The Office of Advocate General Odisha:
Dangerous signals ( Part-1)
The news that Sri Ashok Kumar Parija, the incumbent AG of Odisha appeared as the counsel for the petitioner KIIT (Kalinga Institute of Industrial Technology) Bhubaneswar, a private body and could secure a stay order from the Orissa High Court on the operation of a 92-page, exhaustively-reasoned-out Decision of a statutory authority called Odisha Information Commission, has in fact stupefied many an informed quarters including the legal fraternity at large in Odisha and beyond. In the WP (C ) No.25922/2021, the stay order as sought for by the petitioner KIIT was granted by a single-member Bench of Justice Sri Biswanath Rath on 27.08.2021, only after hearing Sri Parija, who, strangely enough, appeared not in his official capacity as AG of Odisha, but as a Senior Advocate of the Odisha Bar. Be that as it might, from the cut-and-dried stay order so passed, it is not possible to ascertain either the grounds availed by Sri Parija or the rationale that worked behind the Judge’s Order itself.
Granted that a Judge of the High Court enjoys the discretion of issuing an interim stay order, the points at issue which perturb the legal literati and political pundits across the state and beyond are quintessentially the twin as follows: (1) Whether a person such as Sri Ashok Parija sworn-in as the Advocate General under Article 165 of the Constitution to serve as the chief legal officer for the state is a Janus-faced entity, exceptionally privileged with a personal discretion to act at one moment in his official capacity as the AG for the State and at the next moment as mere Ashok Parija in the private capacity of a Senior Advocate? Precisely speaking, does the Constitution allow a split persona in respect of the AG of a State? And, (2) Given the fact that Sri Ashok Parija, who acts and stays as the AG for a State and that too during the pleasure of Governor the head of the state, can he favour a non-state private body such as KIIT which is engaged in running mega business concerns around both general and technical education, and go against the reasoned-out Order of a statutory authority called Odisha Information Commission, which is a state entity within the meaning of Article 12 of the Constitution? Precisely speaking, the question is, whether the AG of a State, who is solely meant to act ‘for the State’ (vide the title of Article 165), can act against a state entity and that too, only to favour a private entity?
Before the cardinal issues at hand as framed above are taken up for an in-depth critique in the light of constitutional and statutory provisions that are in place, it is worth taking a quick glance at the rival Parties mentioned in the cause list of the High Court’s Interim Order dated 27.08.2021. The Petitioner was the KIIT, Bhubaneswar, which, as learnt from the KIIT’s website itself https://kiit.ac.in, was founded by one Prof Achyut Samanta in 1992 with a humble investment of Rupees five thousand only. It was then a small NGO running a vocational centre with 12 students and 2 staffs only, but has grown up by now to be a massive Deemed-to-be University comprising 28 schools under 100 academic programmes for a total of 30,000 students along with a 2500-strong faculty, accommodated in 23 world-class campuses including 16 sports complexes having swimming pools and 15 food courts- all thriving in a sprawling area of 25 sq. km called KIIT township in the heart of the capital city of Bhubaneswar. Besides, as many as 60 countries of the world are also represented in its student population. As per the admission of the KIIT, they could reach to such an outstanding position due to the generous contribution of land, grants and other resources from both Government and non-Government sources including several foreign countries. As a matter of fact, such piecemeal information extracted from the KIIT’s colourful website are only a miniscule of the massive inventory of world-class excellence, eminence and expertise that the KIIT supposedly commands as per the said website. Above all, as learnt from the impugned order of OIC dated 05.08.2021, KIIT has also appointed Public Information Officer and First Appellate Authority as required on the part of a Public Authority under RTI Act 2005, but has all along refused to disclose any information to any information seeker under the said Act. That is the ruse and riddle around which the controversy around KIIT has been raging all through and still refuses to subside despite the recent Stay Order from the Orissa High Court that Sri Ashok Parija a Senior Advocate could avail to the benefit of his illustrious client albeit at a great risk to his official incumbency as the AG of Odisha.
As to the opposite parties as described in the cause list of the said HC order, they were Odisha Information Commission and another. As is well known, the OIC is a statutory authority established under Section 15 of RTI Act 2005 enacted by the Parliament with a view to bringing transparency and accountability in the functioning of the State and its organs, legislative, executive and judiciary and thereby building up an informed citizenry that can contain corruption and mal-governance plaguing the whole system. The ‘Another’ Opposite Party, though not named in the HC Order was none else than a common citizen like you and me, namely Sri Pradip Pradhan, whose 2nd appeal made before the Information Commission supplemented by his numerous submissions made during the years of adjudication, had ultimately persuaded the then Chief Commissioner Sri Sunil Kumar Mishra to declare the KIIT a deemed Public Authority within the meaning of Section 2(h)(ii) of RTI Act and accordingly liable to make disclosure of information relating to itself and its multifarious activities to the information seekers as required on the part of a deemed public authority under RTI Act 2005.
