Supreme Court: India
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Article 142 in The Constitution Of India 1949
142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc
( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself
‘A tool for judicial dictatorship’
(The writer is a Supreme Court lawyer)
As a committed democrat, I believe that an inefficient democracy is preferable to an efficient dictatorship and any form of absolutism, even by the judiciary, is unacceptable.
The anathema of democracy is dictatorship, whether in the hands of an individual, a group or an institution. The very soul of a democracy is that the people's will is supreme. Howsoever wise be the 30 adorning the apex court and howsoever noble their motives, they can never speak for 1.2 billion people who speak through their representatives in the legislature.
It is not a case of comparative wisdom or intellect since democracy itself owes its origins in Greece to the revolt against the rule of the intelligentsia. It is for this very reason that the founding fathers of our Constitution provided strictly for the separation of powers, which would maintain a balance and protect against any one institution overpowering or dominating the others.
How then can 30 wise but unelected people exercise powers akin to legislation? More so, when the selection of future members into this august group is decided by five of their wisest, with none else given a me aningful role in such appointments. Such power to self-propagate has also been conferred by their own judgments.
While the independence of the judiciary is to be strictly protected, with it comes the responsibility of acting within constitutional boundaries and resisting the temptation to venture into the terrain of other institutions in the absence of viola tion of constitutional and legal principles.
Over the recent past, however, increasing powers are traced to Article 142 to decide a host of issues that would fall within the domain of other institutions. The exercise of such powers with no one to turn to against such exercise except the very body that had exercised the powers in the first place is certainly not democratic and bor ders on authoritarianism or at the very least, rule of the intelligentsia.
Article 142 is an extraordinary power to be sparingly used where there is a legislative or executive void and comes into play when the conclusion is founded on statute or law but a remedy has to be created. Surely , its purpose is not replacing the wisdom of other institutions with that of the judiciary .
The recent judgment of the apex court overriding the objections of the states has also prohibited luxury hotels within 500 metres of a highway from serving liquor in restaurants, banquet halls or even to guests in their rooms.
To name a few, Aero City in Delhi, Leela in Mumbai, and Grand Chola in Chennai are all subject to this embargo.Members cannot have a drink in iconic clubs like the Gymkhana. Even more surprising is that this fatwa was passed in a litigation expressing concern over liquor shops operating on the fringe of highways proving a temptation to passing motorists and encouraging drunk driving.
The judgment was surprising as it is highly likely that a person going to Bukhara for dinner does so to break the monotony of his driving or that the hotel guest having a nightcap would be tempted to rush out and start driving.
That stopping such people from drinking would make the highway safer defies logic. If it was to enforce a prohibition on the consumption of liquor, it was beyond the powers of the court and in the domain of the legislature. The only source relied on for the exercise of such power by the court is Article 142 of the Constitution which empowers it to pass orders to do complete justice to parties. Today it has become as uncertain and elastic in its use as an anteater's tongue.
It is certainly not to decide that it would be more - wholesome for the populace if hotels legally built and legally serving numerous needs ought not to serve liquor since they may be used as a watering hole by thirsting motorists.
Art 142 used to end marriage after wife skips hearings
The Supreme Court dissolved a marriage after the wife refused to respond to its notice to appear in court to contest the case. The husband had been fighting a legal battle for the last three years after his wife withdrew her consent for divorce after filing a joint petition in the family court.
A bench of Justices R K Agrawal and Abhay Manohar Sapre invoked the SC’s extraordinary power granted under Article 142 to dissolve the marriage without hearing the wife as she refused to respond to its notice issued on the husband’s plea. The court said she was not interested in keeping the marital relationship alive and allowed the husband’s divorce plea. Article 142 empowers the SC to pass order as is necessary for doing complete justice in any cause or matter pending before it. The couple got married in 2013 but the relationship soured soon after and they agreed to separate. They filed a joint petition in the family court seeking dissolution of marriage through mutual consent. The wife thereafter did not appear before the court which finally dismissed the petition. The man then approached the High Court of Judicature at Hyderabad which refused to grant him divorce after his wife’s lawyer contended that she had not given consent.
Agreeing to examine his plea, the apex court had issued a notice to the wife to file her response but neither she not her lawyer appeared to argue the case. She did not appear before the court on 18 dates when the matter was taken up for hearing.
Taking into account her conduct, the apex court dissolved the marriage and said there was no dispute that the couple had entered into an agreement to end the marital relationship.
Contempt of court
Calcutta HC on contempt: SC
The Times of India, Sep 18, 2011
The Jalpaiguri district court was shut for a month by people demanding a Calcutta high court circuit bench there and the high court convicted 18 people, including the DGP of the West Bengal police, editor of a local daily, an ex-MP, an MLA and the district magistrate, for contempt. When they appealed against their conviction and six-month jail term, the tables were turned in the Supreme Court, which not only quashed the contempt proceedings but also faulted the high court for not taking timely action during the agitation to help keep the district court open.
The protesting public started the agitation on December 15, 2006 outside the main gate of the district court and requested the judicial officers not to go to court. It continued for a month till January 15, 2007.
A bench of Justices P Sathasivam and B S Chauhan said the agitation was peaceful and the judicial officers were not forcibly prevented from attending the court. However, it reiterated that “the administration of justice should never be stalled at the instance of anyone including the members of the bar even for any cause.”
The SC found that there was no request from the district judge or from the registrar general of the HC for removal of the rostrum put up in front of the gate and clearing of the protesters. It disagreed with the HC’s view that the DGP disobeyed the Chief Justice’s order for restoration of the district court’s functioning.
Siddaramaiah, Sahara and other cases
Siddaramaiah's Snub To SC Not 1st Case Of Defiance By A CM
Defiance of the Supreme Court's orders have al ways invited stinging punishment. Sahara group chief Subrata Roy will testify to that. He spent more than two years in jail and yet is not safe from the wrath of law. Last week, he was in real danger of being dragged back to prison just because his counsel made some intemperate arguments to test the SC's patience.
Again in Sept 2016, the Justice Lodha committee complained to the SC that the Board of Control for Cricket in India (BCCI) was impeding and defying implementation of reforms ordered by the apex court. Asking the BCCI to fall in line, the SC issued a “we will set you right“ warning.
But last week also saw Karnataka repeatedly flouting the SC's orders for release of Cauvery water to Tamil Nadu. Three times in the past one month, the state disobeyed the SC's orders. The political class came together and the assembly passed a resolution restraining the government from releasing water.
The SC had no option but to reiterate its orders notwithstanding the assembly resolution. CM Siddaramaiah told the SC in clear terms that given the “will of the people of Karnataka“, he would disobey the court's orders.
In a democracy , rule of law is maintained only when the violator faces reprisal of law swiftly and unwaveringly . For a commoner, the wrath of law has always been swift but when it comes to a mighty state or a chief minister, the SC has always been a little lenient.
It is not the first time that Karnataka has disobeyed SC orders. In 2002, the SC had issued contempt notice to then chief minister S M Krishna for disobeying its October 4, 2002 order for release of 9,000 cusecs of water into Mettur reservoir. The contempt proceedings gathered dust. After six years, the SC disosed of the contempt proce edings taking into account Krishna's unconditional apology for the disobedience filed through senior advocate Fali S Nariman, who continues to be the counsel for Karnataka in the Cauvery dispute.
Is Siddaramaiah drawing inspiration from the past? Difficult to say but the SC faces a real dilemma. If it hauls up the CM for contempt, it would help his popularity soar. And there is no guarantee of his successor implementing the SC's orders. As regards Siddaramaiah, he would not mind facing the wrath of law to emerge a martyr a few months ahead of assembly elections.
If the court does not take action, then it could encourage other states to defy its orders hiding behind the “will of the people“. And at present, it takes virtually nothing to whip up public hysteria.
In 1992, then UP chief minister Kalyan Singh had given an undertaking to the SC to maintain status quo at the disputed Ram Janmabhumi-Babri masjid site. It was flagrantly violated and the structure was razed to the ground. The SC convicted him for contempt of court.
In Mohd Aslam vs Union of India [1994 (6) SCC 442], the SC said, “It is unhappy that a leader of a political party and chief minister has to be convicted of an offence of contempt of court. But it has to be done to uphold the majesty of law. We convict him of the offence of contempt of court.Since the contempt raises larger issues which affect the very foundation of the secular fabric of our nation, we also sentence him to a token imprisonment of one day. We also sentence him to pay a fine of Rs 2,000.“ Is that the wrath of law one day's imprisonment or a fine of Rs 2,000?
Importantly, the SC had aid, “Respect for law and its nstitutions is the only assuance that can hold a plura st nation together. Any atempt to achieve solutions to ontroversies, however ideoogically and emotionally urcharged, not on the basis f law and through judicial nstitutions, but on the trength of numbers will subert the fundamental values f our chosen political orga isation. It will demolish ublic faith in the accepted onstitutional institutions nd weaken people's resolve o solve issues by peaceful eans. It will destroy respect or rule of law and the authoity of courts, and seek to plae individual authority and trength of numbers above he wisdom of law.“
Contrast this to a very reent example in the US. No ess than Alabama Supreme ourt chief justice Roy S More was suspended because e had ordered junior judges o defy an order of the US Su reme Court which validated ame-sex marriage in June ast year. That is what is caled the wrath of law which perates on the basis of the axim “you be ever so high, he law is above you“.
Unfortunately in India, the wrath of law has always remai ed inversely proportional to he position and popularity of n individual. The higher he stands, lesser the chance of him acing the wrong end of the judicial stick. It will be interes ng to watch how the `wrath of w' story unfolds in the SC .
Successful sportspersons have the wherewithal to engage professionals, whose expertise untangles their minds and anchors them ashore. Do SC judges have access to similar remedy when public adulation clouds their otherwise sharp mental faculties? Is there professional help available to them when they experience disenchantment after being singled out for vituperative criticism by a motivated group of lawyers?
Take the case of Justice R F Nariman, a man of sharp brain, immense knowledge and phenomenal grasping power. Clarity and erudition are hallmarks of his judgments, be they on corporate matters, the Insolvency and Bankruptcy Code or even right to privacy, and now the contentious issue of allowing women of all ages into the Sabarimala Ayyappa temple.
On November 14, he read out his dissent judgment, also on behalf of Justice D Y Chandrachud, reiterating an earlier five-judge bench decision. He criticised the majority judgment authored by then CJI Ranjan Gogoi, which asked a seven-judge bench to chart out the path for the SC when it finds itself in the thicket of faith vs fundamental right clash in cases.
Dissenting judgments are common to the SC. A judge rests his point after expressing his opinion. None till date, even if he had delivered a unanimous verdict, has called upon the government the next day to ensure implementation of the judgment. We did not see that in the historic Ayodhya verdict.
But Nariman surprised many on November 15 by asking solicitor general Tushar Mehta to tell the government to ensure implementation of the Sabarimala judgment. When Mehta beseeched him to remove the impression that the judgment would not be implemented, Justice Nariman retorted, “That impression is embedded in my mind and it is irremovable.”
Will this confession make him a judge who is biased or has pre-conceived notions, a quality that is anathema to the concept of adjudication? One could say so if unaware of Justice Nariman’s fine credentials, both as a lawyer and a judge. Is it an indication of work burden weighing down judges and numbing their fine sense of balance? New CJI S A Bobde will do well to look into this aspect.
Mental blackouts happen in many ways. The January 2018 press conference by rebel judges led by the then most senior judge J Chelameswar is another example of getting carried away by adulation of a section of intelligentsia to further an individual’s ambition. If the intention was to discomfit the then CJI, the presser achieved that.
But it infected the institution of the CJI with a ‘belittling’ virus. For decades, incoming CJIs will battle this hydra-headed virus, which has already manifested itself in a sexual harassment charge. Only time will tell what new avatars it will take to belittle CJIs.
From 2010 till 2014, the SC monitored CBI investigations into two scams — alleged irregular allotment of 2G spectrum and allocation of coal blocks. Both were brought before the SC by NGOs and lawyers, who are familiar PIL petitioners. A lot of sealed cover envelopes were given by investigating agencies to the SC judges during the hearings. No one, not even the activist lawyers who were part of the proceedings, uttered a word against the ‘sealed cover’ practice.
Why would they, for they were crowned as the ‘alwaysright’ anti-corruption army and that gave them the right to sneer and malign anyone who questioned them.
A bench headed by Justice R M Lodha monitored the coal scam probe. Proceedings of every hearing were headlined in newspapers, given the judge’s penchant for making catchy comments on the CBI and the government. Once, he got livid with the then CBI director, who got a probe status report vetted by the UPA government prior to submitting it to court. In anger, he christened the CBI “caged parrot”, a tag that has stuck to the agency.
Just imagine its effect on many honest and competent CBI officers and their family members? Can we call the SC a ‘caged parrot’ for its decisions in cases relating to Hinduja brothers, Lalu Prasad, Mulayam Singh Yadav, Mayawati and in ADM Jabalpur? What about the six judges who dissented against the seven who framed the landmark basic structure doctrine in Keshavananda Bharati case in 1973?
It is ever so easy, be it judges or lawyers, to pontificate while dreaming of an ideal situation. It is so very difficult to apply the pontificated rules to oneself. We saw this trend repeating after the SC’s Ayodhya judgment settled a 70-year-old case, which was stoking communal flares.
Not many gave credit to the SC, being unaware of the humongous exercise bravely undertaken by the judges, enduring physical and mental st-rain. None of the hawks saw the verdict as a plausible solution. Exercise is on to find faults and keep wounds festering. Such is the thankless task of judges. If they don’t suffer occasional blackouts, who will?
SC: filthy language not criminal intimidation
Abusing a person with filthy language alone does not constitute the offence of criminal intimidation, the Supreme Court has held.
“The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section,” a Bench of Justices Ashok Bhushan and K.M. Joseph said in a judgment on April 26.
Justice Bhushan observed that the “intentional insult must be of such a degree that it should provoke a person to break the public peace or commit any other offence.”
“The mere allegation that the appellant came and abused the complainant does not satisfy the ingredients [of criminal intimidation],” the court said.
The Bench was hearing an appeal filed by an insurance claim surveyor in Uttar Pradesh, who was accused of criminal intimidation by a factory owner in Mathura district.
2017: AG calls for a review
Observation Comes Day After SC Rejected Centre's Plea On AFSPA
A day after the Supreme Court dismissed the Centre's plea to exempt armed forces' personnel from prosecution for encounter deaths in areas under the Armed Forces Special Powers Act (AFSPA), attorney general Mukul Rohatgi on Friday made a strong pitch for review of the curative jurisdiction and called it “unfair and flawed“.
The SC had devised the curative jurisdiction in 2002 in its order in the Rupa Ashok Hurra case whereby a litigant could, as the last recourse, seek reconsideration of a judgment even after a review petition had been dismissed, on grounds of alleged violation of principle of natural justice and bias. A curative petition is considered in chamber by a bench that includes the three senior-most judges of the SC and the judges who had delivered the judgment in question. Rohatgi gave three grounds terming the process for cura for terming the process for curative petitions as “unfair and flawed“. He said, “If the judges who had delivered the judgment and dismissed the review petition were to be part of the bench to hear the curative petition, then it is obvious that the result would go the same way as the fate of the review petition. If the intention is to have a relook at the judgment, then the curative petition must be placed before a bench which does not include the judges who had delivered the judgment.“
Speaking to TOI, the AG also faulted the procedure adopted in deciding curative petitions. “In camera proceedings are contrary to the notion of dispensation of justice under public gaze. The court proceedings in India are open to public, except in exceptional circumstances,“ Rohatgi said.
The third ground, he said, was the absence of petitioner's counsel to argue before the bench dealing with the curative petition. “The procedure established through the Hurra judgment is not in accordance with the principles of natural justice and deserves a relook urgently,“ he said. On Wednesday, the SC up held its direction for mandatory registration of FIR against armed forces personnel, even in disturbed areas under AFSPA, for every encounter death despite the Centre pleading that this order could jeopardise efforts to maintain peace and security .
In a chamber hearing without the presence of law officers for the Centre, a bench of Chief Justice J S Khehar and Justices Dipak Misra, J Chelameswar, Madan B Lokur an U U Lalit had dismissed the Union government's curative petition against the judgment delivered last year. “We find no merit in the curative petition,“ it said before rejecting the plea.
By the July 8, 2016 order, the SC had negated the protection against prosecution available to armed forces under AFSPA. The Centre had said, “If the position maintained by the impugned order continues, it may one day be well-nigh impossible to maintain peace and security .“
High Courts’ judgements and the SC
The fulsome praise showered by the Supreme Court on the Delhi high court for deciding the sexual harassment case against filmmaker Mahmood Farooqui may appear to be against the run of play because of the perception that HC verdicts are routinely overturned by the apex court.
However, a quick scan of important cases heard by the apex court by way of appeals against high court verdicts reveals that, contrary to the widely held impression, in the majority of cases the SC has not only agreed with the HCs but even rebuked state governments for contesting well-reasoned orders. There have, of course, been instances of the apex court faulting HCs for falling into error.
“The Supreme Court needs to be complimented for complimenting the high court,” said a senior lawyer.
In March last year, the Calcutta HC ordered the CBI to take hold of all material, including Narada sting operation videos allegedly showing Trinamool members taking bribe, and register a preliminary enquiry (PE) in 72 hours. The West Bengal government cried foul and accused the CBI of political vendetta and appealed in the SC. The apex court strongly criticised the Mamata Banerjee government, made its counsel apologise, and held that the appeal was “most unfortunate” deserving “outright rejection”.
The SC had said: “We have perused the order under challenge and it emerges that the HC took into consideration the material which required holding of PE at the hands of the CBI. We find no infirmity with the determination of the HC as the rights of petitioners are fully protected.”
In February 2015, the Delhi high court restrained Prasar Bharati from sharing the free live telecast feed of cricket matches available to Doordarshan with cable operators. In August last year, the SC said the HC had correctly decided the case and affirmed the order.
The Delhi high court will also draw satisfaction in the SC fully endorsing its verdict convicting four persons and awarding them death penalty for the gang rape and murder of ‘Nirbhaya’ in December 2012. The Supreme Court, after minute scrutiny of every piece of evidence, found no infirmity in the HC judgment. It is one of those rare cases where the trial court, the HC and the SC were on the same page.
In contrast, the 2001Parliament attack case shows how scrutiny of evidence at the higher levels of judiciary makes certain evidence, relied on by the trial court, appear doubtful. In this case, the trial court had awarded death sentences on Mohammad Afzal Guru, Shaukat Hussain Guru and SAR Gilani, and a five-year jail term to Afsan Guru. The HC upheld the death sentence for Afzal and Shaukat but acquitted Gilani and Afsan. The SC, despite terming the HC order “well reasoned”, awarded death only to Afzal, a 10-year jail term to Shaukat and upheld the acquittal of Gilani and Afsan.
In November last year, the Supreme Court had upheld an Uttarakhand HC verdict approving the assembly speaker’s decision to disqualify nine MLAs for defecting from Congress and said it was a “well-reasoned order”. In December last year, the SC was again on the same page with the Delhi HC in refusing to accord ‘Vande Mataram’ status equivalent to that of the national anthem.
Last month, it also agreed with theDelhi HC and dismissed a petition filed by AAP member Raghav Chadha, who had challenged the trial judge’s decision to summon him to face proceedings in a defamation case filed against him by finance minister Arun Jaitley for merely retweeting an allegedly defamatory statement by Delhi chief minister Arvind Kejriwal.
