Gavel Gazing

ast week, a magistrate of the Haridwar district court ordered the seizure of eminent artist M.F. Husain's Mumbai properties. Husain, accused in a private petition of offending religious sentiments in one of his paintings, had failed to heed a summons order against him. The legal community has been united in condemning the order to attach his property as a drastic and irregular step. But it was finally up to the Supreme Court to step in and stay the overzealous order.

This is only the latest frame in a fast-moving montage of cases where crackpot petitioners have persuaded lower court judges to issue heavy-handed orders against public figures. Outlook spoke to a cross-section of legal luminaries who strongly felt the time has come for concrete measures to put an end to these derailments of the law. But how can these busybodies be kept out of court? And how can magistrates be kept from entertaining them?

The law, as it stands, is that self-appointed moral custodians can have anybody hauled up simply on the strength of an accusation—if a magistrate agrees to admit their private petition. The magistrate has a responsibility to dismiss petitions that are frivolous, lack reasonable legal grounds, or are filed to harass the respondent. But the truth is that some magistrates are keen to flex judicial muscle. After Richard Gere surprised Shilpa Shetty with a dramatic onstage kiss, Jaipur magistrate Dinesh Gupta surprised Gere with a non-bailable warrant for his arrest. Of course, the accused can approach a superior court to have a malicious order quashed, but extricating themselves from legal proceedings is invariably long, painful, expensive and embarrassing. "The object of these exercises is not justice—they are intended to shame and humiliate," says senior Supreme Court advocate Rajeev Dhavan.

Frivolous petitioners will continue to exist, lawyers point out, as long as magistrates continue to indulge them for their own publicity or political motives. "The lower judiciary is politically infected," adds Dhavan, "It's a lethal cocktail of motivated abuse by petitioners and judges playing to the gallery...applying the law but forgetting justice." As in 2005, when magistrates across Tamil Nadu admitted 35 private petitions against actress Khushboo—for "defaming Tamils" in remarks to a magazine about premarital sex.

So, what's the solution? For Supreme Court advocate Prashant Bhushan, it's a simple one—the higher judiciary should fire the magistrate. "Why at all should a Haridwar court take up a complaint about Husain having made some paintings in Bombay? A court needs territorial jurisdiction," says Bhushan. "An order that shows gross negligence or incompetence, or a complete lack of understanding of the law should be grounds to retire the judge."

he majority opinion, though, disagrees on such extremes. Other members of the Bar point out that regularising punishments for magistrates could compromise their ability to adjudicate fairly. Even transferring a magistrate, as was done to the Jaipur judge in the Gere case, is a measure to be used sparingly—an enhanced power of punishment can also be misused, in their view. They believe it is better to endure the occasional whimsy and impropriety of magistrates, rely on the higher judiciary to set things straight. Eminent jurist Fali S. Nariman points out that since the Supreme Court and high courts have the power of judicial review, the best remedy is for them to exercise it swiftly, as the SC did with the Haridwar order. "Some magistrate is bound to go berserk or pass a stupid order," says Nariman, "Or somebody snatches a jurisdiction merely for publicity, in which event, if a superior court is vigilant enough, it issues an order and ultimately quashes it".

Retired Supreme Court judge Sujata Manohar too prefers milder measures to punishing judicial officers, like the enrolling of magistrates in judicial training institutes. "Training institutes can encourage a broad and liberaloutlook in judicial officers," she says. "It will give them wider exposure to our country's culture and values."

Lawyer and Union minister Kapil Sibal—who has earlier represented Husain—favours reforms of the criminal procedure laws to limit the power of judicial orders on certain charges. For instance, the charges relating to inciting communal hatred and offending religious sentiments (grounds often favoured by frivolous petitioners). "The law must require a verification of the facts," says Sibal. "Why shouldn't there be a preliminary inquiry before people are summoned to court?"

While opinions are clearly divided on how to deal with the lower judiciary when it goes berserk, legal luminaries speak as one on the need to penalise petitioners. Legislation already exists in some states to bar petitioners with a track record of frivolous suits, but it's rarely used. These laws allow a magistrate to forbid a "vexatious litigant" from initiating legal proceedings in the future without specific permission. Last year, the Law Commission of India drafted a central legislation with similar provisions, the Vexatious Litigation (Prevention) Bill. The bill is currently being considered by the law ministry.

In the meantime, says former chief justice V.N. Khare, vexatious litigants must be heavily fined. "As much as one or two lakh rupees, as well as the cost of the proceedings," he recommends. "Hardly anybody ever has to pay costs to the other side," agrees Nariman. "The magistrates are too squeamish. But if a judge imposes, say Rs 1 lakh, as costs on a frivolous petitioner, he'll need to worry a bit because someone will come to his house and attach his properties!"

In 2006, the then CJ Y.K. Sabharwal did fine a petitioner Rs 1 lakh for wasting the time of the court with aPIL that had no basis in fact, but his example is rarely followed.

However, the legal community is no less scathing about the press. It wants the media to shoulder some of the blame for giving publicity-hungry magistrates the attention they seek by admitting such petitions. "They are swayed by media attention, by having their name in the print and electronic media," says Khare. "It's only now, with this 24x7 of 32 channels that do not know what to put on air, that all this has come about," says Nariman. In such matters, of course, no news would clearly be good news.