Savukku Shankar case: Justice Swaminathan’s findings biased, says third judge; refers case to be heard afresh

CHENNAI: The reasons that prompted Justice GR Swaminathan to deny the opportunity to the State government while handling Savukku Shankar's habeas corpus petition (HCP) are more disturbing and make his finding on facts liable to be eschewed for the semblance of personal bias against the government, said Justice G Jayachandran, who referred the matter to another bench.

"Failure to afford the opportunity to the State to file the counter 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 Justice GR Swaminathan non-est," said the judge in the order.

Citing the Latin maxim, 'Audi Alteram partem' (No person should be judged without a fair hearing), Justice Jayachandran pointed out that it was the very first lesson taught in law schools in all democratic countries.

Noting that the bench failed to grant opportunity to the State to file a counter, the judge wrote, "When we say fair opportunity, it means fairness in all senses., 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."

Being triggered by the approach of two emissaries, Justice Swaminathan was forced to bypass the normal course. If such an event happens, judges used to report it to the Chief Justice, take action for interfering in the administration of justice, or recuse from hearing the case, he said. "Even getting annoyed or disturbed over back door attempt to interfere in the administration of justice may induce negative bias," read the judgment.

The order rendered by the division bench led by Justice Swaminathan was not a judgment with the split verdict but a unilateral opinion of one judge, which is not complemented by the opinion of the companion judge who shared the bench, and it suffered from incompleteness, Justice Jayachandran said, referring the matter to be heard afresh by the bench holding the HCP portfolio on June 12.

On May 23, the vacation bench led by Justice Swaminathan heard the HCP moved by Shankar’s mother A Kamala seeking to quash the goondas act detention of her son. In an unusual manner, Justice Swaminathan delivered his judgment quashing the detention the very next day, even before the State government filed the counter.

The judge said that he delivered the judgment, as two highly placed persons approached him asking him not to hear the HCP on merits. However, Justice PB Balaji, the other judge in the bench, had a different view that the State should be allowed to file the counter.

As the bench could not reach a consensus, the matter was listed before Justice G Jayachandran as the third judge to reach finality.