In a sharp, suave, sensible and significant observation, the Allahabad High Court in a learned, latest, laudable and landmark judgment titled Hasae @ Hasana Wae and 11 others vs State of UP and Another in Application u/s 482 No. 16310 of 2020 and 14919 of 2020 delivered recently on August 5, 2021 has minced just no words in making a strong observation that dilution of constitutional autonomy of the High Courts would threaten the concept of judicial federalism envisaged in the Constitution and affirmed by judicial precedents. Further, emphasizing that the Allahabad High Court has a history of more than 130 years which predates most constitutional courts in the country, the Court also noted distinctly that it has earned the abiding trust of the people of the State by dispensing fair and impartial justice and by the probity of conduct of the Bar and the Bench alike. There can be just no denying or disputing it! Moreover, it cannot be denied that Allahabad High Court is the biggest court in the whole of Asia and UP Bar Council is the largest Bar Council in the world!
To start with, a single Judge Bench of Justice Ajay Bhanot of Allahabad High Court who has authored this judgment sets the ball rolling by first and foremost observing in para 1 that, “These Applications U/S 482 Cr.P.C. have been connected and are being decided by a common judgement.”
While specifying the purpose of the application, the Bench then observes in para 2 that, “The application registered as Application under Section 482 Cr.P.C. No. 16310 of 2020 (Hasae @ Hasana Wae and Others Vs. State of U.P. and another) is directed against the chargesheet dated 07.06.2020 filed by the investigating agency in Case Crime No. 198 of 2020 under Sections 188, 269, 270, 271 I.P.C. and Section 3 of the Epidemic Diseases Act,1897, and Section 14B Foreigners Act, Police Station Sadar Bazar, District Shahjahanpur and the proceedings before the trial court taken out in pursuance thereof.”
While continuing in the same vein, the Bench then adds in para 3 that, “The application registered as Application U/S 482 Cr.P.C. No. 14919 of 2020 (Daha Dasai and Others Vs. State of U.P and another) is directed against the chargesheet dated 10.05.2020 filed by the investigating agency in Case Crime No. 138 of 2020 under Sections 188, 269, 270 I.P.C. and Section 3 of the Epidemic Diseases Act, 1897 and Section 14B of the Foreigners Act, 1946 Police Station Pilkhuwa, District Hapur, against the applicants and the proceedings before the trial court initiated in pursuance thereof.”
Truth be told, the Bench then underscores in para 4 that, “The matter had acquired certain urgency since most of the applicants are foreigners. There is also a request of the Supreme Court to expedite the hearing of the matter. The matters were connected and placed before me after nomination for the first time on 08.06.2021. Certain impediments were created in the hearing of the matter which are evident from the perusal of the ordersheet. Lack of assistance and accountability from the State side was delaying the hearing.”
Needless to say, the Bench then puts forth in para 5 that, “Learned counsels for the applicants contended with credibility that the capacity of the judicial process to show that justice will be seen to be done will be impaired in case such conduct goes unnoticed and unaccounted for.”
As we see, the Bench then observes in para 6 that, “When no answer whatsoever was forthcoming from the State side, the Court was compelled to direct the personal appearance of the Principal Secretary/Legal Remembrancer, Department of Law, Government of U.P., Lucknow to explain the stand of the State.”
What we then see is that the Bench then discloses in para 7 that, “The order of summoning was resisted by State counsels, albeit in respectful undertones. Reference to the latest holding of the Supreme Court in point was alluded to. The question being relevant is being decided on its merits.”
Quite forthrightly, the Bench then hastens to point out in para 8 that, “The Allahabad High Court has a history of more than 130 years which predates most constitutional courts in the country. Rectitude of conduct of the judges, adherence to ethical norms by lawyers, and professional achievements which set standards of excellence form the quintessence of its storied reputation and animates the Court even today. The Allahabad High Court has thus earned the abiding trust of the people of the State by dispensing fair and impartial justice and by the probity of conduct of the Bar and the Bench alike.”
What’s more, the Bench then adds in para 9 that, “The Bar of this Court was in the frontline of the freedom struggle and the Court has been at the vanguard of protection of rights and liberties of citizens in times of maximum peril.”