However, there are occasions when the SC expressed annoyance with the HCs, as it did last year in the fodder scam case. The Jharkhand HC had said the scam was a product of one conspiracy and hence former Bihar CM and RJD chief Lalu Prasad could not be made to face conspiracy charge in fodder scam cases relating to different treasuries. The SC overturned the order and criticised the HC for “ignoring the settled principles of law” that instances of illegal withdrawal of crores of rupees from every treasury require a separate trial. That is how Lalu Prasad came to be convicted in the second fodder scam case and faces more trials.
Has the Supreme Court, long praised for independence and fearlessness, suffered some erosion of its tough impartial image, and allowed itself to be seen tilting towards BJP? This question will inevitably arise after four successive Supreme Court judgments in the last week that all went BJP’s way, albeit with caveats.
Four in a row can be a coincidence, and does not prove a political tilt. Besides, the caveats in the verdicts can be seen as evidence of judicial independence. Yet many analysts fear that the forces turning India in a saffron direction are affecting the courts too. India needs a Supreme Court that is not only impartial but seen to be so.
In the Babri Masjid case, the court held that Hindu idols had been smuggled into the mosque, which was later destroyed illegally in 1992. Yet the disputed site went to a trust to build a Ram temple. Muslims got an alternative mosque site that was bigger but lacked any historical or cultural connection. Many secular Hindus and Muslims were sorely disappointed.
In the second verdict, the Supreme Court dismissed the petition of the Congress and others to review an earlier court decision saying no irregularities or corruption had been established in the Rafale aircraft deal. The Congress will try now for a parliamentary inquiry, but that will go nowhere after the Court verdict.
In a third case, the court agreed to review its Sabarimala Temple verdict decreeing that young women (who might be menstruating) had a fundamental right to enter the temple regardless of Hindu claims that this was prohibited by tradition. Hindus have cheered this as an opportunity to renew the ban on entry of young Hindu girls into Sabarimala. However, the court held that the review will cover not only the Sabarimala case but also clashes between religious faith and women’s rights in other communities like Muslims, Parsis and Dawoodi Bohras. Some members of these communities, though by no means all, will say they are being dragged unnecessarily into a Hindu dispute.
The fourth SC verdict in the Karnataka defection case has (as in the Babri Masjid case) slapped the BJP on the wrist yet left it smiling. In Karnataka, the Congress and JDS had a coalition with a slim majority that looked like lasting since the anti-defection law prohibited defections. But the BJP cleverly “persuaded” — Congressmen say “paid” — 17 coalition legislators to resign, leaving the BJP in a majority that brought down the government in a no-trust motion. Seeing through this strategy, the speaker disqualified the 17 MLAs under the anti-defection law for the full life of the elected assembly, so that they could not reap any ministerial reward from disguised defection. The court has now upheld the disqualification but struck down the period of disqualification. This means the 17 MLAs can contest the by-elections caused by their resignations, and if elected, become ministers. This will reward those that plotted to evade the spirit and letter of the anti-defection law.
Those sceptical of judicial impartiality should remember that the Supreme Court intervened in April 2017 (under Modi’s rule) to revive CBI charges against top BJP leaders — including Lal Krishna Advani, Murli Manohar Joshi and Uma Bharti — of conspiracy to demolish the Babri Masjid. This was certainly not toeing the BJP line, and gladdened those that prize judicial impartiality.
The case was filed in 1993 and dragged on for years in the lower court, which dropped charges. The high court refused to change that verdict. A petition was filed in the Supreme Court by the CBI for fresh prosecution. The court agreed, clubbed together all charges and decreed a new expeditious trial in Lucknow with no transfer or retirement of the presiding judge till completion of the case by April 2020.
Advani and others have long claimed the demolition was a spontaneous act of the mob, not directed by them. But the Liberhan Judicial Commission denounced the BJP leaders in no uncertain terms and accused them of helping plan the destruction.
By now eight of the 21 accused, including Vajpayee and Ashok Singhal, have died of old age. Advani is 92. One must hope that the case clears the lower courts and permits a clinching Supreme Court verdict before all the BJP leaders die. If not, this will be one more judicial move that looks impartial but leaves the BJP smiling.
Yet no judge has so far been impeached in India. In 2010, senior lawyer and former law minister Shanti Bhushan asserted, in an affidavit in the Supreme Court, that out of 16 chief justices of India, as many as eight were 'definitely corrupt'. There was a move to impeach CJI M.M. Punchhi for acquitting a person on the basis of a compromise in a matter of criminal breach of trust-which is a non-compoundable offence-for allegedly extraneous considerations, but the requisite number of MP signatures could not be procured for the impeachment motion. Last year, CJI J.S. Khehar too was mired in a controversy over the suicide note of former Arunachal Pradesh chief minister Kalikho Pul. Justice Markandey Katju too had made serious allegations about the extension given to a Madras High Court judge by three CJIs under political pressure from the DMK and UPA.
The ill-conceived, half-hearted and unrealistic move to impeach CJI Dipak Misra on charges that are hard to prove should cue attempts to put in place a system of judicial accountability short of impeachment.
A judge can be impeached by Parliament on grounds of 'proved misbehaviour or incapacity'. Judges hold office, not only in India but also in, say, Britain and the US, during what may be termed as 'good behaviour' periods. The CJI too can be impeached like any other judge as he is simply the first among equals. The Supreme Court itself has held that 'misconduct' is a relative term that could connote "wrong conduct or improper conduct". The Judges (Inquiry) Bill, 2006, did include wilful, persistent failure to perform duties within the definition of 'misconduct', but it is difficult to argue that writing of fewer judgments or wrong judgments amounts to 'misconduct' or 'incapacity'.
Public perception matters in the discharge of judicial functions. If there is even a baseless perception that the CJI and/ or other judges are under the influence of the government and matters in which the government is interested are given to pliant benches, it may be a worrisome sign for the independence of the judiciary. However, none of this, including the controversial constitution of a seven- and then five-judge bench with great alacrity to overturn a decision of a three-judge bench in the Lucknow medical college case, may really meet the stringent criteria of 'misconduct'.
Corruption is a cognisable offence, yet in the Justice K. Veeraswami case (1991), the apex court laid down that no FIR can be filed against a judge without the permission of the CJI. Although the case was about corruption, the Supreme Court extended protection to all cases. If the allegation of corruption is against a Supreme Court judge, the President could order an investigation in consultation with the CJI. If the allegation was against the CJI, the President had to consult other judges and act on their advice. In CJI Khehar's case, since the allegations were not only against him but also against the then President (Pranab Mukherjee), Khehar rightly ordered that the matter be referred to an appropriate bench.
The impeachment process is so time-consuming and tortuous that it practically gives judges immunity. We, therefore, must evolve other mechanisms to evaluate the performance of judges. Judicial accountability promotes at least three discrete values: the rule of law, public confidence in the judiciary, and institutional responsibility. Many US states have a 'merit plan' to evaluate judicial performance. States such as Arizona, California and Utah have Judicial Performance Review Commissions/ Councils. These consist of not only judges and lawyers but also laypersons. New York and Alaska have systems of evaluation by trained court observers who make unscheduled court visits. Judges are evaluated on their knowledge of law, integrity, sentencing, impartiality etc. Judges must be judged too, and we need mechanisms that enable this.
Disaster relief order: 2016
The Times of India, May 26 2016
In its over-zealousness to protect the lives of citizens reeling under severe drought in several states, the Supreme Court has erred in directing the Centre to set up a National Disaster Mitigation Fund (NDMF) under a non-operational statutory provision which had riled the government. Led by finance minister Arun Jaitley , the government had accused the judiciary of wanton interference in the executive's exclusive domain of earmarking funds for various purposes under the budgetary exercise.
The SC on May 11 had quoted Section 47 of the Disaster Management Act, which provides for setting up of NDMF for projects exclusively for the purpose of mitigation -measures aimed at reducing the risk of disaster.
Slamming the government, the SC had said, “Although the DM Act has been in force for more than 10 years, the NDMF has not yet been constituted. Therefore, there is no provision for mitigation of a disaster.“ It said since the Centre had not set up NDMF, it was unlikely that states or district administrations would have set up disaster mitigation funds.
“As mandated by Section 47 of the DM Act, 2005, a Na tional Disaster Mitigation Fund is required to be established. Unfortunately, no such fund has been constituted till date. Accordingly, we direct the Union of India to establish a National Disaster Mitigation Fund within three months,“ the bench said and set August 10 as the deadline to set up NDMF.
While the anxiety to come to the rescue of those affected by droughts was reflected in the judgment of Justices Madan B Lokur and N V Ramana, the bench missed the fact that Section 47 of the DM Act was not yet notified. None of the counsel -neither additional solicitor general P S Narasimha nor the advocates appearing for states -drew the court's attention to the fact that Section 47 mandating setting up of NDMF was not notified by the government and, hence, remained non-operative.
As a result of this mistake, the SC ended up directing the Centre to implement a provision of law which for all practical purposes is non-existent.
A day after the SC directed the Centre to set up NDMF, Jaitley said the judiciary was progressively appropriating the executive's powers. “Step by step, brick by brick, the edifice of India's legislature is being destroyed,“ he said and his remark was appreciated by MPs cutting across party lines.
Setting up a Disaster Response Force
The Times of India, May 28 2016
SC also erred in asking govt to set up Disaster Response Force: ASG
Additional solicitor general P S Narasimha on Friday said the Supreme Court erred not only in directing setting up of National Disaster Mitigation Fund (NDMF) but also in asking the Centre to set up a National Disaster Response Force (NDRF). Responding to a TOI report published on Thursday, Narasimha said during the arguments on a PIL filed by `Swaraj Abhiyan', he had pointed out to the court that Section 47 of Disaster Management Act had left it to the Union government's discretion whether or not to set up NDMF by using the words “the government may“.
“Apart from this, I had also pointed out to the court that National Disaster Re sponse Fund under Section 46 was already constituted and in fact been operated since 2010. During the course of hearing, I had elaborately pointed out the distinction between mandatory provisions and those which are enabling,“ he said.
He added that he had also brought to the court's notice the rejection of a proposal to set up NDMF by the 13th Finance Commission, which was of the view that funds were already available to different ministries under the DM Act for mitigation measures connected to a disaster.
“Surprisingly , in its judgment on May 11, the court directed constitution of NDMF. Equally erroneously, the judgment directed formation of NDRF, although such a force has already been constituted under Section 44 with the requisite manpower. This fact was brought to the notice of the bench by a senior officer of the disaster management authority who was present in the court,“ Narasimha said.
The ASG objected to the TOI report which said that “the bench missed the fact that Section 47 of the DM Act was not yet notified as none of the counsel -neither additional solicitor general P S Narasimha nor advocates appearing for the states -drew the court's attention to this fact“. TOI had reported that the SC had erred by directing constitution of NDMF as Section 47 was nonoperational.
He said attribution of this omission to him was erroneous as he had presented all facts before the court.“For these reasons, I promptly advised filing of a review petition as these findings constitute errors apparent on the face of the record,“ he said.
However, none of the written submissions presented by the Centre to the court during the hearing mentioned the fact that non-notification of Section 47 barred the court from directing the government to constitute NDMF.
Judgements, minority/ dissenting
In the Constitution-mandated federal democratic setup of ours, the Supreme Court enjoys a unique position. It is a court of record with original, appellate (both civil and criminal), writ, contempt and advisory jurisdictions, coupled with discretionary power to expand its jurisdiction for doing complete justice. The Constitution also says that a law declared by the SC is binding on all.
Even Parliament falls short of the jurisdictional sway conferred on the SC. Except for inter-state river water disputes (Article 262), which is to be decided by a tribunal, there is virtually no limitation on the power of the SC. On the other hand, Parliament cannot legislate on state subjects enumerated in List II.
In a given case, the SC can discuss, decide and comment adversely on the action and conduct of a member of Parliament, minister or government while determining what fell afoul of the law or Constitution. But Parliament is specifically barred from discussing the conduct of an individual judge for giving a particular judgment/order except when she faces a motion for removal from office because of proven misconduct.
Though the Constitutionframers provided for this perceived asymmetric distribution of power on the two most important organs of governance ostensibly for strengthening democracy, on many occasions, both organs have been at loggerheads. Parliamentarians and politicians have selectively hailed and criticised SC judgments, both majority and minority opinions of multijudge constitution benches.
The SC had set up a constitution bench comprising the largest ever 13 judges to decide Parliament’s power to amend the Constitution in Keshavananda Bharati case [1973 (4) SCC 225]. As many as 11 opinions were rendered. Seven judges — Chief Justice S M Sikri and Justices J M Shelat, K S Hegde, A N Grover, B Jagmohan Reddy, H R Khanna and A K Mukherjea — constituted a wafer thin majority and saved the Constitution from getting wounded beyond healing by the whims of the party enjoying majority in Parliament. The famous seven ruled on the inviolability of the basic structure and put it beyond Parliament’s amending powers, which had greatly riled the Indira Gandhi government.
The six which favoured bowing to the government’s wishes and conferred unbridled amending power on Parliament were Justices A N Ray, D G Palekar, K K Mathew, M H Beg, S N Dwivedi and Y V Chandrachud. The minority judgment, despite its strength, has long been forgotten.
Three years late, the infamous ADM Jabalpur judgment [1976 SCR 172] was delivered during the dark days of Emergency. A five-judge constitution bench, by 4-1 majority, disrespected the constitutional ethos and ruled that during Emergency, a citizen had no remedy under law if his fundamental rights were violated, including the most basic right to life. Those who did not flinch while penning this were Chief Justice A N Ray and Justices M H Beg, Y V Chandrachud and P N Bhagwati.
The lone dissent judgment, worth its weight in gold, came from Justice H R Khanna, who in 1973 had tilted the balance for protection of basic structure of Constitution in Keshavananda Bharati case. The dissenting judgment continues to be the guiding light for judges even after nearly half a century and keeps reminding them about inculcating the ethos of constitution. In Justice Khanna’s judgment, one would hardly find a word that berates the government or its machinery despite reports about gruesome and tragic incidents of Emergency. It was a pure enunciation of law in a dignified and fearless manner.
During a recent debate in Rajya Sabha on a bill proposing to allow voluntary use of Aadhaar as identification proof for opening bank accounts and SIM cards for mobile phones, some opposition MPs, who had been petitioners before the SC, cited the minority judgment penned by Justice D Y Chandrachud to allege that the government was attempting to overreach the SC judgment, which had frowned at Aadhaar being the basis for opening bank accounts and obtaining mobile connections.
While reiterating Parliament’s power to overcome SC judgments by removing its basis, law minister Ravi Shankar Prasad used his legal knowledge and political acumen to briefly divert the heat of the debate towards Justice Chandrachud’s lone dissent judgment, which struck down Aadhaar as unconstitutional. Four other judges on the fivejudge bench had upheld Aadhaar’s validity.
Prasad took singular objection to a paragraph from Justice Chandrachud’s judgment, and said, “I say, as a student of the Constitution, as a member of Parliament and as the law minister of India, Parliament has got the right to undo a judgment by removing the basis of the judgment. And this is a valid exercise of power. But I can say with full sense of responsibility that harsh words like ‘constitutional fraud’ must be avoided even by a lone judge, who is the dissenting judge. I have to say it openly that these kinds of sweeping comments, at best, be avoided.”
Excerpts from Justice Chandrachud’s Aadhaar judgment read, “Introducing the Aadhaar Act as a money bill has bypassed the constitutional authority of Rajya Sabha. Passage of the Aadhaar Act as a money bill is an abuse of the constitutional process… Superseding the authority of the RS is in conflict with the constitutional scheme and the legitimacy of democratic institutions. It constitutes a fraud on the Constitution. The ruling party in power may not command a majority in RS but the legislative role of that legislative body cannot be obviated by legislating a bill which is not a money bill as a money bill.”
The conflict between Parliament and SC will continue in future too given the distinctive roles constitutionally assigned to the two vital organs — one, with law-making power and the other having the power to test its constitutional validity and also strike it down when it diagnoses it as unconstitutional.
If the judge had used “wrong practice” instead of “abuse of Constitution” and “fraud on Constitution”, the law minister might not have objected to it. His protest stemmed from the fact that both organs and their players intend to work within the ambit of the Constitution and no one, even unwittingly, attempts to commit a fraud on the Constitution. But there are aberrations galore on both sides!
Advocates who gained straight entry to the SC
The Times of India, May 5, 2016
2016: Senior advocate L Nageshwar Rao joined a super-exclusive club of advocates to gain straight entry to the SC: Kuldip Singh, Santosh Hegde, U ULalit and R F Nariman. Rao was additional solicitor gene ral under both UPA and NDA before resigning in 2015.
Both father and son as SC judges
The Times of India, May 5, 2016
2016: The collegium headed by the Chief Justice of India recommended appointment to the Supreme Court of Allahabad HC chief justice DhananjayChandrachud. Justice Chandrachud's father Yeshwant was CJI from February 1978 to July 1985. Appointed a judge in Bombay HC at just 40, Chandrachud Junior has nine years of service left and a strong chance of creating history by also becoming CJI. Only once before have both father and son made it to the SC N H Bhagwati and P N Bhagwati, who went on to become CJI.
Judges' differences with the Chief Justice
2018, Jan: Four SC judges’ press conference
NEW DELHI: In an unprecedented move, four senior Supreme Court judges today called a press conference to express their displeasure with the Chief Justice of India (CJI) Dipak Mishra and with the way he was assigning cases.
- The four judges' letter to the CJI [in Nov 2017] airing their grievance about selective assigning of important cases
- "The CJI is only the first among equals nothing more and nothing less", they said
- The judges acknowledged that what they were doing - in calling a press conference - was highly unusual
The four judges+ ' wrote a letter to the CJI two months ago, airing their grievances about selective assigning of important cases to judges who are junior to them. They also said they have issues with the assignment of the case to do with the mysterious death of Justice BH Loya, who was hearing the Sohrabuddin fake encounter case.
"The convention of recognising that CJI is the master of roster and assigns cases to different benches is for disciplined and efficient transaction of court business and not a recognition of superior authority," they said in the letter.
"The CJI is only the first among equals nothing more and nothing less", they added.
The judges were Justice Chelameswar, Justice Gogoi, Justice Lokur and Justice Kurian Joseph. They said they are speaking out because "democracy will not survive if the judiciary is not impartial". [These four honourable judges ranked at nos.1, 2, 3 and 4 among the 24 Supreme Court: India: Sitting judges , not counting the Hon. Chief Justice of India, who obviously was senior to them all.]
The judges said they were annoyed that the medical college admissions scam was sent to court no 7 after a Justice Chelameswar headed bench sent it to a five-judge bench of himself, the CJI and Justices Gogoi, Lokur and Joseph.
They also said they wanted to highlight unspecified irregularities in the judiciary and to say that the CJI Mishra isn't doing anything to remedy the situation, despite the letter they wrote him some months ago.
When the Justices were asked if the issues were to do with the Collegium as well, they didn't confirm or deny it. When asked if CJI Mishra should be removed, one of them said, "Let the nation decide on his impeachment."
They said they sent the CJI the letter but didn't hear back, and then they met him again this morning, to no avail.
"We collectively tried to persuade the CJI that certain things aren't in order so take remedial measures but unfortunately our efforts failed," said Justice Chelameswar.
The four judges said many "undesirable" things have occurred in the judiciary lately.
"The administration of the SC is not in order and many things which are less than desirable have happened in last few months," said Justice Chelameswar.