Strangely enough, this very Order of the Chief OIC vide SA No. 228/2015 dated 05.08.2021, apparently a just and reasonable one, did however prove a millstone around the KIIT’s neck, under the unbearable pressure of which the latter in no time rushed to the Orissa High Court and AG of Odisha Sri Ashok Parija to rescue him from the risky label of a ‘public authority’ which the Commission’s decision sought to endow on it. One feels utterly bemused as to why did KIIT’s founder Sri Samanta, to start with and subsequently the AG of Odisha Sri Parija took the OIC’s decision as an incorrigible affront to their self-cultivated wisdom, when the RTI query raised by Sri Pradhan way back on 01.09.2014- so to say, the prime mover of thewhole episode culminating in HC’s Stay Order dated 27.08.2021 - was so simple and innocuous one, i.e. “information regarding appointment of Ex-State and Central Government employees in KIIT University and its allied institutions”. It seems to be all the more quixotic on their part to keep on stubbornly refusing to share such a stupid piece of information with public, when the KIIT’s website itself is abuzz and agog in respect of a massive 2500-strong faculty of scholars and researchers par excellence.
Part-2
Confusions are galore among the legal fraternity, media circles and as well independent intelligentsia across the spectrum, firstly as to whether the OIC (Odisha Information Commission), against whose Order the learned AG Odisha Sri Ashok Parija was briefed by a private body called KIIT to argue, albeit in his personal capacity, before the honorable Orissa High Court, is a state entity within the meaning of Article 12 of Constitution or not, and secondly, if so, whether it is a state entity operating within the jurisdiction of the State of Odisha or not. A cogent answer to the 2nd ponderable, does in fact hold the key to addressing to the central problematique i.e. whether the said act of Sri Parija as the incumbent AG of Odisha did anyway conform to the letter and spirit of law laid down in Article 165 of the Constitution- the very article owing to which Sri Parija enjoys his present identity as the tallest law officer of Odisha state and his special rights and absolute immunities equal to that of a Minister, for partaking in any legislative proceeding of the state (vide Articles 177 and 194), not to speak of his fabulous remuneration that the Governor might allow to his satisfaction, along with a host of perks and privileges attendant on his eminent constitutional office.
The special concern that prompted this self-inspired author to look in depth into the above mentioned ponderable is a critical riposte by a former comrade of mine on Face-book, which justified the appearance of Odisha AG Sri Parija for a private party as against a state entity, quoting the ground of a precedent set by the immediately preceding AG Sri Surya Prasad Mishra who, according to him, had appeared for a private party in dispute with a state entity called NHAI (National Highway Authority of India). Without going into the factuality or otherwise of this case, this author has no hesitation at all in saying, were it a fact that the former AG of Odisha Sri Mishra stood against NHAI (a state entity) in favour of a private party, he has committed no mischief, for the simple reason that NHAI is a state entity operating, as its nomenclature suggests, as an instrumentality of the Central Government, whereas the Odisha Information Commission, which, as we shall see in detail, is a state entity operating as a quasi-judicial, statutory authority within the jurisdiction of the State of Odisha. There are umpteen cases one can cite where the earlier AGs and even present AG of Odisha have fought against the Central level state entities and also against other state governments and their instrumentalities, and that is exactly what they are mandated to do in their statutory capacity of Advocate General for the State of Odisha. For instance, in the landmark case around Niyamgiri vide WP (C ) No. 180 of 2011 that was decided by the Supreme Court on 18 April 2013, two state actors, namely Orissa Mining Corporation Ltd ( a state instrumentality of the State of Odisha) and Ministry of Environment and Forests (a state instrumentality of Government of India) fought against each other and then AG of Odisha had, obviously enough, taken the side of OMC running counter to the Min. of E&F, GoI. More obvious is the adversarial role that the AG of a State ought to play in a case lodged against another State Government, such as Odisha versus Andhra Pradesh, which is now running in Supreme Court around the disputed borders of Kotia Gram Panchayat. Thus, precisely speaking, the bottom-line for an AG of Odisha is the inviolate maxim that he can favour or oppose any entity private or state in a court dispute, but certainly can’t go against the State of Odisha as such or any of its instrumentalities. And that is exactly where the incumbent AG Sri Ashok Parija did err and that too egregiously, maybe, due to his innocent ignoramous-ity or his studied complicity with the concerned private business-party in lure of some fabulous gratification, known best to him and his beneficiary-client. Either way, Sri Parija has wrecked a terrible, nay, an undo-able disaster to the august constitutional office of Advocate General of Odisha by embroiling it in a conspicuous case of conflict of interest.