Adding more to it, the Bench then seeks to remind in para 10 that, “The paradox of the Allahabad High Court is that the unconditional trust of the citizens is its most precious asset but also poses the most pressing challenge. The people of the State of U.P. approach this Court with full confidence and no constraint. The result of the people of the State approaching the Court in huge numbers is the largest docket size in the country. The workload on Judges in the Allahabad High Court is the highest in the country.”
What a tragedy that even though the workload on Judges in the Allahabad High Court is the highest in the country as the Bench has most sagaciously pointed out and it is also rightly pointed out that the result of the people of the State approaching the Court in huge numbers is the largest docket size in the country still it has just one High Court Bench which is the least in the country and this is most disgraceful and as a consequence the more than 9 crore people of more than 26 districts of West UP have to travel more than 700 to 800 km on an average all the way to Allahabad to get justice as there is just one High Court Bench and that too for just 12 districts of Lucknow Bench created in 1948 but not elsewhere even though Justice Jaswant Singh Commission recommended High Court Bench for West UP but not a single created even though on its recommendations High Court Benches were created at Aurangabad which already had a Bench at Nagpur, at Madurai in Tamil Nadu and at Jalpaiguri in West Bengal! Centre must have some pity on the Judges who operate with so much of workload and create more High Court Benches in needy places like in West UP, in Bundelkhand in Purvanchal and other needy regions!
Anyway, coming back to this ruling, the Bench then candidly and very rightly concedes in para 11 that, “Unremitting the toil of judges and unsurpassed industry of lawyers has allowed the Court to keep the faith and confidence of the people in its ability to deliver justice.”
Be it noted, the Bench then observes in para 12 that, “The distant vision of the founding fathers was reflected in the creation of the comity of constitutional courts which included the High Courts of the States and the Supreme Court of India. The High Courts and the Supreme Court have been vested with analogous powers by the Constitution of India. Constitutional autonomy of the High Courts is paired with the attribute of finality to the holdings of the Supreme Court as the highest appellate court in the country. These features are integral to the scheme of judicial federalism in the Constitution of India.”
Simply put, the Bench then rightly states in para 13 that, “The High Courts possess supervisory powers over the District Courts under Article 227 of the Constitution of India. However it is noteworthy that no such powers of superintendence over the High Courts are vested in the Supreme Court by the Constitution of India. The reasons are not far to seek.”
In a candid admission, the Bench then envisages in para 14 that, “Considering the unique circumstances of our country, most citizens are not likely to go beyond the High Court in search of justice.”
Very rightly, the Bench then also points out in para 15 that, “An overwhelming majority of the citizens make the Allahabad High Court the final temple in their pursuit of justice. Primarily it is the quality of justice and trust in the institution which persuades the majority of our citizens to accept the finality of the judgements of the Allahabad High Court. High Court is the litigative terminus for other reasons as well, including litigation fatigue, financial burden and desire for closure. The Allahabad High Court is final because of the citizens’ choice as the court of last resort.”
Without mincing any words, the Bench then points out in para 16 that, “Absent powers equivalent and analogous to that of the Supreme Court or sans the constitutional autonomy, the High Courts will not be able to effectively and faithfully discharge these constitutional functions and will be unable to retain the confidence of the people in their capacity to do justice.”
Furthermore, the Bench then adds in para 17 that, “Judicial federalism unequivocally contemplates full and equal autonomy to all constitutional courts; with the unconditional understanding that the Supreme Court is the final court of appeal in the country. To effectuate the latter part, there are other provisions in the Constitution like Article 142 and Article 144. The foremost constitutional aim of dispensing fair and impartial justice to all citizens and evolution of just laws in a country as vast and variegated as India cannot be achieved without a credible structure and effectively functioning system of judicial federalism.”
Going ahead, the Bench then notes in para 18 that, “Judicial federalism is distinct, in the sense, that unlike federations of States and legislatures, subjects are not divided into separate lists. Judicial federalism envisages congruent areas of responsibility of the High Courts and the Supreme Court.”
As a note of caution, the Bench then wishes to underscore in para 19 that, “The balance in judicial federalism is delicate. The concept of judicial federalism has to be shepherded with care in judicial pronouncements and restraint in conduct for it to thrive. Judicial federalism shall prosper or perish depending upon mutual respect between constitutional courts, and the quality of the constitutional dialogues between them.”
