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Home > News > The Great Defence Scandal > Report

Phukan is fiercely independent, says legal fraternity

Vinayak Ganapathy in Guwahati | January 05, 2003 03:49 IST

Justice S N Phukan, who wasappointed by the central government on Saturday to head the commission of inquiry into the Tehelka scandal, hasthe reputation of being a fiercely independent man who is unafraid to speak his mind.

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

Phukansucceeds Justice K Venkataswamy, who resigned in November2002 after a controversy over his acceptance of anotherpost from the central government.Critics said it would compromise the impartiality of his inquiry.

A former Supreme Court judge, Phukanhad the rare distinction of serving as chief justice of twohigh courts -- Himachal Pradesh and Orissa -- in his distinguished forty-year-longlegal career. His rulings in at least twocases -- 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'sstand in 1998 on the process of appointment of Supreme Court judgeshad 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. Therecommendations of the chief justice of Indiaprovoked some other high court chief justiceswho in the normal course would have been promoted to the Supreme Court. Chief Justice P S Mishraof the Calcutta high court even resigned in protest.

When Phukan waschief justice of the Himachal Pradesh high court,Bhawani Singh, one of the judges nominated to the Supreme Court, was a justice there.Helater becamechief justice of Himachal Pradesh.

Phukan had had an unblemished recordin both Shimla andCuttack. He complained in his letter to the President thatSingh, as the most seniorjudge 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 Phukanalong with Justice M B Shahheld that no community hasthe right to use microphones or loudspeakers to amplifyreligious preachings and prayers. Theygave this ruling while dismissing an appeal by the Church of God (Full Gospel) in India challenging a Madras high court orderdirecting it to tone down the volume atreligious functions.

Rejecting the contention thatthis order violated the church's fundamental right under Article 25, the judgessaid theright to propagate one'sreligion 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 beatingdrums," theyobserved.

But Justice Phukan's most significant ruling came inthe infamous Anjana Misra rape case involving Orissa'sthen advocate general. The case became anational cause celebre after a month-long drama over Misra'salleged tortureby her husband and in-laws and the alleged attempt by Advocate General Indrajit Rayto rape her.

After hearing a number of public interest petitions on the issue, a division bench comprising Chief JusticePhukan and Justice Arijit Pasayat [who is now a Supreme Court judge] upheld Misra'srequestand asked theCentral Bureau of Investigation to look intothe 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 observedthat the whole issue was getting murkier following the levelling of charges and counter charges and the only option before them was to handthe 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 haswelcomed Justice Phukan's appointment to head the Tehelka commission of inquiry, saying his upright nature would give the probe anew lifeand 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 incontemporary 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 foroppressed people is well-known."

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