A few minutes before the press conference, the SC said, separately, that the "mysterious death of Justice BH Loya is a serious issue". They asked the Maharashtra government to present all documents to do with his death to the court on Monday. Justice Loya was hearing the Sohrabuddin fake encounter case and died under mysterious circumstances.
The judges also had a grievance that the PIL seeking a probe into Justice Loya's death was assigned to court no. 10 and not to any of the first four benches other than CJI-led bench.
The judges acknowledged that what they were doing - in calling a press conference - was highly unusual.
A look at their career track and antecedents
The events of that day
It was Friday, January 12, 2018. Fridays in Supreme Court are busy days. But four seniormost judges wound up judicial work in 45 minutes. The SC corridor was agog with rumours about an impending unprecedented press conference by them. Journalists rushed to Justice Jasti Chelameswar’s official residence. History was made. The rumours came true. The judges cornered then CJI Dipak Misra.
But Justice Chelameswar donned a worried look, his gaze fixed at the entrance of his residential bungalow. Explaining the worry lines on his forehead, he had said, “If the three johnnies don’t come, I will be in a soup as I had put my neck out.” The three — Justices Ranjan Gogoi, Madan B Lokur and Kurian Joseph — trooped in a little later. Justice Chelameswar sported a smile of relief.
We all know what happened later — how an activist lawyer attended the presser, was stopped from asking questions by journalists and was closeted with Justice Chelameswar immediately after the press conference. How a Left leader went to meet Justice Chelameswar, how the presser was used to exert pressure on the then CJI by politician-lawyers to defer adjudication of Ayodhya case and how it became a ground for moving an unprecedented removal motion by Congress against the then CJI in Parliament.
The presser further unnerved CJI Misra, who was on the back foot since November 2017 when Justice Chelameswar attempted to snatch the CJI’s power as ‘master of roster’ by setting up a fivejudge bench to hear a petition by ‘forum hunting’ activist-lawyers seeking a probe into the CJI’s alleged role in the medical college admission scam.
CJI Misra had to hurriedly set up a five-judge bench to annul Justice Chelameswar’s order and reiterate the CJI’s sole prerogative in assigning a case to a particular bench and determining the number of judges on the bench. The CJI was damned by both the rebel judges and the activist-lawyers for allocating cases of national importance arbitrarily to select benches of “junior” judges perceived to have political leanings.
Less than a year later, CJI Ranjan Gogoi notified a five-judge constitution bench to adjudicate the Ayodhya land dispute case. It surprised many as a three-judge bench on September 27 had rejected a demand for its reference to a five-judge bench and ruled that a three-judge bench would decide it.
CJI Gogoi explained that he used his plenary powers under Order VI Rule 1 of Supreme Court Rules, 2013, to set up the five-judge bench. On wonders why the same rule was not the saviour for CJI Misra when he set up a five-judge bench for reiteration of the CJI’s prerogative in allocating cases to a bench and its numerical strength. While CJI Mishra was damned, the Muslim parties hailed CJI Gogoi saying “this is how a CJI must act”. If a CJI’s orders are favourable, activist-lawyers waste no time in crowning him as the most independent judge on earth.
Allocation of petitions seeking probe into alleged suspicious death of judicial officer B H Loya to a bench headed by Justice Arun Mishra had triggered the January 12 presser. Justice Mishra recused. A
three-judge bench led by CJI Misra heard the case and dismissed the petitions. They drew a lot of flak. The activist-lawyers missed no words in the dictionary to berate the then CJI.
For any CJI, the SC is a pitch of quicksand prepared by activist-politician lawyers. The moment a judge gets into the post of CJI, these lawyers miss no opportunity to attempt to push him on the back foot to make sure the SC entertains their PILs, genuine as well as tainted, which give them immense clout in social, political and bureaucratic circles.
A cornered CJI Misra reacted on expected lines and entertained a huge number of PILs. But CJI Gogoi is not one to be pushed on the back foot. When the CBI vs CBI PIL, followed by another on the Rafale aircraft deal, came up before him, he earned the ire of the same group of lawyers for the manner in which he surgically heard the cases without permitting lengthy arguments. Immediately, they turned against him.
Even before the judgments were delivered, the activist-politician lawyers were at their usual work — spreading the word in the corridors and social media that CJI Gogoi would dismiss both petitions and that he was worse than CJI Misra. These lawyers have already started digging into the past to find some link to brand CJI Gogoi as close to the government. Such is the danger for a CJI.
After his retirement, Justice Chelameswar had boasted that he had strived for transparency and objectivity in the collegium process for selection of judges to the SC and HCs. When he was part of the collegium, Justice Chelameswar had taken advantage of the then CJI’s proposal to abruptly change an earlier recommendation — a Karnataka HC judge’s transfer to Bombay HC was to be annulled and he was to be sent to Allahabad HC.
Justice Chelameswar agreed, but with a quid pro quo — transfer a Kerala HC judge to Andhra Pradesh HC even though he knew that the HC judge, prior to his appointment, had given an affidavit to the SC to never press for his transfer back to AP HC. The CJI had to agree. But the Union government refused to act on this recommendation.
The CJI Gogoi-headed collegium has now recommended transfer of that Kerala HC judge to Bombay HC, superseding its earlier recommendation. What is the status of transparency and objectivity, both then and now, which the judges’ press conference had pressed for?
In SP Gupta case [1981 (sup) 1 SCC 87], described as the first judges’ case, the SC had said, “Unfortunately, it is the easiest thing to make false, reckless and irresponsible allegations against judges in regard to their honesty and integrity and in recent times, the tendency has grown to make such allegations against judges because they have decided the case in a particular manner, either against a dissatisfied litigant or contrary to the view held by a group or, section of politicians or lawyers or members of public.”
How true today after nearly 40 years! When Justice Gogoi took umbrage to the Loya case allocation during the presser, activist-politician lawyers hailed him as the epitome of honesty, integrity, independence and fearlessness. In less than a year, the same lawyers have turned against him merely because he refuses to be cowed down by their tactics and continues to decide cases on merit, with or without meeting their expectations. Such is the life of a CJI, very lonely and unnerving.
The Five main issues that annoyed the Hon Judges
The four senior Supreme Court (SC) judges who called an unprecedented press conference today had grievances to do with the assignment of cases and how the Chief Justice of India Dipak Mishra was handling it. Here are the 5 main issues that annoyed them:
1) The four senior judges+ believe that all important cases get heard by CJI-led bench and do not get distributed to other senior judges heading benches.
2) The four judges also said there have been instances where cases that have far-reaching consequences for the nation and the judiciary were assigned by the Chief Justice selectively - to benches of their preference - and not based on rationality. "This must be guarded against at all costs," said the 4 senior SC judges.
3) Specifically, the Four judges were annoyed that a public interest litigation seeking a probe into Judge B M Loya's "mysterious" death was assigned to court no. 10 and not to any of the first four benches other than the CJI-led bench.
4) The judges further had a simmering grievance about the medical college admissions scam being sent to court no 7 after a Justice Chelameswar headed bench sent it to a five-judge bench of himself, the CJI, himself, and Justices Gogoi, Lokur and Joseph. The medical college admissions scam is to do with the role of sitting and retired judges of high courts in enabling private medical colleges admit students to MBBS courses despite the apex court's order to the contrary.
5) The four judges also said that it was wrong on part of CJI to head a small bench and deal with the memorandum of procedure when it was earlier heard by a five-judge bench.
They felt the ‘CJI was being remote-controlled’
‘Judges With Perceived Bias Given Cases’
In a stunning claim, retired Supreme Court judge Kurian Joseph said he and three other most senior SC judges held their muchdiscussed press conference on January 12 as they felt that then CJI Dipak Misra was being controlled from outside and was allocating cases to judges with political bias.
In an exclusive interview to TOI, Justice Joseph narrated in detail the turbulent times in the apex court, leading to the unprecedented press conference by him with three most senior judges — Justices Jasti Chelameswar, Ranjan Gogoi and Madan B Lokur. Asked what went wrong within four months of Justice Misra taking over as CJI, Justice Joseph said, “There were several instances of external influences on the working of the Supreme Court relating to allocation of cases to benches headed by select judges and appointment of judges to the Supreme Court and high courts.
’Held presser after all attempts failed’
“Someone from outside was controlling the CJI (Dipak Misra), that is what we felt. So we met him, asked him, wrote to him to maintain independence and majesty of the Supreme Court. When all attempts failed, we decided to hold a press conference,” former Supreme Court judge Kurian Joseph told TOI in an exclusive interview.
Asked to elaborate on the “external influence”, Justice Joseph said, “Starkly perceptible signs of influence with regard to allocation of cases to different benches selectively, to select judges who were perceived to be politically biased.”
Asked whether it was a unanimous decision to go for the press conference, he said, “Justice Chelameswar was the initiator of the idea of press conference. But we three agreed with him.”
At the headline-hogging Press conference, the rebel judges questioned the functioning of then CJI Misra, including allocation of hearing of a petition seeking probe into the alleged suspicious death of judicial officer B H Loya to a bench headed by Justice Arun Mishra, who later recused from the case after a showdown with Justice Chelameswar at the routine morning meeting of SC judges on January 13.
The presser and allegations of the then CJI getting cosy with the establishment were cited as grounds in the motion moved by Congressled opposition parties in the Rajya Sabha seeking Justice Misra’s removal. The notice for the motion was rejected by Rajya Sabha chairman M Venkaiah Naidu for lack of any convincing grounds.
Born in a family with modest means, Justice Joseph persevered to rise in his profession, reaching the number three spot in the SC. His father was a clerk in the Kerala high court, where he started his practice in 1979 at the age of 26. He was appointed additional advocate general of Kerala in 1994 and was designated a senior advocate in 1996.
“It was a proud moment for me when I took oath as a judge of the Kerala HC in 2000, the HC where my father had worked as a clerk. His meagre income was insufficient to run a large household comprising seven children. I used to go to school barefoot and got my first slippers when I was in Class 7,” he said.
A deeply spiritual person, Justice Joseph believes that dispensing justice is a constitutional duty where compassion holds the balance. In his tenure of five years and eight months, he disposed of 8,612 cases and wrote over 1,000 detailed judgments.
His prayer before deciding cases would humble the most knowledgeable, “I always had the same prayer on my lips when I heard a case: ‘God, let justice not be denied to a deserving person only because of my lack of knowledge or inadequate preparation on my part. And give me wisdom to discern justice in the case’.” Justice Joseph said he read each and every case file and his law clerks were utilised only for research purposes.
Allahabad HC, Devi Dayal case, 1959: CJ’s right to assign cases
No greater damage can be caused to the administration of justice and to the confidence of people in judicial institutions when judges of the higher courts publicly express lack of faith in the subordinate judges,” the Supreme Court had said more than two decades ago in Braj Kishore Thakur case [1997 (4) SCC 65]. The SC was commenting at the diatribe of an HC judge that a certain trial court judge did not have proper knowledge of law.
Imagine the catastrophic damage to people’s faith in judiciary and administration of justice when four seniormost judges of the SC in a coup-like fashion engineered a tweet inviting the media to a certain judge’s residence, slipped out of the SC at noon on a busy Friday and stunned the world by holding a press conference expressing no confidence in the fairness of the Chief Justice of India in assigning sensitive cases of national importance. They alleged that these always went to hand-picked benches headed by junior judges. At the same time, they acknowledge that all judges in the SC were equal, hence no seniorjunior divide.
Since 1950, various constitutional courts have frowned at litigants, lawyers and judges attempting to assign cases to a particular judge or bench. The Allahabad HC in Devi Dayal case [AIR 1959 Allahabad 421] had said, “It is only the chief justice who has the right and the power to decide which judge is to sit alone and which cases such judge can decide; further, it is again for the CJ to determine which judges shall constitute a division bench and what work those benches will do... It is for the CJ to allot work to judges and judges can do only such work as is allotted to them.” It went on to say that an order passed by a judge or a bench in a case would not be appropriate if that case had not been assigned to that judge or bench by the chief justice.
The Allahabad HC ruling has been the signature tune of higher courts for the last six decades. In Narayan Shamrao Puranik case [AIR 1982 SC 1198], the SC had said, “The chief justice is the master of the roster. He has full power, authority and jurisdiction in the matter of allocation of business of the HC.” The CJ had this power not only as per rules but it “inheres in him in the very nature of things”.
A full bench of Madras HC in 1991 in Mayavaram Financial Corporation Ltd had said, “The chief justice has the inherent power to allocate the judicial business of the high court including who of the judges should sit alone and who should constitute the bench of two or more judges. No litigant shall have a right to question jurisdiction of judges or the judge hearing the case. No person can claim as a matter of right that his petition be heard by a single judge or a division bench or a particular judge or a particular division bench. No judge or bench will assume jurisdiction unless the case is allotted to them under the orders of the CJ.”
So, is the CJI’s decision to assign petitions on CBI special judge B H Loya’s death to a bench headed by a junior judge the real trigger for the unprecedented press conference? Or, was there more to it than meets the eye? Was the rebellion fuelled by personal ambitions of a certain someone? Or were there lawyerpoliticians who conspired to scuttle the exclusive prerogative of the CJI in assigning cases? Could it also be because the CJI appeared to expedite hearing in a seven year-old appeal in a certain 70-year-old ‘sensitive’ litigation brushing aside feverish and persistent pleas of lawyer-politicians to post it to July 2019? Did certain lawyers act as catalysts for the eruption in the press conference? Why did a lawyer who represents a petitioner in the Loya case attend the press conference and get closeted with the judge at whose house the presser was held? It is hard to lift the veil on the real cause behind the press conference.
Sitting atop a pyramidal three-tier justice delivery system, the SC has been serving as the final arbiter of all kinds of disputes — political, social, economic and personal. By the very nature of judicial decisions, most often only one party to the dispute emerges victorious in a litigation. With stakes running high in cases, especially in commercial and public interest litigations which with time have become more and more political interest litigations, the lawyers seek an escape route for their failure in the SC by pushing the blame at ‘bad assigning’ of the case.
In the age of free speech, dissent and accusations spread faster than plague on social networks. If one praises a certain judge, he will be branded a stooge and social media will register hundreds of likes from people who have no knowledge either about
the person being targeted or the judge. Rumours travel faster than electricity and easily get accepted as ‘fact’ on social media. Take for example, an invitation extended to the media by the NALSA executive chairman, a very senior SC judge, to explain the help it is going to render to lakhs of poor litigants in the hinterland through legal clinics. Despite 24 hours notice, only a few journalists, mostly those who cover the apex court daily, turned up. In contrast, just a tweet went out hinting about the press conference of four senior judges barely half an hour before the event. It attracted swarms of print and electronic media journalists, including eminent ones who seldom cover courts.
A seasoned politician would have been surprised by the media response at such short notice.
The press conference’s attempt to demolish the unitary command structure of the CJI for assignment of cases appears to herald a coalition era in the SC and possibly would percolate to HCs. In the coalition era on the political front, a government, holding reins of power through a slender majority, was dependent on every single MP. This allowed each MP to have his coterie comprising intellectuals, journalists and activists. Thus, in the coalition era, a lot of people were happy as it served their personal ambitions and interests. In a single party government, there is a drastic reduction in the number of key MPs, which in turn shrinks the population of those thriving on patronage in these three tribes.
Is judiciary going to see a similar coalition era after the press conference, when not only judges but lawyers, especially the activists and the brazenly belligerent ones, will have a say in deciding which judge should hear which case? Though the press conference might just be the bitter dose required for ushering in transparency in assigning of cases to benches, it has set a precedent for other judges.
They now have the licence to hold a press conference whenever they feel the CJI, an HC CJ or any judge is doing anything wrong, even on a wrong perception.
The press conference’s attempt to demolish the unitary command structure of the Chief Justice of India for the assignment of cases appears to herald a coalition era in the apex court and possibly would percolate to the high courts
Retired judges', AG's and lawyers' reactions
In what could be seen as possible damage control, Attorney General KK Venugopal hinted to ANI that the turmoil could be resolved by [the next day], even as he stressed that the press conference "could have been avoided."
"Today's press conference could have been avoided, but the Supreme Court judges are all statesman with vast experience and knowledge, and I am sure by tomorrow, the entire issue would be
Sources in the government told news agency PTI that the conflict was an "internal" matter of the judiciary. This may reflect the government's reluctance to interfere
Government sources, however, added that the apex court should settle the issue at the earliest as the faith of the people in the judiciary is at stake
Four senior Supreme Court (SC) judges today called an unprecedented press conference today acknowledged that what they were doing - in speaking to the media - was highly unusual. "This is an extraordinary event and it is with no pleasure we are doing this...We are left with no choice but to address the nation," said Justice Chelameswar. Here is what other lawyers and some former SC lawyers have to say about that:
- PB Sawant, former Supreme Court judge: Judges had to come before media & take this unprecedented step. This means that there is a serious dispute, either with CJI or some internal dispute.
- Justice R.S. Sodhi: Issues don't matter. It is their complaint on administrative matter. They are only 4, there are 23 others. 4 get together and show the Chief Justice in a poor light. It is immature and childish behaviour. I think all 4 judges should be impeached, they have no business to sit there and deliver verdicts anymore.
- Mukul Mudgal, retired high court judge: There must be some serious reason that they were left with no other option but to hold a press conference. But what connection does Loya have with this? I know nothing about this and I don't want to make comments about any political matter
- Indira Jaising, Supreme Court advocate: I think it's a historic Press Conference. It was very well done. I think we, the people of India, have a right to know what is going on within the judiciary and I welcome this.
- Salman Khurshid, senior advocate and Congress leader: Deeply sad and pained, also feel a sense of agony that the highest court of the land should come under such severe stress that forces judges to address the media.
- Prashant Bhushan, lawyer and politician: It is certainly a very serious development which has cast a huge shadow on the Chief Justice. Somebody had to confront the situation, where CJI is blatantly misusing his powers, hence the unprecedented step (by the 4 judges).
- Senior lawyer KTS Tulsi: I am sure they (four judges) have exhausted all other remedies. One could see pain on their faces while they were speaking. The whole matter is with respect to judicial propriety. The question is of natural justice. Whatever is the law for common man, it is applied much more rigorously as far as judges are concerned because they must always be above suspicion
- BJP MP Subramanian Swamy: We can't criticize them, they are men of great integrity and have sacrificed a lot of their legal career, where they could've made money as senior counsels. We must respect them. The PM must ensure that the 4 judges and the CJI, in fact, the whole SC come to one opinion and proceed further.
(With inputs from agencies)
Lawyer-politicians fanned the flames
The unprecedented press conference by four seniormost Supreme Court judges on January 12 shattered the calm exterior of the judiciary. Most of the four wanted to “discharge their debt to the nation” by informing the public about the “anomalous” administrative decisions of the Chief Justice of India.
They were naive to assume that their going public would force a course correction in the CJI’s administrative decisions, which included assigning of cases to benches headed by “junior” judges. After watching the unfolding events from close quarters, one is sure they would not have imagined that a simple “debt discharging” press conference would inflict a deep wound on judicial independence, invite political interference and, worse, allow lawyer-politicians to adopt a “run with the hare and hunt with the hounds” strategy to attempt to pressurise the CJI.
The four judges candidly said that allocation of petitions seeking a probe into judicial officer B H Loya’s death to a “junior SC judge” was the tripping point.
In reality, it was the personal perception about handling of the medical scam case, coupled with a judge’s unflagging ambition to achieve the unattainable, which fuelled the rebellion.