Moving on, the Bench then waxes eloquent to state in para 20 that, “Constitutional autonomy of the High Courts and comity of the constitutional courts are concepts on which there is substantial consensus of judicial authorities. However, at times the agreement of authorities in point is disturbed. Words like “superior” (as understood in Indian English) which occasionally enter the lexicon do not manifest ambiguity in the constitutional scheme. These constitutional debates mostly reflect the dilemma of a hierarchical society with an egalitarian constitution.”
Most significantly, what forms the cornerstone of this learned judgment is then summed up in para 21 wherein it is put forth that, “Dilution of constitutional autonomy of the High Courts would threaten the concept of judicial federalism envisaged in the Constitution and affirmed by judicial precedents. The consequences of High Courts denuded of their constitutional autonomy would be a decline in the quality of justice to the people of the country and weakening in the implementation of law. A failure to realise the preambled aim of securing justice to all its citizens would stare us in the face, and loss of faith of the common citizen in the judiciary will surely follow.”
Bluntly put, the Bench then enunciates in para 22 that, “The constitutional autonomy of the High Courts may be diminished by various factors. Construing appellate jurisdiction as conferring supervisory powers may compromise the constitutional autonomy of the High Courts.”
It is beyond doubt that the Bench then most commendably adds in para 31 that, “A constitutional dialogue happens in the comity of constitutional Courts by rendering of judgments and use of judicial precedents. The tone and terms of this dialogue, have to be marked by civility, leavened with mutual respect, and powered by honest convictions. This is predicated with the certain understanding that the final word in the controversy rests with Supreme Court. The dialogue between the constitutional courts is one of reason and purpose, and not of power and authority.”
Without doubt, the Bench then also convincingly adds in para 32 that, “The High Courts are best placed to understand and respond to the local problems of the State and the special needs of its people. Upholding the law and dispensing justice on a day to day basis in this setting provides an acute insight to the High Court judges and imparts great value to their judgements. Legal practices evolved by the High Courts from the experience gained by proximity to ground realities of the State and which have eminently served the cause of justice should not be readily reversed.”
Quite remarkably, the Bench then hastens to add in para 33 that, “Participation in the judicial process is restricted. Consequences of judicial verdicts can be widespread. Judicial federalism by enlarging participation in legal debates and deepening sensitivity in judicial approach enables constitutional courts to effectively address myriad facets of justice in a diverse society. A culture which accords equal respect to the judgements of the High Courts will foster rich legal debate across the comity of constitutional courts, give enduring foundations to the holdings of the Supreme Court, and strengthen judicial fedaralism. When all High Courts have a share in creating common constitutional values, it will add a judicial content to the unity of India. Unity of judicial values contributes to the inherent oneness of India.”
While citing the relevant case law, the Bench then brings out in para 34 that, “The judgement of the Supreme Court in Santhini Vs. Vijaya Venketesh (2018) 1 SCC 1 is one instance where the decisions of the High Courts were given full weight in the dissenting view rendered by Hon’ble Dr. D. Y. Chandrachud, J. After a comprehensive survey of the judgements of the various High Courts in the country allowing use of video conferencing in the judicial process, Hon’ble Dr. D. Y. Chandrachud, J. (speaking for himself) held as under:
“100. These are words of wisdom and perspicacity across the spectrum. Voices from within the judiciary in a federal structure should merit close listening by the Supreme Court.”
This statement of law mirrors the vision of the Constitution makers and also shines some light on the path to the future.”
It cannot be glossed over that the Bench then also seeks to highlight in para 36 that, “The Supreme Court has consistently emphasized the importance of tempered and civil language in the judgments rendered by all courts and has set its face against employing strong or disparaging language in judicial speech. Civility in judicial speech is the precursor to judicial wisdom.”
No less significant is what is then laid bare in para 37 that, “Untempered language often gives the impression that it is not the lis which is being judged but the author of the judgment who is on trial. Consequences of derogatory and unrestrained language in the process of courts transcend the facts of the case. The damage is of a lasting nature. It sullies the name of the judge who is in no position to defend himself. It also brings the entire institution into disrepute which takes the blow silently. The overall environment of independent judicial decision making too is adversely affected.”