Now, coming to another contested issue as to whether the Odisha Information Commission deserves the epithet of a state entity belonging to the State of Odisha or not- raised by some senior lawyer friends- we need to look at some salient aspects of the birth, constitution, financing and functioning of the Commission in juxtaposition to the AG of a State, and that too exclusively from a statutory perspective, in order to put all doubts at rest, for good. Firstly, though the Central law i.e. RTI Act 2005 in its Section 15 provided for the constitution of a Commission for every state, the specific entity called Odisha Information Commission came into being by Govt of Odisha’s I & PR Notification No. 495/2005 dated October 29, 2005 issued on the Order of the State Governor, just as Sri A.K. Parija was appointed as the AG of Odisha by a Govt of Odisha Notification vide No. I-LR-AG-21.195981 dated 24.06.2019. Then, it is the self-same Governor of Odisha who has appointed all the Information Commissioners of Odisha [Section 15(3) of RTI Act 2005] just as all the Advocate Generals of the State including Sri Ashok Parija the present incumbent [Article 165(1) of Constitution]. The self-same Governor Odisha is also the disciplinary authority in respect of both State AG [Art. 165 (3) of Constitution] and Information Commissioners (Section 17 of RTI Act 2005) for the purpose of removal from the office. The salaries and allowances etc payable to the Information Commissioners and staffs of the Commission and as well the entire expenditure for the performance of the Commission is to be borne by the State Government (Section 16 of RTI Act 2005) just as the remuneration for the Advocate General is sourced from the State exchequer as determined by the Governor [Article 165(3) of Constitution]. Moreover, the functioning of Odisha Information Commission is governed by Odisha Information Commission (Appeal Procedure) Rules 2006 read with Odisha RTI Rules 2005 and Amendment Rules 2006, all of which being the ultimate creatures of Odisha Legislative Assembly are doubtless the definite instrumentalities of the State of Odisha. Thus, keeping in view these constitutional and statutory provisions which are loud and clear, there shouldn’t linger any misgiving in any quarter as to the fact that the Odisha Information Commission is not only a state actor in general within the meaning of Article 12 of the Constitution, but also a state actor belonging to the domain of the State of Odisha in particular.
Under the circumstances, Sri AK Parija the incumbent AG of Odisha by sub-serving in disguise the KIIT, a private business entity in opposition to Odisha Information Commission, an established and full blown state actor belonging to the State of Odisha, has not only profaned the office of AG Odisha, but also committed a terrible sacrilege against the constitutional provisions governing the Advocate General for a State .
Part-3
Not only the learned professionals belonging to diverse fields, but also quite many law professionals hold a facile notion that the Advocate General for a State enjoys the discretion of appearing in any case in any court of law functioning in the State. They are sadly mistaken, if we look at the relevant provision of Constitution which synoptically deals with such essential matters as appointment, duties, tenure of office and remuneration in respect of a State’s Advocate General, that is, Article 165 titled as ‘Advocate General for the State’. It runs as follows:-
(1) The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate General for the State
(2) It shall be the duty of the Advocate General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.
(3) The Advocate General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine”.
Paraphrasing the above provision, one can say, the entire legal work that the AG for a State has to undertake is completely determined by his employer the Governor, from time to time, along with the remuneration payable to him for the services to be so rendered by him. Besides, he is required to discharge only those functions which the Constitution or any statute might have conferred on him. Of course, in Article 177 (Rights of Ministers and Advocate General as respects the Houses) the Constitution bestows upon the AG for a State the right to participate in any proceedings of the state legislature or any committee thereof like a Minister, but unlike the Minister without any right to vote. Here it needs to be underlined that such qualified right of the AG to participation is limited exclusively to the legislative domain of the State, not extendable to the judicial forums like courts and tribunals or quasi-judicial forums like commissions and authorities. However, the Attorney-General for India, who is apparently the Central counterpart of the Advocate-General for a State and appointed by the President of India, enjoys ‘the right of audience in all courts in the territory of India’ though unlike the AG for a State he has no right to participation in legislative proceedings of the Union.
Coming to the recent ruckus that cropped up over the role of the Odisha AG Sri A.K. Parija who served as the counsel for a private-business entity called KIIT, Bhubaneswar in opposition to a state entity called Odisha Information Commission, some unavoidable but pertinent questions have popped up in public domain and cry out for an immediate resolution, such as-
(i) Did the Office of Governor direct Sri Parija to serve as the counsel for a private business party KIIT for securing a stay order in its favour from the Orissa High Court in respect of a reasoned-out Order passed by OIC?
(ii) Did Sri Parija the AG for Odisha seek the approval from the Governor Odisha to serve as a counsel for the KIIT in opposition to OIC, in his private capacity as a Senior Advocate instead of his official capacity as AG for Odisha?
