Justice should not only be done, but should manifestly and undoubtedly be seen to be done. It is not merely of some importance, but of fundamental importance that this maxim of justice is applied at every stage of justice delivery system. Since Justice is rooted in confidence and confidence is destroyed when people go away thinking: ‘The judge was biased’.
It is vitally important in a democracy that individual judges and the judiciary as a whole are impartial and independent of all external pressures and of each other so that those who appear before them and the wider public can have confidence that their cases will be decided fairly and in accordance with the law. When carrying out their judicial function they must be free of any improper influence. Such influence could come from any number of sources. It could arise from improper pressure by the executive or the legislature, by individual litigants, particular pressure groups, the media, self-interest or other judges, in particular more senior judges.
I am quoting the above long held & widely respected legal maxims in the context of recent Judgment of Honb’le High Court of J&K exonerating former DGP Kuldeep Khuda in the Bhaderwah fake encounter case which consumed three innocent lives including a father son duo. I am not here to comment on the correctness or otherwise of the judgment – That will be decided by the Honb’le Supreme court in appropriate proceedings. My only point is that the judgment was delivered so hurriedly and in a manner which put many a minds to doubt . It appeared as if some strings were being pulled from behind and various wings of the Govt. appeared in a flying race to get the judgment released and that is where the principles of natural justice appeared to have been compromised.
Without sounding a doubting Thomas, let me list the factors which caused or contributed in creating the above impression. First & foremost was the transfer of case from Srinagar to Jammu. It needs to be mentioned here that the case was originally fixed in Srinagar on the application of families of victims but was transferred to Jammu on the application of Mohd. Ashraf, one of the accused, but not a party, in the fake encounter case. Was this done to deprive the families of victims to obtain virtual cost free justice in Kashmir as against huge costs to be incurred in Jammu?
Yet another factor in the whole episode is the undue haste with which the judgment has been delivered. On May 25, 2012 the advocate general , originally appointed as amicus curie (a friend of the Court) to assist the court, filed written objections to the petition and submitted the records that the court had sought eight months earlier. The petitioners, nor their counsel, were informed nor provided the documents. Finally, the petition was dismissed on 29TH May. As we know from our experience, the same degree of urgency is never shown in other cases and especially those where relief is sought or due to the victims of State terror.
Another issue in this episode is the choice of the Honb’le court in selecting Advocate General as Amicus Curie who for all practical purposes is a Govt. employee and bound to uphold Govt. interests. Was it not appropriate for the court to ask any of the senior advocates, in the first instance, to take up the job of assisting it instead of Advocate General ? Further was it ethical legally & morally for the advocate general to appear as defense counsel as well for the accused after having been appointed as amicus curie in the first instance.
Further in an unprecedented action the Govt. publicized the judgment through official channels clearly demonstrating its pecuniary interest in the case.
Last but not least- the judgment was passed at the back of the appellants without giving them any opportunity of being heard at the crucial stage. The matter, after being listed as part-heard, was taken up within four days thereby effectively precluding the petitioner’s counsel from appearing in the matter in Jammu. This way a fundamental principal of natural justice has been violated.
Why was all this done to cast doubts on the whole process of Justice? Of-course, skies would not have fallen if a retired DGP was not made CVC on the next day of reaching superannuation. If Govt had waited so long to keep the post vacant for a deserving or a blued eyed bureaucrat, it could easily have waited for another few days to allow justice to proceed in a normal way. It could also have waited for the Apex Court’s decision before convening a meeting to send recommendations to Raj Bhavan.