Bias charge against judge: Bombay HS raps Maha govt, asks to apologise

Mumbai
28 Aug 2017

The Bombay High Court today took to task the Maharashtra government for the manner in which it was withdrawing its charge of bias against Judge A S Oka in the noise pollution matter, saying it should "show remorse" and apologise through an affidavit. The direction was given after the Maharashtra government said it was "withdrawing unconditionally" the charges made against Justice Oka, with the court terming the state's move as "frivolous". Advocate General Ashutosh Kumbhakoni submitted a two- page communication in the HC, saying the state's allegation, that Justice Oka harboured a serious bias against the state machinery in the noise pollution matter, "was not raised as an allegation against the judge personally, but was limited only to the subject matter involved" "The contention (judge being biased) was not raised as an allegation against the Hon'ble Judge personally but was limited specifically to the subject matter involved in the group matters," the government's letter read. "The state only requested the Chief Justice (of the HC) to consolidate all noise pollution matters, and to place them before a bench of which Justice Oka is not a member," Kumbhakoni said. A bench of Justices Oka and Riyaz Chagla, after perusing the letter, however, said an apology must be tendered by way of an affidavit by the government. "A mere statement by the AG (advocate general) doesn't translate into the state's apology," the bench said. The judges said the state should show remorse for its act of filing the application before the chief justice seeking transfer of noise pollution-related cases to another bench. "It must submit an affidavit explaining its application before the chief justice. The state should show remorse. Also, such an affidavit must be signed by a senior state official, and it must identify the person who gave the AG's office the direction to seek the transfer," the bench said. Kumbhakoni said the state government would file an affidavit to the effect tomorrow.The court also said it was not bothered by the fact that allegations had been made against a particular judge.  "We are not touchy about the allegations against a particular judge. Our anxiety is about the consequences of the state's frivolous action. The state's action affects the dignity of the judiciary, and of the 155-year old institution of this high court," the bench said. "Your allegations mean that the Maharashtra government doesn't want the high court to exist. It means that the state does not trust the high court and it says so in as many words," it said. The bench also said the state, in getting the noise pollution cases transferred to another bench, had "misled" the chief justice. "The AG sought that this bench recuse itself from the hearing. However, when we passed an order refusing to do so, you failed to inform the chief justice of our order. As a result, the CJ was forced to pass the transfer order, and then later, she was compelled to withdraw it," the bench said. "The consequence of the state's action is now irreparable. It has damaged the judiciary reputation," Justice Oka said. "The state must get a clear signal hereafter that in future it can't play with the institution. The state must understand the consequences of its frivolous actions," the bench said. The government on August 24 filed an application before the HC chief justice, seeking transfer of all petitions pertaining to implementation of the Noise Pollution Rules to a bench of which Justice Oka was not a member. Chief Justice Manjulla Chellur, on the same day, passed an administrative order allowing the plea and placed the matters before another bench. Several lawyer associations later condemned the state's accusations against Justice Oka and urged the chief justice to take appropriate action. Yesterday, Chief Justice Chellur passed an order constituting a three-judge bench (full bench) led by Justice Oka to hear the matters. The full bench, comprising Justices Oka, Chagla and Anoop Mohta, today said it would hear two petitions, challenging the August 2017 amendment to the Noise Pollution Rules, tomorrow. The bench, headed by Justice Oka, and the government were at loggerheads on whether an order passed by the High Court in 2016 would continue to operate despite an amendment to the Noise Pollution Rules issued this year. According to the amendment, only the government can declare an area as silence zone.(PTI)