(iii) Since Sri Parija holds the constitutional post of ‘the AG for the State’, that can’t act against any State entity, what were the compulsions that led him to demean the Order of a state entity ‘OIC’ before the OHC, only to favour a non-state private-business entity ‘KIIT’ Bhubaneswar?
(iv) In view of a pronounced proclivity of Sri AK Parija the incumbent AG of Odisha to promote the cause of private-business entities at the cost of state entities of Odisha as is evident from the instant case, is there any mechanism in place at the Office of Governor to monitor and checkmate the same?
(v) What are the remedial and disciplinary provisions put in place in the Office of Governor Odisha vis-à-vis the recalcitrant, transgressive and anti-state acts of omission and commission on the part of Advocate Generals like the incumbent one Sri AK Parija?
Part-4
Some law-knowing brothers have commented that the AG insofar as he appeared as a counsel for a private Party (KIIT) in opposition to a State Party (Odisha Information Commission) in WP (C ) 25922/2021 was technically correct, though ethically wrong. Before buying this argument, one needs to ask, where is it mentioned that the AG for a State can argue in favour of a private Party, that too, against a State Party which is under the veritable control of the very State for which he has been appointed by the Governor as the Advocate General under Article 165 of the Constitution? In absence of any detail statutory provisions or authoritative guideline on this specific question except the express provisions contained under Articles 165 and 177 of Constitution, most lawyer friends tend to answer it by referring to this or that precedent where Mr. X as AG stood for Mr. Y a private party in litigation against Mr. Z, a State Party, and thereby justify their ‘technically correct’ line of reasoning.
Let’s try to understand the issue with the help of examples from our day-to-day legal practice. If Mr. A, a Private Company engages me as his retainer, I can go against another Company or against any Government entity, if need be, and that is exactly my mandate. But, can I go against the very Company which has engaged me as a retainer? The answer is an emphatic no. Similarly, can the AG of a State go against a state entity under the control of his employer-State? Ordinarily the answer would be no. But, here is a catch! Unlike a Private Company, which is a single entity unto itself, the State is a massive conglomerate of countless state entities, such as from Panchayats to Assembly, BDO to Chief Secretary, RI to Governor, NAC to Municipal Corporation, Primary School to University, and also a diversity of Companies, Societies, Agencies, Authorities and Commissions and the like. It may so happen that a dispute arises between the two state entities, such as a Gram Panchayat and a District Collector. A pertinent question may arise- on whose side the Advocate General shall take? A constitutionally valid answer would be- the AG shall play exactly that role as directed to him by the Governor or for that matter, the State Government.
Next, there may arise a dispute between a private individual and a Police Station, which is manifestly a state entity. Our conventional thinking is that the Advocate General shall take the side of Police, the state entity. But, if the State Government, taking into account peculiar facts and circumstances of the case, decides to help the complainant individual, who has been in their opinion, wrongfully brutalized or victimized by the concerned Police personnel, then they may ask the AG to give protection to the victimized individual as against the Police which is obviously a state Party.
There may arise also a civil dispute between two rival private parties, in which the State or for that matter the AG as its chief law officer, has apparently no role to play due to non-involvement of any stakes of the Government. But, if the State Government decides to side with a Party for reasons known to them, they may direct the AG to play a role so as to protect that Party of their choice as against the other party.
Thus, there is no hard and fast statutory determination as to which Party the AG shall plead for, though he has been described as Advocate General for the State and of the State in the Article 165 of Constitution. The role of the AG in each case is absolutely dependent upon the direction given by the State Government from time to time and on case-to-case basis. It may sound odious, but as a matter of fact, he has no choice, no freedom, let alone any discretion whatsoever to exercise as to which Party to a dispute he shall plead for or oppose.
The Article 165 deals inter alia with the role that the AG for a State is required to play in respect of all legal matters. The Clause (2) of the said Article says, “It shall be the duty of the Advocate General to give advice to the Government of the State upon such legal matters and to perform such other duties of a legal character, as from time to time, be referred to or assigned to him by the Governor … .” Thus, the AG can’t even tender a piece of advice to the State Government on any legal matter unless he has been asked to, by the Governor. Similarly, the AG can’t suo motu decide as to which Party he should plead for or oppose in a particular case, unless he has been asked to, by the Governor. Needless to say, going by the general scheme of the constitution, Governor has also no discretion of his own in such matters for he has to act as per the aid and advice of the Council of Ministers headed by the Chief Minister vide Article 163(1) of Constitution. Thus, it is for all practical purposes the Chief Minister of the State who is to direct the AG what to do in the context of a particular litigation, though technically the communication of any such direction is to be made from the office of Governor. Besides, the question as to whether the AG for a State, during his incumbency as such, can plead for any Party by relinquishing his Official designation of AG and using instead his personal designation i.e. Senior Advocate, is to be settled in the light of Clause (2) of Article 165 quoted above, that is, if and whether the AG was directed by the Governor to do so.
