 |
| KC Agarwal J. |
Sealed Cover culture is not only is illegal but causes injustice. It is neither good for the state nor raises confidence about judiciary. In early stage of my career, it caused great injustice to some of the young students, on whose behalf I had filed a writ petition (WP). I tried to remedy it as a judge. However, before I tell you about the same, a few words about Krishna Chandra Agarwal J.
Agarwal J. was born on 15th January, 1934. After completing his law, he was enrolled as advocate of the Allahabad High Court on 8.8.1956 and was junior of Shanti Bhushan. He was diligent as well as intelligent. He became editor of Allahabad Law Journal as early as 1964 and was appointed Chief Standing Counsel of the State Government on 24.12.1970. Then, at a very young age of thirty nine years, he was appointed as a judge of the Allahabad High Court. Later he was elevated as Chief Justice of Rajasthan High Court then retired as Chief Justice Calcutta High Court on January 15th, 1996.
He was brilliant judge though Rajasthan and Calcutta lawyers disagree but they fail to realise that when he was there, he was already superseded for elevation to the Supreme Court and was frustrated as well as disappointed: it is not proper to judge him at such a time.
One of my uncles lived in Bangalore and whenever I was there, I used to go to meet DM Chndrashekhar J. for whom I had great respect and admiration. On one of my visits to Bangalore, Chndrashekhar J. asked me about Agarwal J. At that time he was already retired, physically and mentally unwell. Chandrashekhar J. remarked that the problems with young judges is that they start considering themselves CJI.
You can Understand Agarwal J.’s frustration at his supersession.
Despite being a brilliant judge, Agarwal J. was pro-government: it was almost impossible to win a case against State in his court. He was also arrogant, arbitrary and used to snub lawyers in court but was completely different person at his residence. There he was most courteous, respectful and a perfect host.
He was also a strict judge. One required courage to argue cases before him. But he had lighter side as well. There is one incident that I remember.
CSP Singh J. was equally brilliant but was liberal and pleasing judge. In those days, fresh cases in Allahabad were filed directly in the court. One day, lawyers came to know that he was sitting in second appeal (SA) jurisdiction. They got their fresh SAs from the residences and three bundles were piled up. However Singh J. did not sit and SAs were transferred to the court of Agarwal J. As soon as lawyers came to know of this, they took their SAs back. By the time, the three bundles reached the court of Agarwal J. only three remained. Two lawyers informed the court that there was some defect, so their SAs were listed after three weeks. This left only one SA of PC Srivastava, who was known for his humour.
Agarwal J. asked him as what was the substantial question of law in his SA. PC Srivastava answered that out of there bundles, three remained and now only he had courage to argue. Agarwal J. smiled and issued notice on the SA. With this background, let us come back to the injustice caused by sealed covered culture.
In 1980s, there were 15 Regional Engineering Colleges (now National Institutes of Technology). They used to hold their separate entrance examination. For academic session, 1981-82, entrance examination was conducted by Moti Lal Nehru Regional Engineering College Allahabad. It was held on 19-20th May 1981 in 45 centre in 19 cities. The superintendent of examination was head of Mechanical department. He submitted a report that papers were leaked. A report on some statistical analysis was submitted. A meeting was held and on the basis of the report, decision was taken that:
- Papers might have leaked in Allahabad only; and
- Re-examination of four times the students in the merit list be undertaken.
 |
| Motilal Nehru National Institute of Technology Allahabad Picture Courtesy website of the college |
I filed the writ petition on behalf of the students, who were not permitted to appear in the re-examination. They claimed that:
- The students securing high marks and in the list of four times the merit list are the ones likely to know the questions before hand;
- Re-examination may be held for all those, who had obtained qualifying marks or passed in English paper.
The case was taken up by a bench presided over by KC Agarwal J. The other judge was VK Khanna J.
SN Kackkar was not only a very good lawyer but very influential one as well. He was Advocate General of UP and defended emergency and then surprisingly became Solicitor General, Attorney General and Law Minister during Janta Party regime. After shifting to Delhi in 1977, he never came back to Allahabad and argued only two cases in the High Courts: one was his personal case another another was this case. He defended the action of the admission committee.
He produced the statistical report in a sealed cover on the basis of which the aforesaid impugned decision was taken. I objected that it may not be perused by the court, unless it is shown to the Petitioners.
Despite serious objections, the court considered the same, without showing to the the petitioners and dismissed the WPs (Writ A 7505 of 1981 Ravidra Nath Naik v. Coordinator, Admission Committee decided on 14-07-1981) on the ground that judicial review is limited and urgent action was required. Both reasons were wrong: court has power to set aside an arbitrary decision and in any case re-examination was being held.
The members of the Admission committee, or anyone part of the report or their lawyers or the judges had no knowledge of Statistics. It was not a subject taught in the Moti Lal Nehru Engineering College, Allahabad; it is still not taught there; Department of Mathematics itself was started in 2003.
I have some idea of Statistics as it was a subject in my graduation. There are two classic books in Statistics:
- How to Lie with Statistics by Darrell Huff
- Facts from Figures by MJ Moroney
We were taught with the help of these books.
The first one as the name suggests, explains how anyone, with an axe to grind, can achieve his not-so-honest results and how it may be avoided. In the second book, the first chapter in is titled as 'Statistics Undesirable'. It begins,
"There is more than a germ of truth in the suggestion that, in a society where statisticians thrive, liberty and individuality are likely to be emasculated"
Then goes on to say,
"The cynic sums it up in the old tag: ‘There are lies, damned lies, and statistics.’"
Everyone was fooled by the report that no one understood and the only one (myself), who could show some light, was not shown the same. Candidates that were in the the four time the merit list, were the ones, who likely knew the questions before hand: no wonder, it was the worst batch ever; many with negative marks were admitted and most of them phased out after first year.
A injustice was done by the Bench. I never got opportunity to undo it as a lawyer but I did get opportunity as a judge in M.D. Overseas Ltd. v. Director General of IT {MANU/UP/1056/2011: 2011 (2011) 241 CTR (All) 108: (2011) 54 DTR (All) 189}. Here are the facts of this case.
A search was conducted by the Income Tax department in different offices of the MD Overseas Ltd. It filed writ petition challenging the same. A prima facie case against the search was also made out. The Income tax department were willing to show the reasons to the court but not to the petitioner. They also cited decisions of the Supreme Court and the High Courts supporting the view that reasons could not be shown to the person, whose premises was searched.
We distinguished all rulings and held that the only source of information but not the information itself is protected under section 125 of the Evidence Act: the reasons for search can neither be perused nor relied by the court unless shown to the affected party. However privilege may be claimed under section 123 of the Evidence Act. In case, the claim of the privilege is successful then information can neither be divulged nor relied by the court.
The law in this regard is that the court may -
- Not see any document/ information produced by any party unless it is shown to the other side;
- Direct production of any document/ information and show it to the other side unless privilege is successfully claimed under section 123 of the Evidence Act. Even then, the court is entitle to examine it, while deciding the question of privilege.
An injustice that young students suffered in 1981 was undone after 30 years in 2011. Nevertheless, the culture of sealed cover, showing information to court and not to the affected party, still continues. Sooner it ends: quicker will be restoration of people’s faith.
No comments:
Post a Comment