Lawyer-politicians seized the opportunity and added two more cases — one, sudden activation of a dormant Ayodhya case on the request of BJP leader Subramanian Swamy and second, reopening of 1984 anti-Sikh riot cases by appointment of a committee headed by former Delhi HC judge S N Dhingra — to target the CJI.
On the political front, these lawyer-politicians kept the CJI on tenterhooks by strongly lobbying with their party bosses to initiate a motion for the CJI’s removal. In court, they seamlessly slipped into black robes and smilingly argued before the bench seeking relief in politically sensitive cases.
The SC had not experienced the machinations of such lawyer-politicians when it said in C Ravichandran Iyer case [1995 (5) SCC 457], “The judges of higher echelons should not be mere men of clay with all the frailties and foibles, human failings and weak character which may be found in those in other walks of life.
They should be men of fighting faith with tough fibre not susceptible to any pressure — economic, political or any sort.”
It is easy to say that judges must be of tougher material than lawyers, the community from which they are mostly drawn. But a threat to bring removal motion against a judge as a sinister design to make him cower in fear of ignominy has its effect on a man who also lives within society’s bounds.
While lawyer-politicians attempted to reap advantage in important cases having political ramifications by attempting to subdue the CJI, the executive too found the fluid situation a fertile ground to undermine judicial independence. Though mercifully it did not interfere in the internal impasse, it definitely took advantage of lack of unity within the collegium to stall appointment of SC and HC judges.
So, what did the press conference achieve? It is doubtful whether the grievance about allocation of cases to “junior” judges has been addressed. But surely, it opened the field for political and executive interference in judiciary? In 1995, two bar associations of Bombay (now Mumbai) passed resolutions demanding resignation of then Chief Justice of Bombay HC A M Bhattacharjee, alleging that an astronomical amount was paid by a foreign publisher to market two books authored by him abroad and that this could influence the CJ’s judicial decisions given the lawyers involved in striking the deal. This issue was brought before the SC by one Ravichandran Iyer. The SC had said that except Parliament dealing with a removal motion, “no other forum or fora or platform is available for discussion of the conduct of a judge in the discharge of his duties as a judge of the SC or HC, much less a bar council or a group of practising advocates. They are prohibited to discuss the conduct of a judge in the discharge of his duties or pass any resolution in that behalf ”.
Referring to the “extraordinary complexity of modern litigation”, the SC had in the same judgment said, “The independence of judiciary is not limited only to independence from executive pressure or influence, it is a wider concept which takes within its sweep independence from any other pressure and prejudices. It has many dimensions, viz, fearlessness of other power centres, economic and political, freedom from prejudices acquired and nourished by the class to which the judge belongs.”
The SC also talked about judicial individualism. It said every judge in constitutional courts enjoyed individual freedom and peers could not exert pressure to make him act in a charted manner.
To buttress this argument, the SC had quoted the dissenting opinion of two US Supreme Court judges in the 1970 case ‘Stephen S Chandler vs Judicial Council of the Tenth Circuit of the US’.
The dissenting judgment said, “Once a federal judge is confirmed by the Senate and takes his oath, he is independent of every other judge. He commonly works with other federal judges who are likewise sovereign. But neither one alone nor any number banded together can act as censor and place sanctions on him... Some judges may be displeasing to those who walk in more measured, conservative steps but those idiosyncrasies can be of no possible constitutional concern to other federal judges.” It is time SC and HC judges took stock of the fallout of the presser and put heads together to devise ways and means to ward off political, executive and economic powers ever so eager to exert influence on the judiciary, undermining the cardinality of judicial independence.
Differences first erupted over medical scam PIL
Simmering differences in Supreme Court had first erupted over medical scam PIL
NEW DELHI: The closing of ranks in the judiciary, witnessed in the National Judicial Appointments Commission (NJAC) case three years ago when the Supreme Court (SC) revived the collegium system for the selection of judges to constitutional courts, lay in tatters on Friday when the simmering discontent among the top five SC judges burst out in the open.
How cases are allocated in Supreme Court
The immediate trigger for the unprecedented press conference by the four most senior judges — Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph — may have been CJI Dipak Misra's refusal to accede to their request to delete the PIL seeking a probe into CBI judge B M Loya's death from the list of business before court number 10 but the discontent over not being assigned important cases that get space in newspapers and TV channels was simmering for a long time, even before Misra took over the top post in August last year.
Justice Chelameswar had protested against the manner in which the collegium functioned and even kept away from its meetings while deciding to put written comments on file for the selection of judges of the SC and HCs during the tenure of then CJI T S Thakur and continued with his stand during CJI H S Khehar's term. However, he had joined collegium meetings during CJI Misra's term.
What the rift in SC is about
The first of the major differences between Justice Chelameswar and CJI Misra surfaced in public when a PIL filed by the Committee for Judicial Accountability and Reforms alleging judges' involvement in a medical scam was mentioned for urgent hearing before a bench headed by Justice Chelameswar in December last year. Justice Chelameswar put it up for hearing the next day. But, as is the practice in the SC, the petition got referred to the CJI as the master of roster and he assigned it to a bench headed by Justice A K Sikri.
But before the Justice Sikri-led bench could hear it the next day, another petition by advocate Kamini Jaiswal, which was identical to the one filed by the NGO, was mentioned for hearing before the bench headed by Justice Chelameswar with a prayer for urgent hearing. Justice Chelameswar ordered a hearing on the petition at 12.45pm and passed an order placing the petition before a five-judge bench comprising the CJI and the next four most senior judges.
As veiled allegations were made against the CJI, with the petitioner's counsel mentioning the arrest of a former Orissa HC judge by the CBI for allegedly taking a bribe to fix a case relating to a medical college, the petition drew massive attention. The other bench headed by Justice Sikri ordered the matter to be placed before the CJI for hearing before an appropriate bench.
With Justice Chelameswar virtually taking over the function of the CJI in assigning the petition to a Constitution bench, the CJI hurriedly convened a seven-judge bench, which, within minutes, got reduced to a five-judge bench, and a decision came swiftly that no judge other than the CJI can assign a petition to a particular bench as the CJI is the master of the roster. It annulled Justice Chelameswar's order and assigned the petition by Jaiswal to a bench of Justices R K Agrawal, Arun Mishra and A M Khanwilkar, who are no. 8, 10 and 17, respectively, in the hierarchy.
Privately, the senior judges shared their anguish over the CJI not reposing trust in any of them with important cases. Later, the non-assigning of important cases to them, culminating with the petition on Loya's death, triggered the public outburst.
Trigger: Denial of senior bench for PIL on Judge Loya’s death
New Delhi: The final trigger for the stunning press conference by the four seniormost judges of the Supreme Court came at 10.15am on Friday — just 15 minutes before commencement of proceedings — when
Chief Justice Dipak Misra bluntly turned down their last-minute request to shift a politically sensitive case from a particular apex court bench.
The CJI made it clear that he would not break tradition, backed by a recent five-judge bench decision giving him sole discretion to assign cases to benches of his choice.
On Thursday, a CJI-led bench had admitted a public interest litigation (PIL) seeking a probe into the death of B H Loya, who as special CBI judge was hearing the case of gangster Sohrabuddin Sheikh’s “fake” encounter.
The four judges — all members of the crucial collegium by virtue of being No. 2 to No. 5 in seniority — thought that a matter of importance to the integrity of the judiciary and to the nation should be assigned to a bench headed by a judge who was more senior than Justice Arun Mishra, who is 10th in the pecking order of the 25 Supreme Court judges.
With the CJI refusing to heed the demand, the rebellious quartet hurriedly called the media at noon after quickly completing the day’s work.
Loya died in Nagpur on December 1, 2014. The CBI court subsequently acquitted BJP president Amit Shah, who was among the accused, along with a few others.
Supreme Court sources said Misra’s decision was backed by the November 2017 verdict saying the CJI was “master of the roster” and was free to assign cases to any bench and determine the number and composition of judges on a bench.
Disappointed by the rejection of their request, the four judges told CJI Misra that they would act as they deemed fit. All four, heading separate benches from court numbers 2 to 5, finished their day’s work within one-and-ahalf hours and rushed to Justice Chelameswar’s house for a press conference which started at 12.20 pm.
The CJI’s office said the chief justice has made it clear that he would not break with tradition giving him sole discretion to assign cases to benches of his choice.
CJI’s office uses rebels’ quote, asks if all are equal, what is the fight
Cases have been assigned by ex-CJIs — Justices H L Dattu, T S Thakur, J S Khehar — as per their discretion and the present CJI is not doing anything that is contrary to the tradition backed by the constitution bench ruling, sources in the CJI’s office said.
This assertion by the CJI’s office found reflection in the letter written by the four seniormost judges to the CJI two months ago. It had said: “There have been instances where cases having far-reaching consequences for the nation and the institution had been assigned by the Chief Justices of this Court selectively to the benches ‘of their preference’ without any rationale basis for such assignment. This must be guarded against at all costs”.
The letter also said: “The convention of recognising the privilege of the CJI to form roster and assign cases to different members/benches of the SC is a convention devised for disciplined and efficient transaction of business of the court but not a recognition of any superior authority, legal or factual of the CJI over his colleagues. It is too well settled in the jurisprudence of this country that the CJI is only the first among equals — nothing more or nothing less.”
The CJI’s office used this quote and said if these most senior judges were equal to the so-called junior judges in the court, then “what is the grievance against a case getting listed before judge X or judge Y?”
‘Super sensitive’ cases that went to junior SC judges: 1997-2017
1997-2017- 15 ‘super sensitive’ cases that went to junior SC judges
[15 ‘super sensitive’ cases in past 20 years went to junior SC judges'
The dramatic press conference by the four seniormost Supreme Court judges to allege that sensitive and important cases were being assigned to “select benches” headed by junior SC judges in the last few months — a charge intended to target Chief Justice Dipak Misra — appears contrary to the way in which such cases have been allotted in the past 20 years.
TOI tracked the most ‘sensitive cases of national importance’ in the last two decades. Of them, at least 15 — including those relating to the Bofors scam, Rajiv Gandhi’s assassination, L K Advani’s trial in the Babri Masjid demolition case, the Sohrabuddin Sheikh fake encounter, Best Bakery and the case that changed how BCCI is run — all have one thing in common. They were assigned by the then CJIs not to any of the four seniormost judges of the SC but to ‘select benches’ headed by junior judges.
There is little evidence to suggest that seniority of judges is a criterion for allocation of cases, as was suggested by the quartet of Justices J Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph in their letter to the CJI. The manner in which successive CJIs have assigned cases points to a more random selection of benches.
Though the dissenting judges did not mention particular cases, apart from confirming that the case of Judge B H Loya was one, the view that “less senior” benches are not as competent does not seem to have been shared by past CJIs.
Rajiv murder case was assigned to three junior Supreme Court judges
Some legal experts have argued that the argument raised by the senior SC judges casts a shadow over the independence of other benches and this requires some supportive evidence. Other opinion has held that there is merit in the charges of ‘bench fixing’ levelled by the senior judges and requires a response by the CJI who has held that the roster is his domain as has been the case in the past. Those who disagree with the rebel judges point out that the suggestion that an effort to discreetly "help" the government in cases that might embarrass it needs to be backed up or could be seen as a means to pressure benches hearing various cases.
The first of the important cases tracked by TOI relates to appeals filed in 1998 by Nalini and others challenging their conviction and death sentence in the Rajiv Gandhi assassination case. At that point of time, it was the most high profile case in the country. But the then CJI assigned it to three junior judges — K T Thomas, D P Wadhawa and S S M Qadri who sat in courts much farther than those headed by the fifth seniormost SC judge. No questions were raised over selection.
In 1999, the CBI filed a new chargesheet in the Bofors case, making stunning allegations. NRI industrialist brothers Srichand and Gopichand Hinduja were made accused. The trial court refused bail. When they came to the SC seeking bail, the then CJI assigned it to court number 8, headed by junior judge M B Shah. They got bail by putting Rs 15 crore bonds. This was not regarded as 'bench fixing' by the then CJI.
Advocate Lily Thomas filed a writ petition in 2005 seeking disqualification of MPs and MLAs upon their conviction and sentence for two or more years. Elected representatives were used to holding on to their memberships in Parliament and assemblies by filing an appeal. This game changing petition was assigned by the then CJI to court number 9, which was headed by Justice A K Patnaik, then a junior judge.
The Best Bakery case came to SC in 2004 through a writ petition filed by Zahira Habibullah Sheikh. The Gujarat riots case, which earned the then Gujarat government the tag of 'modern day Nero', was handled by then junior judge Justice Arijit Pasayat sitting in court number 11.
Rubabuddin Sheikh, brother of Sohrabuddin who was killed in a fake encounter, filed a writ petition in 2007. The case, which turned out to be politically crucial for Amit Shah and Gujarat police, was assigned to a bench sitting in court number 11 headed by Justice Tarun Chatterjee, one of the junior most SC judges at that time. Orders from the court created trouble for BJP and its leadership in Gujarat and did not attract any comment from activist lawyers about possible 'bench fixing'.
In 2009, renowned advocate Ram Jethmalani launched a crusade against black money by filing a petition in the SC. The case, which became an election issue in 2014, was handled by court number 9 and by a bench of then 'junior judges' Justices B Sudershan Reddy and S S Nijjar. A year later in 2010, an NGO led by advocate Prashant Bhushan brought the case relating to alleged irregular allotment of 2G spectrum and the then CJI assigned it to court number 11 of Justices G S Singhvi and A K Ganguly. No one can fault the way they handled the case despite being juniors.
The same year, the Delhi HC gave a landmark judgment decriminalising consensual sexual relationship in private between adults of LGBTQ community. The appeal by one Suresh Kumar Kaushal in the SC was assigned by to court number 11where a bench headed by Justice G S Singhvi heard it for the first time.
In 2011, the CBI filed an appeal, after much dithering, questioning the Allahabad HC decision to drop conspiracy charge against L K Advani and a host of BJP stalwarts in the Babri masji demolition case. In March 4, 2011, the case was heard in court 8 by a bench of Justices V S Sirpurkar and T S Thakur. The bench changed to Justices H L Dattu and Chandramauli Prasad in court 11, then to court number 9 of Justices M Y Eqbal and Arun Mishra in 2016. It passed on to court number 6 of Justices P C Ghose and R F Nariman which gave judgment on April 19 last year reviving the conspiracy charge.
In 2012, four explosive PILs were filed — irregular allotment of coal blocks that came close to singe then PM Manmohan Singh, validity of Aadhaar, validity of 66A of Information Technology Act and an alleged sexual assault case against Rahul Gandhi. The coal scam petition by advocate M L Sharma was assigned to a bench headed by Justice R M Lodha sitting in court number 7.
The petition challenging the validity of Aadhaar was the only exception to the general rule as it was assigned to court number 5, headed by Justice B S Chauhan. Still the judges with seniority at two, three and four could harbour a grievance why it was not assigned to them by the CJI.
An appeal filed by one Kishore Samrite presented a judgment passed by Allahabad HC, which had dismissed Samrite's petition with a cost of Rs 50 lakh, of which Rs 20 lakh was to be given to Rahul Gandhi. The then CJI assigned this to a bench of Justices V S Sirpurkar and T S Thakur in court number 8 and then changed the bench to Justices B S Chauhan and Swatanter Kumar, which dismissed it with a cost of Rs 5 lakh on Samrite.
Seniority is a sacred principle for judges
New Delhi: Seniority is a sensitive issue for high court judges — being the determinant of their career prospects, be it possible appointment as chief justice of an HC, elevation to the Supreme Court and, for the lucky ones, appointment as Chief Justice of India.
Though there have been many instances in the past when HC judges were elevated directly to the SC as judges without becoming chief justices of HCs, the principle of seniority continues to be treated with utmost reverence.
A judge in the SC gets seniority from the time he takes oath. If more than one take oath on the same day, the one who is sworn in first becomes the senior among them.
In case of Justice Jasti Chelameswar, one of the prime movers in the revolt against CJI Dipak Misra on Friday, it was non-adherence to seniority in elevation to the SC as a judge that robbed him of the chance of becoming the CJI.
Justice Chelameswar was appointed as an HC judge on June 23, 1997, which was after the appointment of CJI Misra and his immediate predecessor Justice J S Khehar. Justice Misra was appointed as an HC judge on January 17, 1996 while Justice Khehar was appointed on February 8, 1999. But Justice Chelameswar became chief justice of Gauhati HC on May 3, 2007, much before Justice Khehar (November 29, 2009) and Justice Misra (December 23, 2009).
However, Justice Chelameswar’s seniority advantage of more than two years over Justices Khehar and Misra was nullified by the then collegium, which appointed Justice Khehar as an SC judge on September 13, 2011, nearly a month before Justices Misra and Chelameswar took oath on October 10, 2011.
Fate again played played a trick with Justice Chelameswar as he took oath after Justice Misra, the latter, thus, becoming senior to him.
If seniority had taken its course, Justice Chelameswar would have taken over CJI on January 4, 2017 after the retirement of then CJI T S Thakur; ie, before even Justice Khehar, who was succeeded by Justice Misra on August 28, 2017.
With the collegium, along with destiny, deciding otherwise, Justice Chelameswar has never refrained from articulating his gripe about the games played in the collegium as it selects people as judges of the SC and HCs. He had put this angst on record in his dissenting judgment as part of the five-judge bench, which by majority had quashed the NJAC which was meant to end collegium’s monopoly in the appointment of judges of HCs and SC .
Quoting former SC judge Ruma Pal Justice Chelameswar had said that the collegium acted like a coterie, and that there was a barter system among member judges.
Seniority carries other benefits too, especially the privilege of appointing judges of the SC and HCs. The first three SC judges, including the CJI, get to select persons for appointment as judges of HCs. The privilege of appointing chief justices belongs to the five seniormost judges who comprise the collegium. The CJIheaded body also selects persons from among advocates, HC judges and HC CJs for appointment as SC judges. This earns the top five enormous respect among advocates and HC judges.
2018: ‘No Senior/ Junior Judges; CJI ‘ first among equals’, s/he alone can assign cases
No Senior Or Junior Judges, Top Court Says
The Supreme Court ruled that there was no concept of “senior” or “junior” SC judges as all were equally competent to decide any case allotted to them by the Chief Justice of India, who alone had the power to constitute benches and assign cases.
Dismissing a PIL filed by advocate Ashok Pande demanding that the CJI-headed three-judge bench must have the two other most senior judges on it, a bench of CJI Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud said it was unimpeachably ruled earlier by a fivejudge bench that the CJI was the master of the roster and had the sole discretion of deciding the composition of benches and assigning cases.
At an unprecedented press conference on January 12, four senior judges led by Justice J Chelameswar had specifically complained against the allocation of a petition relating to judicial officer B H Loya’s death to a bench headed by a “junior” judge while questioning the CJI’s alleged arbitrary allocation of important cases to benches headed by “select junior” judges.
Writing the unanimous judgment that appeared to be a point-by-point rebuttal to the judges’ grievances aired in the press conference and Justice Chelameswar’s subsequent interaction with the media, Justice Chandrachud said the Chief Justice of India was the first among equals (judges) and had “exclusive prerogative in the allocation of cases and the constitution of benches”. He added, “As a repository of constitutional trust, the CJI is an institution in himself.”
Chief justices of HCs to decide allocation of cases: SC
Justice Chandrachud said: “The authority which is conferred upon the CJI, it must be remembered, is vested in a high constitutional functionary. The authority is entrusted to the CJI because such an entrustment of functions is necessary for the efficient transaction of the administrative and judicial work of the SC.”