In the instant case of WP (C ) 25922/2021 in the matter of KIIT, BBSR vs Odisha Information Commission and another, which was disposed of by a single judge bench of Justice Biswanath Rath on 27.08.2021 and where the incumbent AG Sri Ashok Parija appeared as the Counsel for a private Party KIIT in his personal capacity of a Senior Advocate, the said Judge before hearing the matter should have asked Sri Parija a couple of mandatory questions- (1) Whether you have resigned from your post of AG to appear for a private party?, and if not (2) Whether you have been directed by the Governor to appear for a private Party to argue against a State Party? The fact that Justice Sri Rath didn’t ask Sri Parija these apparently unsavory but strictly indispensable questions and simply allowed him to go his way is as much ultra vires his constitutional post as a Judge of the High Court as the questionable role of the AG Sri Parija was ultra vires the Article 165 of Constitution insofar as he appeared in the private capacity of a senior advocate during his incumbency as the AG for Odisha.
Part-5
Vandalization of the High-court Turf by a Perverse Judge in club with AG Odisha
“Our concern has been to effectively deal with and rectify instances of deviant behaviour among members of the superior judiciary to safeguard the fair name of judiciary, its independence and its image. A few unworthy elements here and there are sullying the image of the judiciary. It has to be checked. For judiciary, its image and its reputation is all important; if that is tarnished, nothing remains. It is equally necessary to create mechanisms which serve to enhance the image and effectiveness of Superior Judiciary”, so rued a Consultation Paper on ‘Superior Judiciary’ (vide Para 1.5 https://web.archive.org/web/ 20150409012244/http://lawmin.nic.in/ncrwc/finalreport/v2b1-14.htm) which was prepared by an Advisory Panel comprising Justice Shri H.R. Khanna and Justice Shri B.P. Jeevan Reddy, as a part of the 2002 Report of the National Commission to Review the Working of the Constitution chaired by Padma Vibhushan Shri M.N. Rao Venkatachaliah a former Chief Justice of Supreme Court. ‘A few unworthy elements here and there’ as could be spotted then by the NCRWC way back in 2002 have in all likelihood mushroomed into countless replicas during the intervening two decades to the effect of transmogrifying the bulk of judiciary into a veritable can of worms.
One such contemptible character as typifies ‘the unworthy elements’ stalking the superior judiciary as of today is a sitting judge of Orissa High Court Sri Biswanath Rath (vide Profile of Justice B. Rath at https://app.box.com/folder/148794125930), who together with no less a despicable character namely Sri Ashok Parija the incumbent AG of Odisha, could recently showcase their braggart that nobody within or outside the judiciary could ever dent them even if they openly barter away the constitutional turf of Orissa High Court to a client of their choice no matter how much dubious, extortionist and law-defying entity it might be, such as KIIT a private body and its megalomaniac super-boss Sri Achyut Samant, an edu-businessman turned MP. The unique theatre where such a superbly spicy dirty picture was played out in full glare of public view was but the sanctimonious zone of Orissa High Court, and its final scene a two-page diktat from the single judge-bench of Justice Biswanath Rath to the triumphant jubilation of other two of the triumvirate, vide High Court Order dated 27.8.2021 at https://app.box.com/file/877352836579).
As could be seen from the Petition of KIIT, it was filed on 26.8.2021 (vide https://app.box.com/folder/149056457085 ) and as we have seen, it was decided on the next day only and that too by the single Judge Sri Rath being the quorum with AG Sri Ashok Parija donning the disguise of a Senior Advocate to serve his plutocratic client. It is doubtful if Sri Parija did ever move with such alacrity to get the urgent cases of the Govt heard so instantaneously, for which he has been appointed by the Governor under Article 165 of Constitution, as he did in the instant case in favour of an avowedly private party arrayed against a State entity called Odisha Information Commission. Further amazing is the queer fact that the Judge Sri Rath in his Order described Sri Ashok Parija Sr. Advocate as the Counsel for the Petitioner ‘assisted by Advocate Sri S.P. Sarangi’ whereas the Petition was signed by Sri Sarangi as the only Advocate for the Petitioner KIIT. Moreover, the Judge Sri Rath’s Order carries no mention as to how the Advocate General Sri Parija hiding his official designation did appear in the guise of a Sr. Advocate for the case, with the bona fide Advocate Sri Sarangi relegated to the position of his Assistant. And further baffling is the quixotic fact that while the Petitioner prayed for a full-scale Rule Nisi adjudication of their Petition vis-a-vis the Commission’s Order (vide Prayer at https://app.box.com/folder/149056457085), the Judge Sri Rath went an extra mile to show fabulous favours by way of granting an interim stay on the operationaliszation of Commission’s impugned Order. What else could be the earthly reason behind such a conspicuously outrageous volte face on the part of the aforesaid 3-Member syndicate than a clandestine, quid pro quo deal fixed among them to bail out by hook or crook the KIIT and its self-proclaimed founder-promoter Sri Samant from the impregnable quagmire into which it was thrown down following the Commission’s Order dated 5.8.2021 (vide Commission’s Order https://app.box.com/folder/148794125930 )?
