Bench had implicitly recorded that without counter he cannot proceed and look into the merits of the writ petition.
  21. The order of the Junior Judge in verbatim is as below:-
    “With utmost respect to my esteemed brother G.R.Swaminathan, J., I am of the view that this is a case where the State should be permitted to file counter and the H.C.P., should be finally heard thereafter.”
  22. In a case heard by Bench consisting of Two Judges and if
    one give verdict based on the records and another express, his desire to know the counter of the respondent to decide the issue, then, in my considered view, the order of the Division Bench dated 24/05/204 is not a judgment with split verdict, but an unilateral opinion of one Judge, which is not complimented by the opinion of the companion Judge, who shared the Bench. Therefore, this Court is of the view that the order, which is now placed before this Court for reference suffers incompleteness. Failure to afford opportunity to file the counter, when it was sought and the bias of showing interest in passing order hastily without consulting the Bench partner renders the expression of opinion by the Hon’ble Mr. Justice Mr.G.R.Swaminathan non est.
  23. Rule 12 of the Madras High Court Writ Petition Rules, 2021, list out the matters which has to be heard by Division Bench consisting of two Judges. Heabeas Corpus Petition has to be heard by two Judges. The procedure to be adopted in case of split verdict and difference of opinion among the two Judges, is spoken in clause 36 of the Letters Patent.
  24. In the instant case, as pointed out earlier, the difference of
    opinion is with regard to whether the Court can proceed with the matter and decide on merit without affording opportunity for the State to file counter. The latin maxim ‘Audi Alteram partem’ (No person should be judged without a fair hearing) is the very first lesson taught in law schools in all democratic country. Issuance of rule nisi in a Hebeas Corpus Petition is to afford opportunity to the respondent to show cause how the impugned order of detention is sustainable. When we say fair opportunity, it means fairness in all sense. Listing the matter on the next day of notice to decide the case for certain other reasons cannot be termed as adequate opportunity much less a fair opportunity.
  25. The Learned Senior Judge in all fairness of a Judge had
    given his explanation why he proceed to pass orders without affording opportunity to the State by way of counter to respond the rule nisi. The reasons which has triggered him to deny the opportunity to the State is more disturbing and makes his finding on facts liable to be eschewed not only for want of completion by the opinion of Junior Judge in the Bench but also for the semblance of personal bias against the respondent against whom a serious allegation of approaching through emissary is made. Rarely such thing happens to a Judge while discharging the duty. Even if such event happens, past history of this Court says, Judges used to report it to the Chief Justice and/or take action for interfering in the administration of Justice and/or recuse from hearing the case. From the words of the Learned Judge, he being triggered by approach of two emissaries, he been forced to bye-pass the normal course. ‘Bias’ is not only direct or indirect interest on a party either personal, pecuniary or official. Even getting annoyed or disturbed over back door attempt to interfere in the administration of justice may induce negative bias.
  26. In this aspect, reading of the Judgment rendered by the House of Lords in “InRe Pennocchio” which has propounded the principle of semblance of bias is profitable, I find in that judgment the following reference to the below observations of Lord Widgery C.J. worth extracting in Regina v. Altrincham Justices, Ex parte Pennington [1975]
    1 Q.B. 549, 552F:
    “There is no better known rule of natural justice than the one that a man shall not be a judge in his own cause. In its simplest form this means that a man shall not judge an issue in which he has a direct pecuniary interest, but the rule has been extended far beyond such crude examples and now covers cases in which the judge has such an interest in the parties or the matters in dispute as to make it difficult for him to approach the trial with the impartiality and detachment which the judicial function requires.”
  27. In my humble opinion, in addition to the expression “interest in the parties or the matter in dispute”, if a judge is disturbed by annoyance caused by the parties affecting his judicial tranquillity and balance during the discharge of the judicial function which requires impartiality and detachment, same also causes bias. In such
    circumstances, the learned Senior Judge ought to have atleast taken into consideration the handicap of the junior judge who had thought fit in his wisdom that for a fair decision the respondent has to be given time to file the counter.
  28. To give quietus to the issue, now the State has come
    forward to file its counter. A copy of the counter is also served to the learned Senior counsel appearing for the petitioner. Therefore, the pleadings are completed and the matter is ripe for consideration on merit.
  29. The State under Preventive Detention Act is empowered
    with extraordinary power to detain a person in anticipation of crime, which may likely to cause prejudice to the general public peace and tranquillity. That power has to be sparingly exercised and there must be justification to exercise such power. Also, the State should allow the detenu to challenge the same and should meet the challenge honestly and fairly with all materials available with it. The State cannot shy away from filing counter or delay the process of testing the legality of the detention order unreasonable. It is therefore made it clear that after issuance of Rule Nisi, the Court has power to direct the State to file counter on or before specific day, which is reasonable. It is not necessary to want for four weeks from the date of issuance of Rule Nisi before passing verdict.
    Also it is made clear, the counter need not necessarily be in writing. Any formal expression, which satisfies the requirement of show cause is
    sufficient.