“The entrustment of functions to the CJI as the head of the institution is with the purpose of securing the position of the SC as an independent safeguard for the preservation of personal liberty. There cannot be a presumption of mistrust. The oath of office demands nothing less.”
Slamming the petitioner’s attempt to classify Supreme Court judges as “senior” and “junior” according to the date of their taking oath in the apex court, Justice Chandrachud said, “Every judge appointed to the SC is invested with equal duty of adjudicating cases which come to the court and are assigned by the CJI. Seniority in terms of appointment has no bearing on which cases a judge should hear.
“To suggest that any judge would be more capable of deciding particular cases or that certain categories of cases should be assigned only to the senior-most among SC judges has no foundation in principle or precedent. To hold otherwise would be to cast reflection on the competence and ability of other judges to deal with all cases assigned by the CJI, notwithstanding the fact that they have fulfilled the qualification mandated by the Constitution for appointment to the office.”
Another PIL by senior advocate and former law minister Shanti Bhushan, filed through his advocate-son Prashant Bhushan, which sought assigning of cases to the collegium comprising the CJI and the four most senior judges, is pending with the SC. The three-judge bench said, “The Supreme Court has been authorised under Article 145 to frame Rules of Procedure...the petitioner is not entitled to seek a direction that benches of this court should be constituted in a particular manner.”
Touching on the functioning of high courts headed by chief justices, the SC said, “In deciding upon the allocation of work and the constitution of benches, the chief justices of HCs have to determine the number of benches which need to be assigned a particular subject matter keeping in view the inflow of work and arrears. The CJs are guided by the need to ensure orderly functioning of the court and the expeditious disposal of cases.”
Transgressing separation of power between legislature, executive and judiciary?
In March 2017, members of Parliament cutting across party lines were agitated by the Su preme Court allegedly transgressing the cardinal separation of power between the legislature, the executive and the judiciary . The MPs accused the SC of “overstepping“ its jurisdiction to get into the law-making domain through its judgments.
They appear to be still riled by the October 2015 judgment of the SC striking down a unanimously passed legislation creating National Judicial Appointments Commission (NJAC) to replace the `opaque' collegium system for selection of judges. What added fuel to the anger was the SC's decision to entertain a PIL questioning life-long pension and freebies to MPs and MLAs.
Law minister Ravi Shankar Prasad attempted to assuage the ruffled feathers by declaring, “Parliament to enact, executive to formulate and judiciary to interpret. In this light, if separation of power principle is binding on all, I am sorry to say that it is equally binding on the judiciary .“
Why did the SC transgress the boundary of separation of power and attempt to perform tasks entrusted to the legislature and the executive? Since 1950, the SC has been the sentinel of fundamental rights of citizens, who were many a time ignored by both legislators and the executive. In protecting these precious rights, the SC had to walk the extra mile.
Remember Vishaka case?
Though the Constitution had guaranteed equal opportunity to men and women, women had been facing sexual harassment at work place for decades, enduring the depraved acts of male superiors in offices. Lawmakers knew this. But they failed to take steps to legislate and protect women from depraved male colleagues.
The SC preferred not to remain silent. It virtually legislated by providing a mechanism for working women to complain against colleagues and bosses if they passed sexist remarks or indulged in sexual harassment. None of the MPs termed this judgment as judicial overreach.
And the Shah Bano case? For decades, divorced Muslim women lived a life in penury as there was no provision in Muslim personal law to fasten liability on husbands to provide for maintenance to wives after talaq. The SC craftily used Section 125 of Criminal Procedure Code to step around the vacuum in Muslim personal law and granted alimony to divorced Muslim women. No one protested against this judgment as judicial overreach. In fact, it was hailed as a secular judgment. In a federal structure like ours governed by the principle of separation of powers, it is difficult for the judiciary , tasked to protect the fundamental rights of poor voiceless citizens, to close the doors of relief saying the boundary of separation of power is too high to scale.
Take for example the Indra Sawhney case. The SC was hailed as the institution that quelled wild protests by students by ruling in favour of the legislation granting reservation to OBCs, which was over and above the existing quota for SCs and STs. However, it also legislated by capping total quota at 50% of government jobs. The legislators did not mind, as the SC ruling had doused the protests.
The SC transgressed the principle of separation of power again in S R Bommai case by severely curtailing the Union government's power under the dreaded Article 356, under which the Centre, till the 1990s, used to topple elected governments in states at will by imposing President's rule. The restrictions on use of Article 356 were termed as an interpretation of the Constitution, even though for an independent analyst it could qualify as legislative exercise by the SC.
On the election front too, the SC has legislated many times. In the Association of Democratic Reforms case, it put in a new law making it mandatory for candidates to declare their educational, wealth and criminal details to enable voters to make an informed choice while pushing the EVM button.
It also brought in the concept of NOTA, which gave the voter the option of declaring that none of the contesting candidates was worthy of his vote. In addition, the SC also legislated by declaring that an elected representative, who has been convicted and sentenced in such a manner to earn disqualification, cannot continue as a member of the House concerned by merely filing an appeal against the conviction and sentence in a higher court.
No one protested against it as public sentiment, given the abuse of position by some elected representatives, was in favour of the judgment.Parliamentarians have a right to criticise the SC, for it is manned by human beings who are not infallible. But they should always keep in mind what the SC said in S P Gupta case [1982 (2) SCR 365], “...While the administration of justice draws its legal sanction from the Constitution, its credibility rests in the faith of the people. Indispensable to that faith is the independence of the judiciary . An independent and impartial judiciary supplies the reason for the judicial institution, it also gives character and content to the constitutional milieu.“
Rational criticism, and not motivated angst, always strengthens an institution. And we all know and believe that wise parliamentarians would always mean well to criticise the SC in such a manner so as to strengthen its independence to enable it to dispense justice without fear and favour.
Judicial overreach and co-governing India
Q & A - `Court appears to be engaging in unrestrained judicial overreach ... uncertainty around policy because of SC interventions'
Some recent Supreme Court judgments, which have had a significant impact on policy issues, have triggered a debate on its powers. AP Shah, former chief justice of Delhi high court and former law commission chairman, spoke to Sanjiv Shankaran on the issue and the apex court's fundamental role:
Is SC's role in co-governing India consistent with Constitution's spirit?
In the 1980s, after the Emergency, judiciary transformed itself into an institution that was enjoined to promote the ideals of socio-economic and political justice.
Judiciary developed public interest litigation, or PILs, as a jurisdiction to transform constitutional promises into reality , and open the doors to those groups of people who were not free to approach the courts due to socio-economic factors. The idea was to make human rights meaningful for weaker sections of society. Then it gradually recognised rights of undertrials, juveniles, right to privacy, right to speedy trials and so on. It also covered areas like environment. This is how the idea of PILs began and started expanding. Article 21 was expanded as well, recognising right to education, work, shelter and so on. It was undeniably a glorious chapter in history of Indian judiciary .
Lately , however, the court has taken on a role of co-governance. Indeed, I fear that it has become the norm almost. The court, through its decisions, is virtually overriding the constitutional concept of separation of powers. There are judicial diktats on every other subject, many of which are rank populist decisions, for example, the decision in the BCCI matter, where the court is practically running the cricket board on a day to day basis. Besides this, the court also entertains completely frivolous matters like the national anthem case, or the one on Sikh jokes.
In sum, the court appears to be engaging in unrestrained judicial overreach, mostly by recourse to Article 142, and issuing judicial diktats.
Populist approach would destroy the idea of PIL as envisaged originally decades ago. SC is trying to govern the country, and trying to correct every ill that exists.But this is neither within the powers of the court, nor does it have the capacity to do so. The priority must be protection of human rights and fundamental rights.
Does the recent record suggest that evidentiary basis for judgments is satisfactory , particularly if the outcome has a significant fallout?
The alcohol ban is a case in point where the court's decision has had catastrophic financial consequences. In effect, the court drastically altered the central government's policy without realising the implications. I believe this is in the range of anything between Rs 50,000-75,000 crore, and has led to the loss of a million jobs.
SC has missed the target on this one.
There should have been decisive steps taken against drunken driving. The decision may be well intentioned, but it has effectively gone against the thriving hospitality industry.
As a result, there is also a lot of uncertainty around policy , because of the interventions of SC. Such decisions have serious financial repercussions, which, I fear, the court is not equipped to understand.
Taking a look at Aadhaar case, is SC's scheduling of hearings contributing in a round about way to a roll-out of policy?
There are very serious issues involved in the petition before SC, including whether the Aadhaar Act could have been passed as a money bill.
It is useful to recap what happened.The case came before a three-judge bench in August 2015. The court granted interim relief restricting the use of Aadhaar to two schemes on a voluntary basis. When it went to a five-judge bench in October 2015, the two schemes were expanded to six schemes. On both occasions, the court said it was an important issue and should be heard expeditiously.
In spite of that observation, the matter is not being given priority. In the meantime, the central government started issuing notification upon notification making Aadhaar mandatory for various purposes, in disregard of the interim order. Surprisingly, the Chief Justice of India has made an observation that the non-mandatory nature of Aadhaar extends only to social welfare and benefit schemes, and that it did not apply to other things like verification of income tax returns or registration of mobile numbers. This is completely at odds with the interim order passed by the constitution bench.
Somewhere, priorities are getting lost, and the court is wasting its time in trying to address policy issues, which are clearly not in its domain. This becomes all the more critical when we realise that pendency in SC has crossed 60,000 cases.
CBI probes: House panel slams SC, HCs for monitoring them
The Times of India, Dec 09 2015
House panel slams SC, HCs for monitoring CBI probes
Courts Are Overstepping Their Brief
In a significant remark on the judiciary's intervention in CBI investigations, a parliamentary committee has stated that the Supreme Court and high courts have started performing the functions of the lowest rung of criminal justice system, taking over the role of a magistrate. Asserting that superior courts are working beyond their powers, the parliamentary standing committee on personnel, public grievances, law and justice said, “The superior courts which are courts of appeal under Sec tion 374 of the Code of Criminal Procedure (1973) are even directing CBI in a number of cases to report day-to-day progress in a sealed cover bypassing sections 172 and 173 of the CrPC and performing functions envisaged under the criminal justice system of the country for the lowest rung of criminal courts and also appreciating the evidence which under section 173 of CrPC is required to be done by the magistrate.“
The panel's observations come at a time when most of the big-ticket CBI cases, including 2G spectrum allocation scam, coal block allocation scam, Vyapam scam, Virbhadra Singh corruption probe and ponzi schemes like Saradha, are being either monitored or regularly heard by the Supreme Court and several high courts. In fact, in the 2G and coal scams, the Supreme Court restricted all other courts to entertain any application against orders passed by the trial court.
The committee said, “...various high courts and Supreme Court are frequently issuing directions to the CBI to handle cases relating to Prevention of Corruption Act, 1988, as also of `public order'. As a result, the jurisdiction and powers of the CBI have widened and deepened and have far exceeded than what was contemplated under the Delhi Special Police Act, 1946.“
The committee, headed by E M Sudarsana Natchiappan, points to “judicial activism of higher judiciary by taking pains of overseeing an investigation and passing interim directions to the CBI and even preempting the rights and remedies available to affected persons under criminal justice system. It may , therefore, appear to affected persons as a pre-emptive and colourable exercise of power by the superior courts“.
Key rulings, year-wise
The Times of India Jan 01 2016
Amit Anand Choudhary
Women's Rights Too Hogged Limelight In SC
In the year gone by , the Supreme Court constitutionally spurned the historic offer from Parliament to throw light on one of its darkest alleys -the road to appoint judges. Parliament enacted National Judicial Appointments Commission (NJAC) to bring in transparency in the process of appointment of judges in the apex court and high courts. But, the SC strangely put its vote on the opaque collegium system of judges selecting judges.
The overwhelming public support for NJAC -the unanimous decision of Parliament and its ratification by 20 states -could not persuade the SC, which said independence of judiciary could be in danger if the Executive, the largest litigant, participated in selection of judges. But, the court was quite alive to the concerns of the public when it came to deciding the validity of Section 66A of Information Technology Act.
It had no reservation in scrapping the law saying it impeded the citizens' right to freedom of speech and expression.
The SC also saw through the politics behind the UPA 's decision ahead of the 2014 general elections to grant OBC status to Jats, seen as a prosperous community . The NDA too attempted to woo the Jats by defending the UPA decision. But, the SC minced no words and called the decision to give quota to Jats in jobs and admissions to educational institutions a `negative and retrograde' step.
Irrespective of the political party in power, there has always been a tendency to project their top leaders in government advertisements with taxpayers' money . The SC put an end to it by ruling that no politician's face, except that of President and the Prime Minister, can be put in government advertisements.The chief ministers were the worst hit by this decision and many states have approached the SC to permit the photos of CMs to be displayed in government advertisements.
One may not need any educational qualification to become an MP or MLA. But in a significant decision, the SC upheld the Haryana government's law laying down educational criteria for panchayat polls.
The SC virtually brought down the curtains on the long political career of former Haryana CM Om Prakash Chautala by upholding his conviction and 10-year jail term in teachers' recruitment scam case. N Srinivasan, who was at the helm of BCCI was bowled out by the SC which condemned him for failing to maintain purity of the `gentleman's game' by blinking at the maladies like betting and spot-fixing.
The court saw a midnight drama just before the scheduled hanging of Yakub Abdul Razak Memon, the lone condemned prisoner in 1993 serial blasts case of Mumbai. Despite repeatedly rejecting his plea for life sentence, the SC did not hesitate to hear his advocates again when they knocked at its doors in a last gasp attempt.
The court passed a series of orders in 2015 to reinforce the rights of women who are despised by society for living an unconventional life.In a path-breaking verdict, it ruled that an unwed mother must be recognised as a legal guardian of her child and she cannot be forced to reveal the name of the father or seek his consent to get guardianship of the child.
It also held that an unmarried couple, living together as husband and wife, would be presumed to be legally married and the woman would be eligible to inherit the property after the death of her partner. It also held that a woman was entitled to maintenance from her live-in partner.
The court also expressed concern over women being used as surrogate mothers by foreigners and directed the government to ban commercial surrogacy . This prompted the Centre to roll back its 2013 decision allowing import of human embryos for artificial reproduction.
2016: Important judgements
Cloaked constitutionally to do complete justice, the Supreme Court in 2016 played referee in a variety of matches relating to legality of decisions in areas as diverse as politics, cricket, finance and religious practice.
In the political arena, it red carded the Arunachal Pradesh governor for dismissing a Congress government led by Nabam Tuki and ordered its resurrection.
But Congress failed to reap benefits of this landmark decision. Tuki could not reclaim the chief minister's chair. It went to Pema Khandu. Later, Congress legislators under Khandu stormed out of the grand old party to from a new outfit.
Dealing a double blow to the NDA government, the SC also quashed the Centre's decision to dismiss the Congress government in Uttarakhand and impose central rule. The SC restored the Congress government led by Harish Rawat, who had better luck than Tuki.
In cricket, the apex court continued its role as a tough umpire and imposed stringent field restrictions for the management to force them to implement its July 18 verdict to bring transparency and accountability in cricket administration.
The Decision Review System (DRS) did not help.The SC dismissed the BCCI's two petitions seeking review of the reforms judgment, sending a clear signal to the board to fall in line.
New Year could herald more problems as the SC will decide whether to appoint an administrator for BCCI in the first week of January .Not only this, the SC's decision in the contempt of court petition against BCCI president Anurag Thakur will also set a new milestone.
The reforms judgment was based on a report by a committee headed by former CJI R M Lodha and com prising former SC judges Ashok Bhan and R V Raveendran. The court accepted each and every suggestion of the committee for infusing transparency and objectivity in the administration and finances of the board.
In the financial sphere, Prime Minister Narendra Modi's big-ticket decision to rid the country of black money through demonetisation came under the SC scanner through scores of PILs. The court attempted to regulate government action to provide succour to common people facing harassment because of currency crunch.
Though the SC took note of the hardship faced by common people because of demonetisation, it referred to a five-judge bench to determine the constitutional validity and procedural reasonableness of the policy decision.
Public interest figured high on the SC's list of business in 2016, when it passed a slew of directions to reduce pollution. Its interference also forced the Haji Ali dargah management to allow women to enter its inner sanctum, which had remained closed for them since 2012. The court is also dealing with petitions to open the doors of Sabarimala temple in Kerala to women irrespective of their age. At present, women in the menstruating age are barred from entering the temple because of the deity's celibacy.
But 2016 will go down in history as one of those years when the relationship between the judiciary and the executive touched the nadir.CJI TS Thakur slammed the government for sitting over recommendations for appointment of judges to high courts, which fought a monstrous pendency of cases with their backs to the wall as 43% of judges' posts remain vacant.
The government hit back saying the CJI-headed collegium had not been finalising the memorandum of procedure for appointment of judges, which was ordered to be re-framed by a fivejudge SC bench.
Without the new MoP, it would be improper to continue appointment of judges as per the `opaque' system followed by the collegium, the government said and reminded the CJI about the `laxman rekha'. Despite the CJI's criticism, the law minister claimed that the Centre had appointed a record 126 judges to HCs in 2016.
After putting cricket czars in a fix with the bitter dose of reforms, ex-CJI R M Lodha was called upon by the SC to suggest reforms in administration of medical education in the country by scrutinising alleged mismanagement in Medical Council of India. The SC also asked Justice Lodha to supervise the sale of assets of Pearl group and refund Rs 49,000 crore to public who had invested in the firm's illegal collective investment scheme (CIS).
It held that people from the Muslim community could not be allowed to grow beard after joining IAF, saying that discipline, uniformity and cohesiveness in armed forces was too important to be sacrificed for religious belief of its personnel who want to follow the practice which was against rules of a defence force.
The year also kept the SC busy in exploring ways to tackle the pollution crisis in the national capital. It passed a slew of directions including restricting entry of trucks into Delhi and imposing 1% environment cess on diesel SUVs and high-end private cars with engine capacity of 2000cc and above.
The court came to the rescue of several home buyers, harassed by real estate developers not handing over possession of flats on time.The court made it clear to developers that they would have to deliver as per their promise irrespective of whether they “sink or die“.
Attitude, approach and rectitude of a Chief Justice of India brings in marked changes in the core character of the Supreme Court. In 2017, the SC saw three CJIs. But Justice J S Khehar, followed by Justice Dipak Misra, set the ball rolling by taking up for adjudication constitutional issues that were brushed under the carpet for years.
Many constitution benches were set up to deal with pending issues — from validity of Aadhaar which halfway through gave birth to the path-breaking right to privacy as a fundamental right, to tricky issues like misbehaviour of a sitting high court judge.
This made the SC appear truly a constitutional court, a role assigned by the Constitution and envisaged by the framers of the Constitution. The SC, sitting at the top of the three-tier judiciary, had for the last two decades got mired in too many PILs, giving fodder to politicians to slam the judiciary for encroaching into the executive’s domain.
In the 2017 balance sheet, the SC had many positives. To overcome an eight-judge bench decision negating the fundamental nature of right to privacy more than 50 years ago, a nine-judge bench took up the important issue for scrutiny keeping in mind citizens’ vulnerability to present day gadget-encouraged intruding tendencies.
“Right to privacy is an integral part of right to life and personal liberty guaranteed in Article 21 of the Constitution,” the nine-judge bench ruled unanimously while comprehensively rejecting the NDA government’s stand against privacy being conferred the status of fundamental right.