Another perplexing question that haunts many a law-literate observers is as to how and why was Pradip Pradhan (an RTI activist, on whose application and appeal the Commission undertook a 4-yeras long adjudication) dragged in as a necessary Opposite Party to the case by the Petitioner-KIIT and subsequently accepted as such by his collaborators-duo (AG and Judge), though the Petition’s sole prayer was for quashing of the Commission’s impugned Order? As is well known, right since 2014 when Sri Pradhan sought for information about KIIT under the RTI Act, Sri Samant the de facto proprietor of KIIT had taken him as his sworn bête noire and harboured an incorrigible animosity against him to no end. It is therefore understandable that Sri Samant in order to satisfy his vendetta against Sri Pradhan would make him an Opposite Party to the case. But the question looms large as to why Justice Sri Rath and AG Sri Parija with whom Sri Pradhan had no truck at all, did entertain the imp-leading of Sri Pradhan as a necessary Opposite Party along with Commission, there being absolutely no rhyme or reason? It seems, being induced by their benefactor-client Sri Samant, both Judge and AG took Sri Pradip Pradhan as their common enemy too and wreaked their vengeance by allowing his name as the Opposite Party No.2.
As is well known, the Bangalore Principles of Judicial Conduct (2002) adopted on 27 July 2006 by the UNESCO, to which Indian judiciary is a party (vide Bangalore Principles https://app.box.com/folder/ 149113727871 ), in Para- 2.5.2 proscribes the participation of a judge in the proceedings of a case if the concerned judge previously served as a lawyer or was a material witness in the matter in controversy. As a matter of fact, Justice Sri Rath not only served as a lawyer for the OP No.1- Odisha Information Commission (vide Profile) but also delivered a Judgement in 2014 centring inter alia the controversial issue of Petitioner- KIIT to be covered under RTI purview or not. (vide Judgement 2014 https://app.box.com/folder/148794125930). Thus Justice Rath, who served as a lawyer to the OP No.1 in the past and commands as well a close knowledge of both the disputant parties along with that of the issues in controversy between them, should have politely recused himself from hearing the instant case showing the potential ground of a conflict of interest, but having not done so, he has outrageously violated a celebrated maxim of natural justice- nemo iudex in sua causa or no one can be judge in his own cause. Moreover, Justice Rath by dishing out diametrically opposite messages in Judgement of 2014 (KIIT is covered under RTI Act) juxtaposed to the interim Stay Order of 2021 (KIIT not to be covered under RTI Act) has engendered an unprecedented mess for the entire judiciary and as well for RTI users at large as to which one to follow, the Judgement of 2014 or Interim Stay Order of 2021.
The above mentioned universal principle of judicial ethics was emphasised for adherence by the judges in the judgement delivered by former Supreme Court Justice Shri M.N. Rao Venkatachaliah in the matter of Ranjit Thakur vs Union Of India And Ors: 1987 AIR 2386 decided on 15.10.1987, where it was inter alia held, “The proper approach for the Judge is not to look at his own mind and ask himself, however, honestly, "Am I biased"?, but to look at the mind of the party before him”. He quoted Lord Denning in corroboration of the point he made, “It (the court) does not look to see if there was a real likelihood that he (judge) would, or did, in fact, favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was impartial ... if right minded persons would think that in the circumstances there was a real likelihood of bias on his part, then he (the judge) should not sit...". (vide Judgement 1987 at https://app.box.com/folder/149113727871). Echoing the tenor of such deliberation by the distinguished jurists of India and abroad, the Restatement of Values of Judicial Life, adopted by the Chief Justices’ Conference of 1999 as a Code of Judicial Ethics has expounded 16 Cardinal Principles for abidance on the part of each Judge, and its first principle runs as follows: “Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided.” (vide Restatement of Values at https://app.box.com/file/879109077433).
As most jurists have opined, a single deviant behaviour on the part of a judge of superior judiciary can go a long way in bringing disrepute to the courts of law and eroding people’s faith in them. As a part of the Collegium System the Supreme Court and High Courts of the country have therefore devised an ‘In-house Procedure’ (vide In-house procedure https://app.box.com/folder/149113727871) to receive and deal with the complaints arising from deviant behaviour of any judge belonging to superior judiciary, so as to check corruption, misfeasance, politicisation and other such malaises eating into its vitals. Needless to say, it is therefore expected that both Chief Justice of India and Chief Justice of Orissa High Court, who are not only masters of muster but also the leaders of collegiums at their respective levels, would take up an appropriate enquiry to be followed by an equally appropriate remedial action vis-a-vis the deviant behaviour of Justice Biswanath Rath, who out of some vested interests or the other, could commit a brazen infraction of India’s Code of Judicial Ethics or internationally accepted Bangalore Principles, so that the bruised faith of the common people in the judiciary’s independence, impartiality and propriety can be restored at the earliest.
