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Phukan is fiercely independent, says legal fraternity

By Vinayak Ganapathy in Guwahati
January 05, 2003 03:49 IST
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Justice S N Phukan, who was appointed by the central government on Saturday to head the commission of inquiry into the Tehelka scandal, has the reputation of being a fiercely independent man who is unafraid to speak his mind.

Phukan, who confirmed to his acceptance of the appointment but refused to be interviewed at this time, is currently chairman of the Assam Human Rights Commission. He is likely to take up his new assignment next week.

Phukan succeeds Justice K Venkataswamy, who resigned in November 2002 after a controversy over his acceptance of another post from the central government. Critics said it would compromise the impartiality of his inquiry.

A former Supreme Court judge, Phukan had the rare distinction of serving as chief justice of two high courts -- Himachal Pradesh and Orissa -- in his distinguished forty-year-long legal career. His rulings in at least two cases -- the Anjana Misra rape case in Orissa and the ban on the use of loudspeakers in religious places -- are still remembered by the legal community.

Justice Phukan's stand in 1998 on the process of appointment of Supreme Court judges had also made headlines after he threatened to resign in protest against his supersession. Phukan, who hails from Assam, had warned that his supersession could lead to a feeling of alienation among the people of the Northeast.

Phukan, then chief justice of Orissa, brought it to President K R Narayanan's notice that three judges nominated to the Supreme Court were junior to him. The recommendations of the chief justice of India provoked some other high court chief justices who in the normal course would have been promoted to the Supreme Court. Chief Justice P S Mishra of the Calcutta high court even resigned in protest.

When Phukan was chief justice of the Himachal Pradesh high court, Bhawani Singh, one of the judges nominated to the Supreme Court, was a justice there. He later became chief justice of Himachal Pradesh.

Phukan had had an unblemished record in both Shimla and Cuttack. He complained in his letter to the President that Singh, as the most senior judge of the Himachal Pradesh high court, not only had close political connections but also tremendous influence with members of the executive.

Later, as a judge of the Supreme Court, Justice Phukan along with Justice M B Shah held that no community has the right to use microphones or loudspeakers to amplify religious preachings and prayers. They gave this ruling while dismissing an appeal by the Church of God (Full Gospel) in India challenging a Madras high court order directing it to tone down the volume at religious functions.

Rejecting the contention that this order violated the church's fundamental right under Article 25, the judges said the right to propagate one's religion was subject to 'public order, morality and health'. "No religion prescribes or preaches that prayers are required to be performed through voice amplifiers or by beating drums," they observed.

But Justice Phukan's most significant ruling came in the infamous Anjana Misra rape case involving Orissa's then advocate general. The case became a national cause celebre after a month-long drama over Misra's alleged torture by her husband and in-laws and the alleged attempt by Advocate General Indrajit Ray to rape her.

After hearing a number of public interest petitions on the issue, a division bench comprising Chief Justice Phukan and Justice Arijit Pasayat [who is now a Supreme Court judge] upheld Misra's request and asked the Central Bureau of Investigation to look into the case. The court directed the CBI to constitute a special cell to monitor the case as it involved senior police and law officers. It also asked the CBI to submit an interim report to the court.

The judges observed that the whole issue was getting murkier following the levelling of charges and counter charges and the only option before them was to hand the case over to the CBI. They made it clear that such a step was being taken to erase doubts of bias in the investigation and that it did not reflect on the efficiency or integrity of the state police.

The legal fraternity in Guwahati has welcomed Justice Phukan's appointment to head the Tehelka commission of inquiry, saying his upright nature would give the probe a new life and help take it to its logical conclusion.

Arup Borbora, president of the Guwahati Bar Association, said: "Justice Phukan is one of the most competent judges in contemporary times and is the best choice to head the Tehelka probe panel."

Senior advocate R P Sharma said: "Justice Phukan is known for speedy disposal of complicated cases. His down-to-earth personality and his empathy for oppressed people is well-known."

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Vinayak Ganapathy in Guwahati