The SC shed its traditional nervousness in dealing with issues having religious overtones to set up a multifaith five-judge bench to examine petitions by Muslim women challenging the legality of triple talaq, a tool used by Muslim men to divorce wives instantaneously.
The bench ruled that triple talaq was arbitrary and violated right to equality guaranteed under Article 14 because it gave Muslim men unilateral right to terminate marriage without any rapprochement. It was a decisive step towards gender equality, which for centuries was strangulated in the
name of religion. The SC ruled that triple talaq was not sanctioned by the Quran and hence not part of Islamic religious practices.
Following the footsteps of the Bombay High Court which threw open the Shani Shingnapur temple to women, the SC helped women gain entry into the sanctum sanctorum of the famous Haji Ali dargah in Mumbai. The SC’s nudge made the Valsad Zoroastrian panchayat permit two Parsi women, forbidden from entering the Tower of Silence because they married outside the community, to enter the premises to perform the last rites of parents.
A bench of top seven SC judges, including the CJI, was constituted to deal with open defiance and derogatory comments of sitting Calcutta HC judge Justice C S Karnan.
Putting a premium on judicial discipline, decorum and dignity, the bench sentenced Justice Karnan to sixmonth imprisonment holding him guilty of contempt. For the first time in the SC’s 67-year history, a sitting judge was jailed. Though embarrassing, it sent a loud message to everyone, both within and outside judiciary, about non-negotiability of rule of law and judicial dignity.
If decisions on right to privacy, triple talaq and Justice Karnan settled raging national debates, the SC’s upholding of a trial court decision to convict and sentence V K Sasikala in a DA case had a tectonic effect on Tamil Nadu politics. Tremors of the verdict continue to smudge the state’s political canvas.
Concerned by alarming levels of pollution, the SC on Diwali-eve banned sale of crackers in Delhi and the National Capital Region. But the decision was hardly a deterrent as pollution refuses to go away.
The Medical Termination of Pregnancy (MTP) Act permitted a woman to terminate a problematic pregnancy or diseased foetus only up to 20 weeks. When the SC on humanitarian considerations allowed a minor to terminate her over 20-week pregnancy, there was a deluge of similar applications.
The SC turned into a window of hope for distressed women with more than 20 week pregnancies to get medical boards’ opinions for safe termination. A pertinent questioned emerged from this exercise — should Parliament amend the law to allow termination of over 20-week pregnancies in exceptional situations?
One cannot end the narrative for the year in the SC without mentioning the medical admission scam that saw a retired HC judge arrested and indicated possible involvement of a sitting Allahabad HC judge. The scam threatened to singe the SC itself with spirited advocates insinuating against the incumbent CJI. Rules were thrown to the winds when advocates decided to pursue PILs on the issue before a particular bench, which obliged.
The crisis made CJI Misra hurriedly constitute a fivejudge bench which ruled that the CJI was the master of the roster and no other judge could decide when and who would hear a petition. The course correction brought a diminishing trust quotient within the SC into the open.
On the administrative side, the CJI instituted an inquiry into complaints against the Allahabad HC judge who had permitted a private medical college, despite complete a ban by the SC, to admit students for the 2017-18 academic year.
Alarming level of vacancies in HC judges has remained stagnant at 40% of sanctioned strength. Nine HCs are without chief justices. The SC has six vacancies. 2018 has to be the year of appointments. The CJI-headed collegium must attempt to fill SC vacancies, followed by appointment of CJs to HCs.
Two years have passed since a constitution bench ordered framing of memorandum of procedure for appointment of judges. Sadly, the law minister and the collegium have not been able to sort out contentious issues. It is time for wise heads, in the government and the judiciary, to resolve this lingering disagreement, which is impacting speedy justice.
Landmark shifts of stance
Case studies, seven
Case studies: Supreme Court’s landmark shifts
The apex court is rightly hailed for its stellar role. But little has been written about its dramatic shifts on a range of key issues. TOI brings you the untold story
Raising a toast for the establishment of the Supreme Court as India turned into a Republic, C K Daphtary, who went on to become the first solicitor general, said in January 1950, “A republic without a pub is a relic!”
Jokes apart, no appraisal of the 60 years of the Indian Republic can ignore the stellar role played by the Supreme Court in maintaining the constitutional scheme of checks and balances. Equally, no appraisal of the Supreme Court can be complete without delving into the vagaries of its rulings, for better or for worse — especially because the shifts in its position have not always been for reasons beyond its control.
This somewhat awkward aspect has however received little attention, perhaps because of the reverence reserved for the higher judiciary. Here is an attempt to focus exclusively on the judicial shifts made by the Supreme Court through the 60 years of its existence on a range of key issues.
Somersault on due process The first major constitutional issue decided by the Supreme Court came out of the preventive detention of communist leader A K Gopalan, in whose honour the headquarters of CPM is named. The issue was whether somebody’s detention could be justified merely on the ground that it had been carried out “according to the procedure established by law,” as stipulated in Article 21 of the Constitution. Or, would that procedure be valid only if it complied with principles of natural justice such as giving a hearing to the affected person?
In the A K Gopalan case of 1950, the Supreme Court, taking a narrow view of Article 21, refused to consider if the procedure established by law suffered from any deficiencies. Fortunately, three decades later, it took a 180 degree turn on this issue in the Maneka Gandhi case of 1978. The provocation was the arbitrary law that had allowed the Janata Party government to take away Maneka’s passport without any remedy. Importing the American concept of due process, the Supreme Court ruled that the procedure established by law for depriving somebody of their life or personal liberty had to be “just, fair and reasonable”.
Reduction of Parliament’s power to amend the Constitution
Validity of the very first constitutional amendment was challenged mainly because it had inserted the Ninth Schedule to insulate agrarian laws from being tested in courts. The issue facing the Supreme Court was to determine the extent to which Parliament could go while exercising its amending power under Article 368. This is how SC shifted its position more than once on this crucial issue.
First, in the Shankari Prasad case of 1951, it ruled that since no limits had been spelt out in Article 368, the power to amend the Constitution included abridgement of even fundamental rights.
Next, in the Golaknath case of 1967, it betrayed second thoughts on trusting Parliament with such unfettered discretion under Article 368. Since Article 13 stipulated that every law enacted by Parliament had to comply with fundamental rights, the Supreme Court read that limitation into constitutional amendments as well.
Finally, in the Kesavananda Bharati case of 1973, the SC held that the condition prescribed by Article 13 of complying with fundamental rights applied only to ordinary laws, not constitutional amendments. Taking the middle path, it said the only limitation on Article 368 was that a constitutional amendment could not alter the “basic structure” of the Constitution (such as the sovereignty of the country or its secular character).
Enlarging the scope of judicial review
For decades, the most abused provision of the Constitution was the sweeping power conferred on the President — in other words, the Central government — to dismiss a duly elected state government. The validity of actions taken under Article 356 of the Constitution went before the Supreme Court for the first time in 1977 when the then newly elected Janata Party government at the Centre had dismissedCongress governments in states for no reason other than the fact that it wanted to hold early elections.
But the Supreme Court, in what is known as the State of Rajasthan case of 1977, declined to intervene, ostensibly to avoid entering the political thicket. The President’s satisfaction that the state concerned could not be carried on in accordance with the provisions of the Constitution was, it said, not subject to judicial review. The apex court however reversed its stand in the S R Bommai case of 1994, where it held that a proclamation under Article 356 could be struck down if it was “found to be mala fide or based on wholly irrelevant or extraneous grounds”. Subjecting the President’s satisfaction to judicial review, the Bommai verdict clarified that the power conferred by Article 356 was a conditional one, not absolute.
Changing conception of compensation
Many a legal battle has been fought on the vexed issue of compensation payable to affected parties when a property has been acquired by the government. The question of interpreting the compensation promised by the Constitution arose for the first time in the Bela Banerjee case of 1954 involving a West Bengal law which sought to pay off the owners on the basis of the market value of their land on some distant date in the past. Rejecting the socialistic arguments of the state, SC laid down that the compensation should be “a just equivalent of what the owner has been deprived of”.
In a bid to get over the effect of the Bela Banerjee case, the Nehru government amended the Constitution stipulating that no law dealing with the manner in which compensation was to be given “shall be called in question in any court on the ground that the compensation by that law is not adequate”. This in turn triggered a chain of a vacillating judgments and another constitutional amendment on the compensation issue. It culminated in the shift from the categorical “just equivalent” in the Bela Banerjee case to a limp admission in the Kesavandanda Bharati case of 1973 that the amount need not be equivalent, so long as it was “not illusory”.
Diversity on quotas
Caste-based reservations in jobs and educational institutions are another contentious issue on which the Supreme Court has had to change its position in keeping with the times. Its initial response was completely adverse. In the Champakam Dorairajan case of 1951, the Supreme Court slammed caste-based reservations as a violation of the Constitutional prohibition of discrimination. It was however forced to take a more accommodative view of social justice once the Nehru government responded with the first constitutional amendment stipulating that the general prohibition of discrimination could not prevent the state from making any special provision for the advancement of SCs, STs and OBCs.
Having reconciled to the imperative of quota, the Supreme Court, in the M R Balaji case of 1963, imposed a cap of 50% on the extent of reservations for all the categories taken together, in a bid to ensure that the exception did not exceed the general rule of non-discrimination. Following the Mandal controversy, the Supreme Court, in the Indra Sawhney case of 1993, upheld the introduction of quota for OBCs in Central government jobs subject to the exclusion of the “creamy layer” (candidates whose parents are relatively wealthy or better educated).
Seasonal change on economic policy
True to its reputation of giving precedence to individual liberty over socialistic schemes, the Supreme Court, in the Bank Nationalization case of 1970, displayed no inhibition in probing the allegations that the Indira Gandhi’s government’s economic policy was discriminatory and deficient on compensation. As a corollary, it even struck down the nationalisation law.
But post-liberalisation, the SC, in the Balco case of 2001, upheld the Vajpayee government’s disinvestment policy by adopting the principle that “in the case of a policy decision on economic matters, the courts should be very circumspect in conducting any inquiry and must be most reluctant to impugn the judgment of the experts.”
Turning consultation into concurrence
This shift has earned the Supreme Court the opprobrium of turning the judiciary into a “self-perpetuating oligarchy”. For, all that the Constitution has prescribed in the appointment of judges to the Supreme Court is that the Chief Justice of India “shall always be consulted”.
`Freedom fighters' (false ones) granted pension
Strange are the ways of the Supreme Court in dispensing justice. On the one hand, it ordered inquiry into alleged forging of freedom fighter certificates to claim pension and on the other, when the pensions were cancelled, it restored them on humanitarian grounds.
In August 2005, the SC had appointed the Justice A B Palkar Commission to examine the case of a large number of people claiming pension as freedom fighters by allegedly forging certificates in Beed district. It had said those falsely claiming to have participated in the freedom struggle should be dealt with sternly as they were “traitors“. It had directed the Palkar panel to complete the inquiry into claims of 354 people for freedom fighter pension and submit a report to the Maharashtra government.The panel had rejected the claims of 298 of 354 people and termed their documents “bogus“.
When the state govern ment cancelled their pensions relying on the Palkar commission report, the elderly people moved the Bombay HC and pleaded, “We are all senior citizens. At this ripe age, if we are deprived of pensionary benefits, we will not be in a position to eke out a livelihood.“ Given the SC's stern mandate in 2005 to separate the genuine freedom figh ters from the impersonators, the HC refused to give relief.
They made a final dash to the SC and pleaded before a bench of Justices Kurian Joseph and R F Nariman that withdrawal of pensions would mean starvation. The Justice Joseph-headed bench was caught in a situation where being legally correct would mean starvation for the petitioners.
What came to the bench's rescue was a 2013 judgment of the apex court which had dealt with similar pleas. It had said, “In our opinion, keeping in view the fact that at this old age, if small benefit that was already granted to them is withdrawn, it may be difficult for them to sustain themselves. In that vi ew of the matter, in the peculiar facts and circumstances of the case, we set aside the order of the Bombay HC.“ However, the court had said pensions would stop with the death of the false freedom fighters.
Justices Joseph and Nariman were quick to adopt the same stand. They said, “We find force in the submissions made by the counsel for Maharashtra that in many of these cases, the appellants have actually not participated in any freedom struggle. However, taking note of the only fact that these cases arise out of the same batch of appeals, we feel that it may not be proper to take a different view (than that taken in 2013).“
Medical colleges: Vacant super-specialty seats courses
Eyebrows are being raised about a possible breach in judicial discipline after a two-judge Supreme Court bench ordered filling up of 553 vacant seats in super-specialty courses in medical colleges just two days after a three-judge bench rejected such a plea.
On an application filed by Kerala Christian Professional College Management Federation in the pending petition of Dr Himank Goyal, a bench of Justices Adarsh Kumar Goel and U U Lalit directed on October 11: “For the remaining 553 unfilled super-specialty seats lying vacant, the DGHS may hold a mop-up counselling in an endeavour to fill up such seats within a period of 10 days.“ Those offered seats through this mop-up counselling were asked by the bench to join within four days. Just two days before this, on October 9, a PIL by `Education Promotion Society of India' had sought permission from a bench of CJI Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud to fill up vacant superspecialty course seats. The bench dismissed the petition.
It could not have passed an order different from its September 22 one when it turned down pleas to extend the deadline for filling vacant seats.
On September 22, a bunch of applications by various medical colleges, including the one by Dr Himank Goyal, came up for hearing before the threejudge bench headed by the CJI.
The bench said, “There was an echo of concern that seats are going vacant and, therefore, there is necessity ... to extend the date. If we permit ourselves to say so, the concern travels from rational to emotional sphere.“
However, Medical Council of India counsel Gaurav Sharma opposed vehemently and said the SC had extended the time till September 14 and if students did not avail of the opportunity , “it would be anathema to the concept of law to grant extension at the behest of institutions or the students“.
Sharma said, “Mainte nance of discipline is of transcendental significance in the sphere of admission to medical colleges.“
He said granting fur ther extension would usher chaos as stu dents who were not eligible or defaulted would gain admission. The threejudge bench said, “A sense of concern is one thing, but sustenance of discipline and order is another aspect. Weighing both the concepts in a balanced manner, we unhesitatingly come to the conclusion that the prayers made in the applications do not deserve any acceptance and stand rejected.“
A fortnight later, an identical request for filling up superspecialty seats in medical colleges was allowed by a twojudge bench, which, in its order, did not refer to the threejudge bench's orders.
Political fallout taken into consideration
When Supreme Court considered the political fallout of its verdict
Dhananjay Mahapatra The Times of India Jan 07 2015
The political fallout of a judicial decision has seldom bothered the judiciary, but it appears that in 2012 the Supreme Court delayed the judgment on the CBI's probe into disproportionate assets cases against the Samajwadi Party chief and his sons to await completion of assembly elections.
On March 1, 2007, just before the assembly elections, an SC bench headed by Justice A R Lakshmanan had ordered the CBI to probe into alleged disproportionate assets of Mulayam Singh Yadav and his sons on a PIL filed by Vishwanath Chatur-vedi. Justice Lakshmanan retired on March 21, 2007 and was immediately appointed as chair man of the Law Commission.
Yadavs filed petitions seeking review of the March 1, 2007 judgment questioning the jurisdiction of the SC to order CBI probe without the consent of the state government on a politically motivated petition.The review petitions were heard by a bench of Justices Altamas Kabir and H L Dattu, which reserved its judgment on February 17, 2011.
Internal communication between Justice Kabir and Justice Dattu, accessed by TOI, shows, among other things, the ground for delay in pronouncing the judgment was the possible political fal lout of its decision in this case.
In June 2012, Justice Kabir wrote to Justice Dattu: “I deliberately waited till after the UP elections to pronounce the judgment so that the level playing field was not disturbed.“ The UP Assembly elections were held between February 8, 2012 and March 3, 2012. SP swept the polls and Akhilesh Yadav became the chief minister.
Just days before the verdict on December 13, 2012, Justice Kabir sent the draft judgment to Justice Dattu for his approval. In the note attached to the draft judgment, Justice Kabir had referred to the CBI's flip-flops in the case and said, “This dual stand in the submissions of the highest investigating agency cannot be appreciated by this court.“
Justice Dattu agreed with Justice Kabir, who had by then become the Chief Justice of India, that the CBI stand had been confusing.However, he clarified that “while making submissions (on behalf of the CBI) it has been highlighted that substantial prima-facie elements are there to conduct an investigation“.
He also felt that there was no substantial evidence against Dimple Yadav and no further investigation needed to be carried out against her.But Justice Dattu was firm against quashing the entire proceedings regarding disproportionate assets. Justice Dattu wrote back: “As discussed with you, quashing of the entire proceedings regarding disproportionate assets, which is evident on the face of records, will not only be doing injustice but also create a political turbulence. We are directing only CBI probeinvestigation and not holding them guilty . If nothing is found, they are acquitted. But in fitness of things a thorough investigation is needed.“
The judgment on the review petitions was pronounced on December 13, 2012. The court held that the CBI probe into alleged disproportionate assets of Mulayam, Akhilesh, and Prateek Yadav as ordered by the SC on March 1, 2007 was justified.
Vyapam-Tainted Doctors: Conflict Over their Fate
A three-judge bench of the Supreme Court headed by Justice J S Khehar on Tuesday got some constitutional and legal lessons from a two-judge bench headed by Justice J Chelameswar.
The bench headed by Justice Khehar, who will become Chief Justice of India next year, was tasked with finding a solution to the conflict of opinion in a judgment rendered by the bench of Justices Chelameswar and A M Sapre in a case relating to punishment for those whose MBBS degrees were tainted by the Vyapam scam.
Justices Chelameswar and Sapre had found instances of undeserving candidates taking advantage of irregularities in entrance examinations to bag MBBS seats.Justice Chelameswar had said they should be asked to render charitable healthcare for a certain period to retain their MBBS degrees. But Justice Sapre had said these degrees should be cancelled.
The bench headed by Justice Khehar had asked whether the matter needed to be heard afresh to resolve the conflict of opinion and sought an answer from Justices Chelameswar and Sapre.
The miffed two-judge bench on Tuesday did not read out the judgment and merely signed it, departing from the usual practice where judges read out the operative portion of the verdict.
It said, “We completely fail to understand the reference made to Article 145(5) of the Constitution in the July 28, 2016 order (of the three-judge bench).“ Article 145(5) provides that the court should not pronounce a judgment without the concurrence of a majority of the judges on the bench which heard the case. However, it also says this would not prevent a judge from delivering a dissent judgment or opinion. Justices Chelameswar and Sapre said, “We are of the opinion that neither the Constitution of India nor any other law of this country provides an intra-court appeal insofar as the Supreme Court is concerned. A rehearing of the entire matter as apparently suggested by the larger bench, in our opinion, would amount to an intra-court appeal.“
As a final message to the three-judge bench which appeared to have a touch of judicial sarcasm, the two-judge bench said, “If the larger bench of this court wishes to create an intra-court appeal, we obviously are powerless to stop it. We can only record our understanding of the law on the question and it is as recorded above.“
3-judge bench overrules 3-judge 2014 land acquisition judgment
The Supreme Court appeared to have tied itself in knots on Wednesday, with a three-judge bench questioning the judicial propriety and discipline of another three-judge bench, which had on February 8 overturned yet another three-judge bench’s 2014 judgment on land acquisition.