  30. In this case, before the Division Bench, no written counter
    is filed. The learned Additional Advocate General for the State had made oral submission after producing the records.
  31. As pointed out by the learned Senior Counsel appearing for
    the petitioner, while appreciating the legality of the preventive detention order, it is not necessary for the Court to wait for written counter. This point has been well settled by the dictum of the Hon’ble Supreme Court in Ameena Begum v. State of Telangana and others reported in (2023) 9
    SCC 587. Paragraph No.27 is extracted as below:-
    “27. Be that as it may, culling out the principles of law flowing from all the relevant decisions in the field, our understanding of the law for deciding the legality of an order of preventive detention is that even without appropriate pleadings to assail such an order, if circumstances appear therefrom raising a doubt of the detaining authority misconceiving his own powers, the Court ought not to shut its eyes; even not venturing to make any attempt to investigate the sufficiency of the materials, an enquiry can be made by the Court into the authority’s notions of his power. Without being remotely concerned about the sufficiency or otherwise of the materials on which detention has been ordered, the Court would be justified to draw a conclusion, on proof from the order itself, that the detaining authority failed to realise the extent of his own powers. This is quite apart from questioning the action for want of sufficient materials that were before the detaining authority. The authority for the detention is the order of detention itself, which the detenu or the Court can read. Such a reading of the order would disclose the manner in which the activity of the detenu was viewed by the detaining authority to be prejudicial to maintenance of public order and what exactly he intended should not be permitted to happen. Any order of a detaining authority evincing that the same runs beyond his powers, as are actually conferred, would not amount to a valid order made under the governing preventive detention law and be vulnerable on a challenge being laid.”
  32. However, in this case, it is not only declining time to file counter by one of the learned Judge, but proceed to record his opinion without any sign of consulting, if not consensus with the co-Judge.
  33. To be fair, certain factors had forced the learned Brother Judge the Hon’ble Mr. Justice G.R.Swaminathan, to proceed with the case and record his view on merits. One such reason is, the Court delay in disposing petitions filed for issuance of Habeas Corpus. For this menace, the remedy is to constitute more Benches to hear Habeas Corpus Petitions and a judicial discipline among the Judges to dispose of Habeas Corpus Petitions filed challenging detention order within a reasonable period. I hope the time has come for the Hon’ble High Court of Madras to consider the docket explosion in the Habeas Corpus jurisdiction and take measures to dispose Habeas Corpus Petition within a period of three months from the date of filing.
  34. Reverting back to the point of reference, while Rule 17 of the Madras High Court Writ Rules 2021, mandates Habeas Corpus Petition should be posted before a Division Bench, Rule 19 provides four weeks time or earlier to respond Rule Nisi. This four weeks is only the upper limit prescribed under the Rule. The Rule enable the Court to order an earlier date.
    “Rule 19 Admission:-
    (1)Upon categorization, Writ Petitions shall be posted before Court, as per the roster assigned by the Hon’ble Chief Justice from time to time, for admission, along with Writ Miscellaneous Petitions, if any, for filing single Writ Petition, dispensing with production of original impugned order and for other interim reliefs. (2)The Court may, upon hearing the petitioner or his Advocate, admit the Writ Petition, issue rule nisi or order notice of motion and pass such interim order as it may deem necessary, or dismiss the Writ Petition.
    (3)Rule nisi may be returnable by 4 weeks or earlier if so ordered by the Court.”
  35. Rule 20 speaks about service of notice. Notice issued to the
    learned Standing Counsel of the Government considered to be sufficient notice or rule nisi. Therefore, the Division Bench, after issuance of rule nisi can fix any reasonable date, much earlier than four weeks for the State to file counter. The said counter need not necessarily be in writing, it may be any formal expression made orally also.
    The first point of reference is answered accordingly.
    (ii) In the instant case, as discussed above, the order which is
    the subject matter of reference is an incomplete order and in view of this Court, it is only an expression of opinion by one learned Judge which was neither concurred nor differed by the other Judge, but had implicitly declined to record his verdict, till Government file counter. Therefore, this Court is of the view that the said expression of view by the Hon’ble Mr.Justice G.R.Swaminathan, has to be eshewed and declared as non est. The second point of reference is answered accordingly.
  36. The respondents have filed counter and the learned Senior
    Counsel appearing for the petitioner as well as the learned Additional
    Advocate General has consented to conduct the case afresh before the
    Bench dealing with the Habeas Corpus Petition on 12.06.2024 (i.e.)
    Wednesday. Hence, on answering the order of reference as above, the
    Registry is directed to list the Habeas Corpus Petition on 12.06.2024 before the Division Bench dealing with the Habeas Corpus Petitions.
    06.06.2024
    Index:yes/no
    Speaking order/non speaking order
    Neutral Citation:yes/no ari 
    DR.G.JAYACHANDRAN,J.
    ari H.C.P.No.1163 of 2024
    06.06.2024

You may also like...