Part-6
To throttle Information Commission & RTI Activism a High Court turns into a Kangaroo Court
On 27th Aug 2021 the Orissa High Court held an abrupt session in the style of a Special Court Martial to dispose of a Writ Petition (civil) together with an Interlocutory Application bearing No. 25922/21 and No. 12024/21 respectively filed just the day before by KIIT (Kalinga Institute of Industrial Technology), Bhubanswar whose chief functionary happened to be none else than Sri Achyut Samanta an influential edu-businessman turned Member of Parliament. Both the applications were indeed disposed of as hurriedly as these were filed and listed, to the absolute satisfaction of the said Deponent. All this were possible precisely due to a naked abdication of constitutional obligation under Article 165 by the AG Sri Asok Parija who appeared in his private capacity for his private-party client KIIT going against the Odisha Information Commission a State Party within the meaning of Article 12 of Constitution. Be that as it might, the ex parte Order passed by the single Judge Sri Biswanath Rath under Parija effect, declaring an indefinite stay on the operationalisation of a well-reasoned, exhaustive Order of Odisha Information Commission dated 5th Aug 2021 took the legal fraternity by utter surprise, since the said Order threw to the wind well established canons of Civil Procedure Code 1908 that govern the issue of a stay/injunction by a Judge of any Court.
Firstly, going by the Proviso to Rule 3 under Order 39 of CPC 1908, the Court while granting an ex parte stay or injunction as prayed for by a particular party ought to record the reasons in its very Order as to why such ex parte order i.e. an Order issued without giving an opportunity of hearing to the Opposite Parties, was deemed urgent and compelling in the interests of justice. But, as one can see, the ex parte stay order issued by Justice Biswanath Rath didn’t carry any such mandatory note on the compulsion or urgency that lay behind his decision to issue the Stay. It is worthwhile to recollect that the Commission in its Decision dated 5th Aug had declared vide Para-13 that the KIIT was a public authority as per Section 2(h)(d)(ii) of RTI Act 2005 and therefore obligated to furnish the required information to the appellant (Sri Pradip Pradhan) within 30 days. It is again worth recalling that Sri Pradip Pradhan way back in 2014, had sought for such an innocuous piece of information in Form-A, as the information regarding “appointment of Ex-State and Central Government employees in KIIT University and its allied institutions”, denial of which by the Senior PIO of the University triggered off a 7-years long dispute that culminated in the above said decision of the Commission. Under the circumstances, Justice Biswanath Rath as required under Proviso to O.39 R.3 should have noted in his Order as to what disaster would have befallen the Petitioner-KIIT if the said information would have been shared by them with Sri Pradhan in compliance to the Commission’s Order. The ex-Parte Order of Justice Rath is therefore not only vitiated by non-compliance to the said Proviso of CPC, but also tainted by a palpable favoritism and partiality shown to the Petitioner- KIIT on one hand and a trenchant animosity and ill-will towards the Opposite Parties- Odisha Information Commission and RTI activist Sri Pradip Pradhan, on the other.
Secondly, in a situation where the Court grants interim stay or injunction as prayed for by the applicant, without issuing a notice of the application to the Opposite Parties, the Clause (a) under Proviso to Rule 3 of Order 39 enjoins upon the Court “to require the applicant to deliver to the Opposite Party or send to him by registered post” immediately a copy of the application for injunction together with connected documents, while Clause (b) further requires the applicant to file on the same day or on the day following an affidavit showing the delivery or dispatch of the said copies to the Opposite Parties. In the instant case, the applicant for stay i.e. KIIT was supposed to make such delivery while the requiring authority i.e. the Judge Biswanath Rath was to ensure the compliance thereto. But, in view of the hard truth that the OP-2 Sri Pradip Pradhan has as yet not received any dispatch whatsoever in this regard despite a long lapse of more than two and half months, it seems both KIIT and Judge, in collusion with the super-strategist the AG Sri Parija have worked in tandem, by way of a well-designed criminal conspiracy to sabotage the very dispatch of the notice so that the said dispatch is never delivered to OP -2 and the latter stays eternally disabled to file his counter-affidavit vis-à-vis the impugned Stay Order. Thus, a stay order on the operationalisation of Odisha Information Commission’s Decision, which was an interim/temporary one, could be rendered into an absolute and permanent one, thanks to such subterfuges, to the fabulous benefit of the Petitioner-KIIT.