The subject matter was important as it involved the acquisition of land and payment of compensation to land-owners, mainly farmers. But the two-hour-long proceedings before a bench of Justices Madan B Lokur, Kurian Joseph and Deepak Gupta brought back flashes of the smouldering discontent among the four most senior judges which had erupted in an unprecedented press conference on January 12.
SC asks HCs not to pass any order on land acquisition
What the bench of Justices Lokur, Joseph and Gupta questioned on Wednesday was the judgment by a three-judge bench headed by Justice Arun Mishra terming a 2014 “Pune Municipal Corporation” judgment by a bench of identical strength as “per incurium” (decision rendered without taking care of facts and law). Interestingly, the Pune Municipal Corporation judgment was rendered on January 24, 2014 by a bench of Justices R M Lodha, Lokur and Joseph.
The Justice Lokur-headed bench, in an interim order, asked high courts not to pass any order on pending land acquisition issues, thus stalling implementation of the February 8 judgment. It also requested other benches of the apex court to defer hearing on petitions on this issue.
Former attorney-general Mukul Rohatgi provided the spark that reignited the “discipline” and “propriety” issue that has hurt unity among SC judges. Rohatgi said propriety demanded that the three-judge bench, if it did not agree with the earlier three-judge bench decision, send the issue for consideration before a larger bench. He said what was worse was that the same bench had been disposing of scores of cases based on the ruling given by it on February 8 in complete disregard of the farmers’ interest.
Justice Joseph poured out his “painful concern” and said, “The Supreme Court operates on a system and principle which are holy. If you start tinkering with it, what will happen? Everyone must think about it — both judges and lawyers. We will go one day but the institution must go on forever. There is a method and procedure to be followed. If the Supreme Court has to be one, it has to be made one. To make it one, you need judicial discipline. “The Supreme Court is one and must not speak in 14 voices (indicating that the existing 14 benches must not speak differently on the judicial side). It is not good for the institution.” Rohatgi recounted the right to privacy issue and said as attorney-general, he had argued before a five-judge bench that it could not decide the issue as an eight-judge bench had earlier ruled that privacy was not a fundamental right. “Overnight, a nine-judge bench was set up by the CJI which overruled the eight-judge bench decision. That is the procedure and discipline,” he said to rub it in.
Senior advocate P S Patwalia, appearing for Haryana, defended the recent ruling of the Justice Arun Mishra-headed bench and said the law’s misuse was stopped by this judgment and Justice Joseph’s views were rather strong. Justice Joseph clarified, “It is not strong views but my painful concern. If one bench of the SC wants to correct an earlier ruling by another bench of identical strength, then there is a process to do it.” Rohatgi chipped in and said if the Pune Municipal Corporation judgment required to be reconsidered, the correct procedure would have been to refer it to a five-judge bench.
The Supreme Court operates on a system and principles which are holy. If you start tinkering with it, what will happen?
Referral: 2-Judge Bench Pre-Empts 3-Judge Bench
2-Judge Bench Pre-Empts 3-Judge One From Passing Order For Referral
The knotty issue of ‘judicial discipline and propriety’ in contradictory judgments on land acquisition being tossed between two threejudge benches of the Supreme Court got further complicated on Thursday with two two-judge benches referring the matter to Chief Justice of India Dipak Misra for resolution by a larger bench.
A threejudge bench headed by Justice Madan B Lokur had taken umbrage to a three-judge bench headed by Justice Arun Mishra on February 8 overruling a 2014 verdict given by another three-judge bench in the ‘Pune Municipal Corporation’ case, terming the earlier judgment as “per incurium”. Both the cases concerned land acquisition.
Upon being told by senior advocate Mukul Rohatgi about the February 8 verdict, the bench led by Justice Lokur and comprising Justices Kurian Joseph and Deepak Gupta viewed it as breach of “judicial discipline and propriety”.
Justices Lokur and Joseph, two of the four seniormost judges of the SC, were co-authors of the ‘Pune Municipal Corporation’ verdict.
In an interim order, the Justice Lokur-headed bench requested other SC benches and high courts not to take up matters related to land acquisition dealt in the two contradictory judgments. It said it would decide the future course of action — whether to refer the matter to a larger bench.
On Thursday, a land acquisition case was listed before a bench of Justices Arun Mishra and Amitava Roy and the threejudge bench’s interim order was brought to its notice.
While stating that Wednesday’s interim order was a “sort of moral injunction” on them, Justice Mishra, who headed the three-judge bench that overruled the 2014 judgment, addressed the issue frontally and squarely. “We had taken a definite view that the 2014 judgment was ‘per incurium’ and it was permissible in law to take that view. We had pondered (while writing the February 8 judgment) over the issue — whether the matter required to be referred to a larger bench given the three-judge bench’s 2014 judgment, and then took a conscious decision (to term it ‘per incurium’ and overrule it). Whether it amounts to judicial discipline, or not, is for the larger bench to decide,” he said.
Justices Mishra and Roy referred the matter to the CJI for adjudication by a larger bench, which most probably will be a five-judge bench. By this order, the Justice Mishra-led bench pre-empted the three-judge bench headed by Justice Lokur from passing order for referral to a larger bench.
Justice Mishra said, “We have taken a considered view (in the February 8 judgment). It is over 200 pages. Probably, no one has read it but it (the judgment) has been targeted. First read and then analyse. ‘Judicial discipline’ has become a magic word to target us.”
In another twist to fast-paced events in the SC, another two-judge bench of Justices Adarsh Goel and U U Lalit too rescheduled a land acquisition case on Thursday when it was informed by Rohatgi about Wednesday’s interim order by Justice Lokur’s bench.
The bench ordered, “We are of the view that having with regard to the nature of the issues involved in the matter, the issues need to be resolved by a larger bench at the earliest. These matters may be placed before the appropriate bench on February 23 as per orders of the CJI.”
2019: A denigration of the judiciary
Ringing the alarm bell, the Supreme Court said in a hard-hitting judgment that it was becoming increasingly difficult for judges to render justice in a fair, impartial and fearless manner because of insinuations made by advocates in cases of political importance.
“Whenever any political matter comes to court and is decided, either way, political insinuations are attributed by unscrupulous persons/ advocates. Such acts are nothing but an act of denigrating the judiciary itself and destroys the faith of the common man which he reposes in the judicial system,” a bench of Justices Arun Mishra and Vineet Saran said in its 75-page judgment.
Taking note of the tendency among some advocates to rush to the media from courtrooms, the bench said “hunger for cheap publicity is increasing” and termed it as anathema to the standards of the noble profession. “Statutory rules prohibit advocates from advertising and cater to press/media,” it said, adding it had become common to dish out “distorted versions of court proceedings”.
Cases cannot decided by media trial, says apex court
This had a chilling effect on judges who could not go to the media with their point of view, the bench said. “It is making it more difficult to render justice in a fair, impartial and fearless manner,” the bench said and complained that making public accusations against judges was a tactic adopted by unscrupulous elements to “influence the judgment and even to deny justice with ulterior motives”.
In the last year, apex court judges have faced a lot of insinuations from activist lawyers while dealing with politically sensitive matters — plea of Muslim parties for reference of Ayodhya land dispute to a five-judge bench, petition seeking quashing of UAPA charges against social activists including Sudha Bharadwaj and Gautam Navlakha, plea for SIT probe into judicial officer B H Loya’s alleged suspicious death, PILs for probe into Rafale jet purchase and petitions challenging the Centre’s decision to divest then CBI director Alok Verma of his powers.
“Something has to be done by all concerned to revamp the image of the bar,” the SC said. Writing the judgment for the bench, Justice Mishra said, “It is impermissible to malign
the system itself by attributing political motives and false allegations against the judicial system and its functionaries. Judges who are attacked are not supposed to go to the press or media to ventilate their point of view.”
Taking note of hype created in media by certain advocates in matters of political importance, the SC said, “Cases cannot be decided by media trial... No outside interference is permissible. A lot of sacrifices are made to serve the judiciary for which one cannot regret as it is with a purpose and to serve judiciary is not less than the call of military service.
“For the protection of democratic values and to ensure that rule of law prevails in the country, no one can be permitted to destroy the independence of the system from within or outside... Let each of us ensure our own institution is not jeopardised by the blame game and make an endeavour to improve upon its own functioning and independence.”
The SC was testing the validity of the rule framed by Madras high court empowering it to debar an advocate to control situations which arose in the past, including shouting of slogans, using foul language against judges and vandalism. Though anguished by past conduct of lawyers in the HC, it struck down the rule and said the HC could not usurp disciplinary powers vested in bar councils.
'Listings'/ listing of cases
2019/ Some listings were ‘fixed’: probe
Former Supreme Court judge A K Patnaik has completed his inquiry into allegations that middlemen and fixers, in collusion with dismissed and disgruntled SC employees, routinely attempted to manipulate listing of matters in the SC registry for hearing before benches desired by litigants and lawyers.
Justice Patnaik had taken help from the CBI, Intelligence Bureau and Delhi Police to probe several specific allegations of cases getting listed before a desired bench and sources said at the end of the inquiry, some instances were found to be true.
On being contacted by TOI, Justice Patnaik said, “I have completed the inquiry assigned to me by the Supreme Court. Writing of the report will take at least four weeks. I expect to submit the report to the SC either by the end of August or by September first week.”
Have found out the truth, says Justice Patnaik on fixing inquiry
However, Justice Patnaik declined to comment on the findings of the inquiry. When reminded that on April 27 he had told TOI that he “will find the truth”, Justice Patnaik said, “That is precisely what I have achieved.” A bench of Justices Arun Mishra and R F Nariman had on April 25 asked Justice Patnaik to probe the allegations made by advocate Utsav Bains.
“I will find the truth and get to the bottom of the allegations. If the allegations prove to be correct, the culprits will be brought to book,” Justice Patnaik had told TOI. “My experience as a judge of constitutional courts for over 20 years and the same number of years as an advocate will come in handy in dealing with the issue at hand,” he had said.
In 2013, a bench led by Patnaik had attempted to strike down a provision of the Representation of the People Act that allowed convicted MPs and MLAs to continue as legislators by merely filing an appeal in a higher court within 90 days of a court convicting them.
Justice Patnaik had firsthand experience in dealing with the case relating to BCCI, in which a bench led by him had laid the foundation for effecting structural changes in the cricket board to make its functioning more transparent and rid it of fixers. “The experience in handling the BCCI case will surely come in handy while firming up the rough plan of action for probing the allegations,” Patnaik had said.
CJI Gogoi: Tried to reform listings system, but failed
Something Is Fundamentally Wrong: Gogoi
Exasperated by the daily long queue of lawyers seeking early listing of cases, Chief Justice of India Ranjan Gogoi said despite many steps taken by him to streamline listing of cases so that advocates don’t have to stand in queue to mention, the system just refused to change.
“Every day, a sea of lawyers stands in queue to seek listing of their cases. Something is fundamentally wrong, I have not been able to change the system despite best efforts,” he admitted. He said every day 600 fresh cases were filed in Punjab & Haryana HC and these got listed for hearing the very next day. “In the SC, nearly 1,000 fresh cases are filed daily but these do not get listed for a week or so,” he said.
The judges’ strength in SC is 31, including the CJI, and it has a pendency of 59,000 cases, of which 40,000 are after-notice cases which roughly amount to 1,300 per judge. When they sit in twojudge benches — the normal practice — the pendency for benches increases to 2,600 cases. The Punjab & Haryana HC is functioning with a strength of 50 and has a pendency of over 3 lakh cases.
Top advocate mentions irregularities in listing of high-stake cases/ 2019
Senior advocate and former Supreme Court Bar Association president Dushyant Dave has written a letter to Chief Justice Ranjan Gogoi, alleging serious irregularities in listing of some cases before a vacation bench which passed orders in favour of a corporate house and sought his intervention for corrective measures.
The senior advocate alleged that two cases of very high-stake matters relating to a corporate house were listed before a vacation bench headed by Justice Arun Mishra in violation of procedures. He said orders were passed in those cases despite objections from the lawyers appearing for opposite parties.
Dave in his letter also clarified that he had been appearing for the corporate house over the years in various cases in SC and HCs. He reminded that the present CJI along with four senior most judges had held a press conference in January 2018 against the then CJI Dipak Misra and raised concerns over allotment of sensitive cases before some particular benches but said the situation has since worsened.
“Unfortunately, far from improved administration in the SC, situation has worsened. Cases having far-reaching consequences for the nation and the institution and cases involving political overtones, have been systematically assigned to the benches of ‘preference’...,” the letter said.
“Both the matters were listed, taken up and heard without any justification and in hurry and in improper manner. As a result, it has caused immense damage to the image of SC and administration of justice...,” the letter said.
Difficulty of being CJI in the shadow of politics over removal
Dhananjay.Mahapatra 02 April 2018 The Times of India
Renowned lawyer and senior Congress MP Kapil Sibal [in March 2018] accused the NDA government of “continuously assaulting the judiciary” while echoing Justice Jasti Chelameswar’s view that the Centre was “putting collegium recommendations on the back burner if the names are not to its liking”.
Sibal was quoted as saying in a media report, “They have first filled educational institutions with R S S pracharaks. Now, they are trying to infiltrate the judiciary with people having such mindset.”
A few weeks ago, Sibal had retorted to CJI Dipak Misra’s courtroom comment that he must read history by saying he was both a student and teacher of history. Sibal is well versed in the judiciary’s history too, we are sure. Probably, he needs to refresh his memory, especially because he is among the few in Congress strenuously pushing for moving a removal motion against CJI Misra in Parliament.
The January 12 press conference by senior SC judges led by Justice Chelameswar against the CJI had attracted magnetic support from Left leaders friendly to a rebel judge. The Congress, in the process of replacing old warhorses with prime stallions to keep the party chariot competitive for the derby of general elections, decided to cash in on the situation as many important cases, including politically usable Ayodhya and death of judge B H Loya, were being heard by a CJI-led bench.
Some Congress lawyer-MPs saw the opportunity to hit hard with a removal motion as the judiciary was red hot with an internal dissension fuelled by one person’s insatiable desire to wreak vengeance because he could not become CJI. Personal ambitions surely cause disturbances in the normal functioning of a system, be it judiciary or politics. And we surely don’t deny what Justice Chelameswar said in his March 21 letter, quoting Robert H Jackson, that “men are more often bribed by their loyalties and ambitions than by money”.
Attempts are on to get the draft motion signed by 50 Rajya Sabha MPs, the number required for moving it in Parliament. Before we refer to pages of judicial history to understand Sibal’s comment that the NDA government is trying to fill judiciary with “such mindset”, a discussion on the fallout of a removal motion against the CJI will help understand the gravity of the situation.
Today, the Congress with 54 MPs in RS may well be able to bring a removal motion against the CJI, howsoever frivolous or imaginary the charges may be. Tomorrow, the NDA, which too has more than 50 MPs in RS, could cook up some charge to bring a removal motion against the No.2 in the SC. Another party can start a campaign for a removal motion against the third in the SC hierarchy.
Where will it end? Which judge will willingly become CJI in such a dreadful scenario and risk his dignity and reputation? Worse, will this kind of political one-upmanship not force a judge to ensure political support before becoming CJI to counter threats of removal?
Bringing a removal motion against a CJI or a judge based on unverified charges has a numbing effect on the institution and stunts public faith in it. Lawyers become MPs not because they are great politicians. Success in court brings them money and fame, accelerating their rise in political parties. When they attempt to cow down the judiciary by casting a shadow through a phantom removal motion, it is akin to an assault on the very tree that nurtured their growth.
Unlike today’s Congress, led by a youthful president Rahul Gandhi, the party split in 1969 after a bitter war between veterans on one side and the young Turks on the other led by Indira Gandhi. The split reduced her government to a minority, but she continued as PM with support from Left parties. The landmark SC decision in Golaknath case in 1967 curtailing Congress government’s power to amend the Constitution and the political red nose caused by the 1970 Privy Purses judgment forced Indira to call mid-term polls.
A heady 352 seats in Lok Sabha in 1971 strengthened her resolve to infiltrate the SC with “committed judges”. The task was meticulously carried out by law minister H R Gokhale, the Bombay HC judge turned politician; steel and mines minister S Mohan Kumaramangalam, a barrister and earlier a prominent communist leader; and S S Ray, another barrister and a close confidant of Indira.
To overrule an 11-judge bench decision in the Golaknath case, the SC decided to set up a 13-judge bench for Kesavananda Bharati case. Eight SC judges were appointed just before the hearing in Kesavananda case began to ensure most of them found place in the 13-judge bench for a favourable ruling.
Justice P Jaganmohan Reddy in his book ‘We Have Republic’ wrote, “Of these eight, two were said to be Gokhale’s nominees (D G Palekar and Y V Chandrachud of Bombay HC); one of Kumaramangalam (K K Mathew of Kerala); two of Ray (S C Roy and A K Mukherjea) and two from the PM (M H Beg and S N Dwivedi); only one was CJI S M Sikri’s nominee (H R Khanna). One died before the case was heard. Of the seven who heard the case, five upheld the government’s point of view.
A legendary researcher on SC judges, George H Gadbois, wrote, “Seven of the nine Sikri era appointees were members of the Kesavananda bench, and five of these did support what can be considered the government’s wishes. But they were in the minority with A N Ray. Khanna, who cast the deciding vote, and Mukherjea joined the five pre-Sikri era court appointees in the majority.”
The 7-6 majority carved out the basic structure doctrine while fortifying and reinforcing Golaknath judgment much to the chagrin of Indira, whose government wreaked vengeance a day after the Kesavananda judgment was delivered on April 23, 1973, by announcing that A N Ray, fourth senior most SC judge, would be the new CJI to supersede K S Hegde, J M Shelat and A N Grover. The three resigned. The judiciary was to endure many painful wounds inflicted by Congress governments in the succeeding years. We will narrate those some other time. The above example is meant to refresh Sibal’s memory about “assault on judiciary”.
As a celebrated lawyer, Sibal should discharge his debt for the fame he has earned through the judiciary. He has ability, knowledge and craftsmanship to differentiate himself from hawkish politicians, whose feathers resemble those of Gokhale, Kumaramangalam and Ray. The choice is his.
Preferential listing of star lawyers’ cases
Not done for Ram Jethmalani/ Ansal
Star lawyers getting preferential listing of cases of rich and famous clients in the Supreme Court is a trend that could be reversed under the new Chief Justice of India J S Khehar (in pic), as renowned lawyer Ram Jethmalani found out.
In the past, engaging top lawyers to steal a march over others in getting cases listed for early hearing usually worked, with previous CJIs acting in deference to the stature of the lawyers.
Khehar, however, has emphasised procedural equality since taking over. Time and again, he has told lawyers requesting early hea ring that their clients would not be permit ted to jump the queue.
Friday provided more evidence of this when Jethmalani, appearing for Gopal Ansal (convicted in the Uphaar case), requested urgent listing of the tycoon's application seeking reduction of the jail term awarded to him. The court also rejected Ansal's plea for exten sion of his surrender deadline of March 9 to serve the remaining part of his one-year sentence.
Jethmalani had sought urgent listing of Gopal's plea seeking parity in sentence with his elder brother Sushil Ansal, who was let off by the court on February 9 saying the sentence already undergone by him was adequate punishment keeping in view his age and ailments. Jethmalani had said Gopal too was old and suffered age-related ailments and, hence, was entitled to parity in sentence. The CJI had said the application would be listed on Friday if the SC registry found no objection. But the registry did find objections and the matter was not listed on Friday .
