Justice G. Jayachandran of the Madras High Court has said that Justice G.R. Swaminathan has exhibited bias against the State police by “showing interest in passing orders hastily without consulting the Bench partner (Justice P.B. Balaji)“ in a habeas corpus petition filed against the preventive detention of YouTuber ‘Savukku’ Shankar alias A. Shankar under the Goondas Act.
Answering a reference made to him due to the difference of opinion between the two judges in the Division Bench, Justice Jayachandran wrote: “Failure to afford opportunity to the State to file a counter affidavit when it was sought, and the bias of showing interest in passing order hastily without consulting the Bench partner renders the expression of opinion by the Hon’ble Mr. Justice Mr. G.R. Swaminathan non est.”
The third judge went on to state: “The Latin maxim audi alteram partem (no person should be judged without a fair hearing) is the very first lesson taught in law schools... When we say fair opportunity, it means fairness in all sense. Listing the matter on the next day of notice to decide the case for certain other reasons cannot be termed as adequate opportunity much less a fair opportunity.”
Referring to Mr. Justice Swaminathan’s explanation that he would not have quashed the detention order immediately and instead given an opportunity to the police to file a counter affidavit if two “highly placed persons” had not met him in person and requested not to hear the HCP on merits, Justice Jayachandran said, “the learned senior judge (in the Division Bench), in all fairness of a judge, had given his explanation.”
However, “the reasons which has triggered him to deny the opportunity to the State is more disturbing and make his finding on facts liable to be eschewed not only for want of completion by the opinion of the junior judge in the Bench but also for the semblance of personal bias against the respondent against whom a serious allegation of approaching through emissary is made,” the third judge said.
He also observed: “Rarely such [a] thing happens to a judge while discharging the duty. Even if such event happens, past history of this court says, judges used to report it to the Chief Justice and/or take action for interfering in the administration of justice and/or recuse from hearing the case. From the words of the learned judge, he being triggered by approach of two emissaries, has been forced to bypass the normal course.”
Justice Jayachandran also wrote: “Even getting annoyed or disturbed over back-door attempt to interfere in the administration of justice may induce negative bias... If a judge is disturbed by annoyance caused by the parties affecting his judicial tranquillity and balance during the discharge of the judicial function which requires impartiality and detachment, the same also causes bias.”