Quite concerningly, the Bench then observes in para 38 that, “A greater cause of concern is the consequent reluctance of judges to exercise lawfully vested constitutional or inherent powers in the service of justice. The latter hesitancy is attended by the subtle danger of losing justice in procedures. This would imperceptibly but in a certain manner weaken the constitutional autonomy of the High Courts, and mark a shift away from the constitutional vision of comity of constitutional courts. The result will be High Courts which are a pale shadow of a luminous constitutional vision and an ecosystem which will occasion failure of justice.” Can we allow this to happen? Certainly not.
True to form, the Bench then makes it abundantly clear in para 59 that, “The power to summon an official or any other person is inherent in the constitutional courts. The powers have been vested in constitutional courts to empower them to achieve the foremost constitutional goal of securing justice to the citizens. The power is too sacrosanct to be blighted by any oblique motives or extraneous considerations. The power has to be used sparingly and regulated by self-discipline. Comprehensive guidelines containing the manner of exercise of inherent powers is an elusive goal. Constitutional courts have not attempted to confine the exercise of such inherent powers in a fixed formula to be applied irrespective of the facts of the case. Judicial authorities give illustrative examples of use of such power but do not provide an exhaustive scheme. Inherent powers cannot be ringed fenced by narrow definitions. Narrow definitions will militate against the very purpose of vesting inherent powers in constitutional courts, denude their constitutional autonomy, and will impede the quest for justice.”
As a consequence the Bench then states in para 60 that, “In summation, inherent powers for summoning of officials or any other person should be exercised as an exceptional measure to achieve the high end of securing justice. It is in the nature of things that this will always depend on the facts and circumstances of the case and the better judgement of the Court.”
In the context of this case, the Bench then points out in para 61 that, “In this case for reason as stated earlier the personal presence of the officer was necessitated to retain the faith of the litigants in judicial process, to remove the impediments in the hearing, and for the State to account for its actions and omissions.”
It is then revealed in para 62 that, “Shri Pramod Kumar Srivastava, Legal Remembrancer, Department of Law, Government of U.P., Lucknow, was present in Court on 02.08.2021. Shri M. C. Chaturvedi, learned Additional Advocate General for the State requested that the proceedings may be conducted in camera because some confidential facts and documents had to be placed before the Court.”
Quite clearly, the Bench then says in para 63 that, “In the proceedings held in camera, Shri Pramod Kumar Srivastava, Legal Remembrancer, Department of Law, Government of U.P., Lucknow, stated that the State Government is cognizant of the concerns of the Court and is committed to the principle of accountability. Relevant processes have been initiated. The Court was also assured that no impediment will be caused in the hearing and that the Court shall be assisted with full honesty in the matters.”
Quite graciously, the Bench then states in para 64 that, “Certain confidential documents were produced which depict governmental processes and also attest to the sincerity of the statement made on behalf of the State before this Court. Once the government is seized of the matter, the Court does not deem it appropriate to say anything which may fetter the lawful discretion of the State. Statements made by high officials on behalf of the Government in Court have highest sanctity and full weight have to be given to the same.”
While giving the final touch to this brilliant judgment, the Bench then states in para 65 that, “With these observations the matter relating to the personal presence of the Legal Remembrancer in person is finally disposed of.”
Also, the Bench then notes in para 69 that, “Learned counsels for the applicants do not dispute the contention on behalf of the State that since the trial has concluded and all evidences have been tendered, the cause of instituting this Application U/S 482 Cr.P.C. does not survive.”
Finally, the Bench then points out in para 71 that, “In wake of the preceding discussion, these Applications Under Section 482 Cr.P.C. are being disposed of with the direction to the learned trial court to decide the trial proceedings expeditiously.”
In sum, the Apex Court as well as all the governments both in the State as well as in the Centre must always remember what Justice Ajay Bhanot of Allahabad High Court seeks to point out in this notable judgment that dilution of constitutional autonomy of High Courts would threaten the concept of judicial federalism. Judicial federalism must be respected in letter and spirit. In all fairness, Allahabad High Court is most burdened in the country with maximum pending cases and when small states like Karnataka, Maharashtra, Assam among others can have three High Court Benches then why UP has just one! Centre must immediately act to create more High Court Benches in UP so that the huge burden of pending cases can be unburdened to a great extent! No denying it!