M J Antony: Mind your language

OUT OF COURT

Unwarranted strictures can affect the reputations and careers of people in power.

The enormous power exercised by the courts these days has rattled politicians and bureaucrats. There is serious debate in various forums on how to contain judicial activism. The constitutional dimensions of the issue are obvious. However, the damage done to the personal reputation of the people in power is a lesser known aspect. In recent months, quite a few former chief ministers and active politicians had to face serious threat to their reputations because of litigation in various courts. Public interest litigation has become a bugbear to them and top civil servants. A silver lining for them is a note of caution decreed by the Supreme Court in its recent judgement in State of Maharashtra vs Public Concern for Governance Trust.

The high courts and the courts below them sometimes pass adverse remarks about the conduct of persons in power while deciding petitions. In the above case, the Bombay High Court passed such strictures on a former chief minister and a top bureaucrat in the allotment of land to cooperative societies in Navi Mumbai. The high court passed such remarks without hearing them. In the case of the chief minister, the state government moved the Supreme Court to expunge the remarks; the affected politician himself did not come. However, the IAS officer appealed to the Supreme Court because he had to face disciplinary proceedings because of the remarks of the high court. The Supreme Court deleted the offending remarks and let them free.

In several judgements of the Supreme Court, it has been held that the right to reputation of a person is a facet of his/her fundamental right to life enshrined in Article 21 of the Constitution (Kiran Bedi case in 1989, Board of Trustees case in 1983, for example). "One is entitled to have and preserve one's reputation and one also has a right to protect it," the new judgement emphasised. No authority can infringe this precious right of everyone. Remarks could not be made without giving an opportunity to the affected party to explain his side.

In this case, the high court violated both the cardinal principles, according to the Supreme Court. "The nature of the remarks made in the high court judgement will cast a serious aspersion on the chief minister affecting his reputation, career etc. Condemnation without affording him an opportunity of being heard was a complete negation of the basic principles of natural justice," the apex court emphasised.

There are at least five leading judgements on this point. In AKK Nambiar vs Union of India (1969), certain allegations were made against the then chief minister of Andhra Pradesh. The Supreme Court refused to go by them as there was no evidence of mala fide intent. In S Pratap Singh vs State of Punjab (1964), there were allegations of a personal nature against the then chief minister and his wife. However, on examination of the evidence, the Supreme Court repelled them. In the recent case involving the railway minister, the Supreme Court spoke against making wild allegations against the CBDT, members of the income tax tribunal and public prosecutors when they were not before the court.

The Supreme Court had cautioned the high courts earlier also against making disparaging remarks in cases involving high authorities. As far as possible, such language should be avoided. In Dilip Kumar vs State of Assam (1996), it had laid down three tests to justify strictures. They are: 1) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself, 2) whether there is evidence on record bearing on that conduct justifying the remarks, and 3) whether it is necessary for the decision of the case, as an integral part of it, to discuss that conduct.

The unpalatable remarks made against the ex-chief minister of Maharashtra in the latest case failed in all these tests. The allegation was that he had accepted applications for housing plots from land sharks in the name of slum dwellers and he made notings on each of them, saying "please put up". The promoters later got prime plots. The high court concluded that there was a link between the chief minister's noting and the allotment of plots. It cancelled all of them, after passing the remarks which hurt the government. The Supreme Court did not find anything wrong in writing 'please put up'. According to the court, it was a "routine notation made in the normal course and is an action of forwarding the applications to the concerned department." By this judgement, the court has thrown a straw for politicians whose reputation is in quicksand.