Last week the Gujarat Government appointed a Commission to inquire into the changes in demographic patterns in Gujarat ‘since independence’. The idea apparently, was to identify the reasons behind the ‘polarisation’ and migration of population.
The first admission that comes out of this action is that fact that there has been polarization in Gujarat. The ghettos in Ahmedabad are evidence of that; but the Government had not formally acknowledged this fact yet. An important aspect of the commission’s mandate is to give “recommendations and policies as a guidance” for stopping the polarization of population in the state.
The Appointment of such a Commission has received criticism from a large number of people. The principal argument being that it would already increase the already present polarization in the state rather than mitigate it. That however, it not the point I’d like to write on. My focus is more on a certain member of the Commission, his appointment and the legal relevance of it.
The Commission is to be headed by Justice BJ Sethna, a retd. Judge of the Gujarat High Court. Who is he? Think best bakery and the Gujarat High Court upholding the acquittal of the 21 accused in the case. Justice Sethna was a member of the division bench that gave that ill fated judgment. If the reader recollects, the judgment also stated that Zahira Sheikh was not threatened; a false statement proved by the fact she is now in jail for perjury.
The Judge then has some connection with the Gujarat riots. Without imputing any damage, he is still ‘interested’ in this matter considering the fact that most of the polarization started after the riots in 2002 and not since independence as the Gujarat Gov. makes it out to be. Probably it could also be the just because a judge has given a judgment in one manner, it should not be imputed that he cannot give a decision/ report otherwise. But is must be said that his very history and background creates a prima facie doubt as to the character and impartiality of the Commission.
There is an age-old principle in law that a judge is presumed independent and free of bias. But even this principle does not stop a judge from declining to hear a matter or sitting on a Commission. The most recent incident in this manner is when Justice Katju made comments about a Muslim having a beard and later declined to hear the review petition and transferred it stating that it was inappropriate for him to hear the matter now.
In fact, a few years ago the House of Lords dealt with the question of Lord Hoffman’s giving a judgment in the Pinochet case. The submission was that since the judge was closely associated with Amnesty International, he should not have sat on the bench and thus the judgment he gave earlier was void. The house of Lords, while negativing this contention went at lengths to explain judicial bias and the extent to which it can invalidate a judgment. (Readers may read the judgment here to know more)
The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.
Even without a legal point on this, the appointment of Justice Sethna exposes a certain degree of malice and gives and idea of the intentions of the Gujarat Government in appointing this Commission. With such factors present, the result is sort of already known even before the Commission has commenced its work.
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One Comment
though it’s got nothing to do with the focus of the post, i want to point out that ahmedabad was heavily segregated even before 2002. this is not to squabble with your words “most of the polarisation”, but to indicate the pogrom was in the making for a while.