Thirdly, going by Rule 3-A under Order 39 of CPC 1908, it is the responsibility of the concerned Court (in the instant case, Justice Biswanath Rath) ‘to make an endeavor to finally dispose of the application’ for stay within 30 days from the date of its issue, failing which said Court “shall record the reasons for such inability”. Viewed in juxtaposition to such a grandiloquent provision of CPC, the endeavor of the Court or for that purpose that of the Judge Sri Biswanath Rath, made if any, is still shrouded with an impenetrable mystery. Because, even after a long lapse of two and half months since the issue of the stay on Commission’s Order, Sri Pradip Pradhan a necessary Party to the case as the OP No. 2 qua the RTI applicant/ appellant has reportedly not received as yet a copy of the notice along with that of the Plaint and IA etc. from the Court. Given such a dismal failure, nay, a deliberate infraction on the part of the Orissa High Court or for that matter its Judge Sri Biswanath Rath to undertake a bare minimum of their endeavor, that is, delivery of the Notice to a necessary Party, the question arises whether and if the Court wanted and meant at all to dispose of the application for Stay within 30 days as warranted under Order 39 Rule-3A of CPC 1908.
Lastly, the question arises, if hypothetically the entire judicial and administrative machinery of a Court fails the above mentioned provisions of CPC 1908 for disposal/vacation of a stay order, what remedy does exist thereto? As a matter of fact, a Division Bench of Supreme Court comprising Justice K.T. Thomas and Justice R.P. Sethi delivered a Judgement on 19 September, 2000 in the matter of A. VENKATASUBBIAH NAIDU versus S. CHELLAPPAN AND ORS, where the above said hypothetical problematique was sought to be addressed at length. This Judgement said inter alia, “What would be the position if a court which passed the order granting interim ex parte injunction did not record reasons thereof or did not require the applicant to perform the duties enumerated in Clauses (a) & (b) of Rule 3 of Order 39. ….. But if a party, in whose favour an order was passed ex parte, fails to comply with the duties which he has to perform as required by the proviso quoted above, he must take the risk. Non-compliance with such requisites on his part cannot be allowed to go without any consequence and to enable him to have only the advantage of it. The consequence of the party (who secured the order) for not complying with the duties he is required to perform is that he cannot be allowed to take advantage of such order if the order is not obeyed by the other party. A disobedient beneficiary of an order cannot be heard to complain against any disobedience alleged against another party. …… Nonetheless, we have to consider the consequence, if any, on account of the Court failing to pass the final orders within thirty days as enjoined by Rule3-A….
“What would happen if a Court does not do either of the courses? We have to bear in mind that in such a case the Court would have by-passed the three protective humps which the legislature has provided for the safety of the person against whom the order was passed without affording him an opportunity to have a say in the matter. First is that the Court is obliged to give him notice before passing the order. It is only by way of a very exceptional contingency that the Court is empowered to by-pass the said protective measure. Second is the statutory obligation cast on the Court to pass final orders on the application within the period of thirty days. Here also it is only in very exceptional cases that the Court can by-pass such a rule in which cases the legislature mandates on the court to have adequate reasons for such bypassing and to record those reasons in writing. If that hump is also bypassed by the Court it is difficult to hold that the party affected by the order should necessarily be the sole sufferer. It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party who does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39 Rule 3A of the Code is flouted, the aggrieved party shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. …. In appropriate cases the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs”.
The above said diagnosis and dicta by the apex court, though delivered in the context of the abject failure of a subordinate court in complying with the mandates of CPC in the matter of ex parte orders, are absolutely relevant in the instant case of High Court where an Opposite Party (OP-2 Sri Pradip Pradhan) without having been heard at all, has been, with no rhyme or reason, made to suffer the denial of his statutory RTI from a deemed Public Authority (KIIT University- Petitioner) thanks to a mindless, arbitrary and mala fide interim stay order on the decision of OIC (OP -1), of late pronounced by a single bench Judge Sri Biswanath Rath at the instigation of an woolly Advocate General alias Sri Ashok Parija. A triumvirate of constitutional functionaries- a Judge, an AG and KIIT Chief turned MP- are thus out to throttle Sri Pradhan Pradhan a popular icon of Odisha’s RTI activism and as well Odisha Information Commission the final appellate authority heading the state’s RTI regime. The moot question arises, can the Collegiums at the level of Supreme Court and Odisha High Court do their bit to enquire into and remedy the damage already done to the mandates of CPC 1908 by the trio of above said constitutional functionaries in their mala fide bid to efface Information Commission and RTI activism from the state of Odisha?
Chitta Ranjan Behera, Advocate Orissa High Court (BCE No. O- 419/1995), Dt 01.10.2021, Mobile No. 9437577546
