THE CASE OF BOMBAY HIGH COURT
Babasaheb Ambedkar said, “The Hindu has the will to equality. His inclination and his attitude are opposed to democratic doctrine of one man one value”. (Writings and Speeches, Vo. IX). The Bombay High Court recently proved that the Constitution, laws, rules and regulations cannot change this basic “Hindu Mind”.
From this it is clear that as long as this “Hindu Mind” is what it is no social transformation is possible in India. Upper caste judges in charge of implementing the Constitution have themselves proved it.
Reservation in employment and promotions is a constitutional directive. Officials working in the judiciary are all govt. servants and as such the policy should extend to the employees of the Bombay High Court. Unfortunately the so-called “merit and efficiency” scuttled this reservation policy even when the SC/ST candidates fought for its implementation through a batch of writ petitions and had won the battle.
Bold and blunt judge: After extensive hearings of the petitions a division bench comprising Justice K. Sukumaran and Justice V.V. Kamat wrote the judgment and order on Dec. 18, 1991. This judgment had been written by Justice Sukumaran on his behalf and Justice Kamat, and both signed it on May 1, 1992.
Judgments and orders have no effect unless and until they are pronounced in the open court. However, the court officials issued a certified copy of the judgment and order to one of the petitioners, though it had not been pronounced.
After a lapse of six months the court officials realised the mistake. So the judgment was pronounced at the Aurangabad bench of the High Court by another division bench comprising Justice Kamat and Justice S.G. Mutalik on June 8, 1992. There is no explanation as to why the author of the judgment, the senior-most judge, Justice Sukumaran, did not take part in pronouncing the order.
Sukumaran had used hard and blunt language in upholding the reservation policy and had allowed the writ petitions.
In their order (Kamat and Mutalik) sought to explain the delay and stated that the court office erred in issuing the certified copy and directed that it should be withdrawn, since the certified copy bore the date Dec. 18, 1991, while they (Kamat and Mutalik) had”corrected” the date as June 8, 1992. The date of any judicial order is not only very important but sacrosanct.
Chief Justice role: The next part of the story is the judgment was not acceptable to Chief Justice P.D. Desai. Though it was open to him to file an appeal before the Supreme Court, he asked the same judges (Kamat and Mutalik) to reconsider the judgment by filing a review petition. Such a petition has to be filed within 30 days of the date of the order and for this purpose, the date of the order is taken as June 8, 1992 and not Dec. 18, 1991.
The review petitions have to be heard by the same judges whose judgment is sought to be reviewed. With the retirement of the senior-most judge, Sukumaran in July 1992, the review petition was heard by a new bench comprising a senior judge, Justice M.L. Pendse, and Justice V.V. Kamat. They admitted the petition of the Chief Justice on Aug. 14, 1992 and stayed the operation of the order that had been made by Justice Sukumaran and Justice Kamat on the ground that it reflected “errors apparent on the face of the record” and that the judgment contained “glaring omissions and patent mistakes or grave errors”. The order further said that these writ petitions should be heard all over again by another division bench selected by the Chief Justice. Here again Justice Kamat is a signatory to the order written by Justice Pendse.
Crucial questions: While the net result of these protracted proceedings is that the reservation policy need not be followed by the judiciary in Maharashtra, some interesting crucial questions have cropped up.
Firstly, are not judges like Justice Kamat who have taken contradictory and conflicting positions account-» able to anybody?
Secondly, should the callousness of the court officials, who managed to see that the original judgment and order remained unpronounced, go unpunished?
Thirdly, where are the “merit and efficiency” which we are told would perish if reservation policy is implemented?
Lastly, would it be proper for the chief justice who is also the petitioner now, to constitute or select the bench which will hear the petitions?