Jethmalani complained about it to the CJI on Friday and sought urgent listing and said the court should extend the surrender deadline in the alternative. Justice Khehar firmly told Jethmalani that there was a procedure for everyone to follow. “If the registry has found objections and refused to list the matter, Jethmalani's client can appeal against the registry's order,“ the CJI said and refused to bestow any preferential treatment to the noted lawyer.
Punishment, quantum of
Three tests to be applied
Holding that punishment should be proportional to the seriousness of an offence and accused should not be let off lightly, the Supreme Court has expressed concern over the “cavalier manner” in which high courts and trial courts award insufficient or wrong sentence in some criminal cases.
A bench of Justices N V Ramana, M M Shantanagoudar and Ajay Rastogi said the courts should not lose sight of three tests — crime test, criminal test and comparative proportionality test — while deciding on quantum of sentence as accused getting away with lesser punishment would have adverse impact on society and justice system. It said a large number of cases are being filed before Supreme Court due to insufficient or wrong sentencing by the courts which must be rectified.
“We have time and again cautioned against the cavalier manner in which sentencing is dealt in certain cases. There is no gainsaying that the aspect of sentencing should not be taken for granted, as this part of criminal justice system has determinative impact on society. In light of the same, we are of the opinion that we need to provide further clarity on the same,” Justice Ramana, who wrote the judgment for the bench, said.
Explaining the three tests principle to be adhered to by all courts, Justice Ramana said, “Sentencing for crimes has to be analysed on the touch stone of three tests viz., crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defence, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list).”
The court delivered the verdict while setting aside a Madhya Pradesh HC order which had reduced the sentence of four persons to four days of imprisonment already undergone by them for causing grievous injury by attacking a group of people with sticks and axes. It said the HC reduced the sentence of three years imprisonment awarded by a trial court without analysis the facts of the case, the nature of the injuries caused and the weapons used.
The bench enhanced the sentence to three months imprisonment and a fine of Rs 75,000 to three convicts. It awarded two-months’ jail to the fourth convict who is 80 year old with a Rs 50,000 fine.
No liberal approach , mediation or compromise in rape cases : SC
It would be a “spectacular error” to adopt a soft approach on cases of rape or attempt to rape and there cannot be any compromise or mediation in such cases, the Supreme Court said in a stern message today.
“When a human frame is defiled, the ‘purest treasure’, is lost. Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most,” a bench headed by Justice Dipak Misra said.
“We would like to clearly state that in a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of.
“These are crimes against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow (it) to be extinguished,” the bench, which also comprised Justice Prafulla C Pant, said.
The strong remarks came as the apex court criticised a Madhya Pradesh High Court judge who was influenced by the compromise entered into between the accused Madan Lal and the parents of the seven-year-old victim and had set aside the conviction and five-year sentence for the rape. (PTI)
Recusal of judges
Justice Arun Mishra and the land acquisition law/ 2019
Other Four Judges On Bench Back Justice Mishra’s Decision
The Supreme Court turned down a plea seeking recusal of Justice Arun Mishra from a Constitution bench hearing a batch of petitions relating to the land acquisition law, and decided to hear the case on a day-to-day basis from November 6.
The plea for recusal was made by some parties, including farmer associations, that argued that Justice Mishra was also on the bench whose verdict in the land acquisition case is to be examined by the Constitution bench now headed by him.
Justices Indira Banerjee, Vineet Saran, M R Shah and S Ravindra Bhat are other members of the bench.
Backed by the other four judges, Justice Mishra said, “I am not recusing from hearing this matter.” The grounds on which the recusal plea was dismissed could not be immediately known as the judgment was still to be uploaded on the SC website.
While hearing the plea, Justice Mishra had made it clear that he would not withdraw from the Constitution bench as the grounds raised by the parties to seek his recusal were not valid. Allaying their apprehensions that he may be biased while hearing the case, the judge had said, “If I feel that I may be influenced then I will be the first person to recuse...”
The Constitution bench was set up by the Chief Justice of India to examine the correctness of contradictory judgments delivered by two benches of the SC, both comprising three judges.
The two contrasting verdicts which are to be reviewed deal with the issue of whether farmers who had refused to accept the compensation for land acquired from them could be deemed to have been compensated if the government had gone ahead and deposited the money with the treasury or a court.
In the 2014 Pune Municipal Authority case involving interpretation of the new law, a three-judge bench said the state depositing compensation in its own treasury cannot be deemed as landowners having been paid. It said such farmers could be deemed to have been compensated only if the money had been deposited with the court and if they had been paid higher rate of interest.
But in February 2018, a three-judge bench comprising Justices Arun Mishra, Adarsh Goel and Mohan Shantanagoudar ruled in Indore Development Authority case that compensation was deemed to have been paid if the government had deposited it in the treasury and there was no obligation to deposit it in court.
SC objects to Bombay HC citing religious identity of victim to grant bail to accused
Judiciary must be fully conscious of the plural composition of the country while adjudicating issues pertaining to rights of various communities: SC
SC bench quashed the order of the Bombay high court granting bail to accused for allegedly killing a Muslim youth in 2014
“The fault of the deceased was only that he belonged to another religion. I consider this factor in favour of the accused ... ,” the Bombay High Court had said in its order while granting bail to three accused belonging to Hindu Rashtra Sena for allegedly killing a Muslim youth in 2014.
Taking exception to the observation made by the high court, the Supreme Court on Thursday said that such remarks were uncalled for and reminded that the judiciary must be fully conscious of the plural composition of the country while adjudicating issues pertaining to rights of various communities. It said that any kind of violence in the name of religion or community could not be justified.
A bench of Justices SA Bobde and L Nageswara Rao quashed the order of the Bombay high court granting bail to the accused saying that there was little discussion on the other relevant factors relating to granting or withholding bail in a murder case. It asked the the high court to reconsider the bail plea of the accused afresh as per law on merit without being influenced by any extraneous reason.
“We have carefully perused the impugned order(s) granting bail and we find that there is little reference to/or discussion on the merits of the bail applications but we are satisfied that the significant reason for release is mainly the one stated above. We find that the aforesaid reason can, on a fair reading, be understood or misunderstood almost as a mitigating circumstance or a kind of a justification for the murder and it is obvious that the fact that the deceased belonged to a certain community cannot be a justification for any assault much less a murder,” the bench said.
“While it may be possible to understand a reference to the community of the parties involved in an assault, it is difficult to understand why it was said that ‘the fault of the deceased was only that he belonged to another religion’ and further ‘I consider this factor in favour of the applicants/accused.’ We have no doubt that a court fully conscious of the plural composition of the country while called upon to deal with rights of various communities, cannot make such observations which may appear to be coloured with a bias for or against a community,” it said.
“It is possible that the learned Judge wanted to rule out a personal motive against the victim, but only emphasize communal hatred. It is also possible that the learned single judge may not have intended to hurt the feelings of any particular community or support the feelings of another community but the words are clearly vulnerable to such criticism. The direction cannot be sustained,” the court said.
The high court had on January 12 last year granted bail to Vijay Gambhire, Ganesh Yadav and Ajay Lalge, accused of murdering 28-year-old Mohsin Shaikh on June 2, 2014 in Pune. As per the prosecution, the trio had attended a meeting of Hindu Rashtra Sena to protest against defiling of a statue of Chhatrapati Shiva-ji Maharaj. The accused armed with hockey sticks and bats roamed the streets on the night of June 2 when they came across Shaikh and thrashed him to death.
Their bail plea was rejected by lower court but the high court granted them relief. "The meeting was held prior to the incident of assault. The accused otherwise had no other motive such as any personal enmity against the innocent deceased Mohsin. The fault of the deceased was only that he belonged to another religion. I consider this factor in favour of the accused. Moreover, the accused do not have criminal record and it appears that in the name of the religion, they were provoked and have committed the murder,” a bench of Justice Mridula Bhatkar had said.
Remarks by judges during hearings
Once upon a time, the Supreme Court’s stray caustic remarks during hearing of a PIL or a petition involving an important social or political issue was taken very seriously by the public, the government and the legislature. Media used to headline the comments.
Newspapers and TV channels still headline such caustic remarks, which now fly thick and fast from the SC and HCs on a daily basis. But these have lost their salutary effect.
An SC bench led by Justice Madan B Lokur, infuriated by the frustratingly lackadaisical approach of authorities towards proper garbage disposal, asked why not dump the garbage at Raj Niwas, the official residence of Delhi’s lieutenant governor. One may be tempted to ask, why not Rashtrapati Bhavan, since the President is the head of the country and also lives in Delhi?
Incidents of rape, that too by those who were guardians to hapless girls who had no one to run to, made the Justice Lokur-led bench to remark that “rapes are happening left, right and centre in India”. Are they? Incidents of assault on women are on the rise and do ring alarm bells. But when the SC says rape is rampant, it surely sends a signal to the world to brand India as unsafe for women.
The same bench, while hearing a PIL on extra-judicial killings in Manipur, summoned the director of CBI, which had been entrusted with probing the killings widely perceived to be excesses by armed forces.
To the bench’s question why the accused had not been arrested, the director said once chargesheet was filed, it was for the court to either send them to custody or grant them bail. Noticing that chargesheets had Section 302 IPC charges, the bench remarked that “murderers are allowed to roam free”. The SC bench forgot to use ‘alleged’ before ‘murderers’ to soften its un-required punch.
This had its adverse impact on the armed forces, whose personnel put their lives on the line in disturbed areas to allow the legislature, the executive and the judiciary to function without the fear of ultras. Moreover, it is common knowledge that an accused is presumed innocent till he is pronounced guilty. How would the SC respond if one of the accused in the chargesheet moves an application and asks since the apex court has already termed him a ‘murderer’, would he get justice from the trial court.
The SC has been freely making remarks against the executive and, in a few cases, against the legislature. In contrast, it has been very sensitive towards comments made against judges. It did not spare sitting Calcutta HC judge C S Karnan for making it a habit to launch diatribes against Supreme Court and high court judges and sent him to jail.
When a Rajasthan HC judge made disparaging remarks against the HC chief justice in a judicial proceeding (State of Rajasthan vs Prakash Chand [1998 (1) SCC 1]), the SC came down heavily on him for breach of discipline. It said, “It is unbecoming of a judge of HC to travel out of the confines of the issue before him and to fish out material to unjustifiably malign someone, more particularly when that someone happens to be the one who is the head of the judicial family in the HC. We most strongly deprecate this practice.” Probably, PILs allow judges to take a 360-degree view than limit themselves to the subject matter of the case in hand!
When the SC makes caustic observations, does it spare a thought that it might be hurting those bureaucrats who honestly do their jobs but are not succeeding in achieving desired results given the enormity of problems. When the SC has the licence to make such remarks, would HCs remain far behind?
Recently, the Uttarakhand HC made news by giving the Ganga living entity status. It also ruled that animals had rights equal to that of human beings. Just a few days ago, the HC threatened to turn the oldest tiger reserve, Corbett National Park, into a race track for cars as the government had not evicted forest-dwelling communities and had failed to protect animals.
Given the stinging observations of the SC, no doubt intended to solve problems, attorney general K K Venugopal sounded a caution and told the bench that there should be an impact assessment of orders on PILs at the ground level. He said before passing sweeping orders, the courts must examine impact on employment, investment and morale of the workforce.
Interestingly, the SC nearly three decades ago had made a virtue of judicial restraint. In A M Mathur vs Pramod Kumar Gupta [1990 (2) SCC 533], it had said, “Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. “This quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect, that is, respect by the judiciary.
“Respect to those who come before the court as well to other coordinate branches of the state — the executive and the legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge not for the judicial process.
“The judges have absolute and unchallengeable control of the court domain. But they cannot misuse their authority by intemperate comments, undignified banter or scathing criticism of counsel, parties or witnesses. We concede that the court has the inherent power to act freely upon its own conviction on any matter coming before it for adjudication, but it is a general principle of the highest importance to the proper administration of justice that derogatory remarks ought not to be made against persons or authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case.”
These lines, said 28 years ago, still hold good for judiciary, if it wants to command respect from the public, the executive and the legislature.
Retrospective application of laws
Black Money Act, 2016, can be applied to 2015-16
In a major boost to the Centre’s drive against black money stashed abroad, the Supreme Court struck down a Delhi high court finding that penal provisions of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015, were being applied retrospectively.
A bench of Justices Arun Mishra, M R Shah and B R Gavai gave this ruling on an appeal filed by the Union government against the HC’s interim finding in the money laundering case against VVIP chopper scam accused Gautam Khaitan. The HC had passed a restraint order and said the central government had made the Act applicable retrospectively from July 1, 2015. The Centre had challenged this interim ruling in the SC.
The Black Money Act was passed by Parliament on May 11, 2015, and came into force on April 1, 2016.
Writing the judgment for the bench, Justice Gavai said, “A bare reading of the provisions of Section 3 with Section 2(9)(d) of the Black Money Act would unambiguously show that the legislative intent insofar as charging tax on undisclosed assets located outside India is concerned, is to charge the tax on its value in the previous year in which such assets come to the notice of the assessing officer. The previous year in the present case would be a period of 12 months commencing on April 1 of the relevant year and which immediately precedes the assessment year.”
The bench added, “A conjoint reading of the various provisions would reveal that the assessing officer can charge taxes only from assessment year commencing on or after April 1, 2016. However, the value of the said asset has to be as per its valuation in the previous year.”
Referring to Section 3(1) of the Black Money Act which provides that the law would come into effect from July 1, 2015, it said value of the asset was to be determined as per its valuation in the previous year.
The date was changed only for the purpose of enabling the assessee to take benefit of Section 59 of the Black Money Act, the SC said. Section 59 gives the assessee an opportunity to declare any undisclosed asset located outside India acquired through taxable income for any assessment year prior to April 1, 2016.
The bench said, “The power has been exercised in order to remove difficulties. The penal provisions under Sections 50 and 51 of the Black money Act would come into play only when an assessee has failed to take benefit of Section 59 and neither disclosed assets covered under the Act nor paid tax and penalty thereon. As such, we find that the high court was not right in holding that by the order impugned before it, the penal provisions were made retrospectively applicable.”
The apex court strikes down Delhi high court’s finding that the Act was being applied retrospectively
Sealed cover proceedings
Adopted by the SC since 2000
To prevent further damage to the CBI’s public image, already sullied by incessant mudslinging between CBI director Alok Verma and his deputy Rakesh Asthana, the Supreme Court had resorted to ‘sealed cover proceedings’ while asking all parties to maintain strict confidentiality.
After a bench led by CJI Ranjan Gogoi ordered ‘strict confidentiality’, three CBI officers had filed applications challenging their transfers out of Delhi immediately after the Centre sent both Verma and Asthana on leave.
The last application was by an IPS officer with 18 years experience. He did little justice to his experience as a police officer by relying on ‘unverified’ statement of Hyderabad-based businessman Sathish Babu Sana to make ‘shocking’ allegations against Asthana, the CVC, the NSA, a Union minister, the law secretary and a RAW special secretary.
The real facts behind these ‘shocking’ allegations need to be found out. We also must know what impelled the IPS officer to level these allegations when the SC through ‘sealed cover proceedings’ was scrutinising the CVC report’s which contained “not so complimentary and very uncomplimentary’ remarks against Verma.
But the ‘sealed cover proceedings’ appears to have disturbed some, who are questioning its efficacy. The same people have expressed similar doubts over sealed cover proceedings adopted by the SC in scrutinising the Rafale deal. Since 2000, ‘sealed cover’ proceedings have been adopted by the SC in Gujarat riot cases, the 2G spectrum allocation scam and the coal block allocation scam.
In post-Godhra riots cases, R K Raghavan headed SIT had filed several sealed cover status reports before the SC. As the SC was gunning for the Gujarat government then headed by Narendra Modi, Raghavan was hailed as an independent investigator by social activists and their activist lawyers as media reported the summary of the contents of almost every SIT report.
One SIT report unfortunately talked about an activist peddling exaggerated stories about riot victims as also tutoring witnesses. Reporting of this SIT report caused much discomfort. The activists’ lawyer vociferously and repeatedly pleaded with the SC to initiate contempt proceedings against the reporter for revealing details of the ‘sealed cover’ report.
In arbitrary allocation of 2G spectrum by UPA government in 2008, the SC had routinely scrutinised ‘sealed cover’ CBI probe status reports. No one questioned the efficacy of such proceedings then.
The SC yet again adopted ‘sealed cover’ proceedings to monitor CBI probe into coal block allocations under the UPA regime. The then PM too has been made an accused in the case, though the trial against him has been stayed since 2015 by the SC.
Before the ex-PM was made an accused, the CBI made a startling admission on April 30, 2013 — probe status reports, prior to submission to the SC, were vetted by then law minister and two joint secretary level officers, one in the PMO and the other in the coal ministry.
On May 8, 2013, the SC recorded, “The draft status report was shared with the law minister, law officers and two joint secretary level officers and at their instance some changes were made. Some of the changes made in these draft status reports are significant.” Changes related to CBI’s PE2, which was on alleged irregularities in coal block allocations during 2006-09, when the ex-PM held the coal portfolio.
Those who had subjugated the CBI director, illegally vetted and audaciously made vital changes in the probe status report are now vociferous while shedding crocodile tears for the danger to the CBI’s autonomy. We hope there will be constructive criticism of a decision by the court rather than nitpicking over ‘sealed cover proceedings’.
A majority of politicians and activists behave according to the season and circumstances. Very few rise above the surroundings to work for greater common good. It reminds us of a small story: Once a king dreamt of an owl flapping around his throne. None in the durbar could decipher the dream. The king announced a handsome reward of 10 gold coins. A long distance away, a farmer resting under a tree was day-dreaming of the reward. A bird on the tree told the farmer she would share the dream’s meaning if he agreed to share the reward. Farmer agreed. Bird said betrayal and treachery rules the roost in the kingdom. The farmer told the king what the dream meant. The king found it in sync with intelligence reports. The farmer’s happiness fizzled out as soon as he neared home as the thought of giving the bird five gold coins was gnawing him. He took an alternative road home.
A year later, the king saw another dream. A knife revolving around his throne. He sent for the farmer, who ran straight to the bird, apologised for betraying her the last time, and promised to share the booty this time. The bird said the dream meant violence would erupt in the kingdom. Satisfied with the meaning of the dream, the king gave 20 gold coins to the farmer. The man was sadder this time and working himself into a fury by repeatedly asking – what will a bird do with 10 gold coins? While heading home, he picked up a stone. As he neared the tree and the moment the bird asked for her share, the man aimed the stone at her. The bird flew away.
Next year, the king dreamt of a dove flying around his throne and again sent for the man, who ran to the tree, and profusely apologised for his treacherous and violent actions in the past. In bargain for same promise to share the reward, the bird said this time there is peace in the kingdom and the king could take up welfare works for citizens. A happy king rewarded the farmer with 50 gold coins. The man went straight to the tree, gave all the gold coins to the bird and sought forgiveness.
The bird smiled and said gold coins were of no use to her. But few men can rise above the surroundings and prevailing atmosphere to behave like real men, she said and told the farmer to strive to be a real man who remains uninfluenced by the atmosphere of distrust and conspiracy. Prior to every election, politicians across the political landscape behave alike and trade charges against each other with the sole aim of winning votes. We hope times will change.
Sentences, concurrent or consecutive?
If for non-payment of fines, then consecutive/ 2018
The Supreme Court ruled that if a convict fails to pay the fines imposed on him for separate offences, the sentences for default in payment would run consecutively not concurrently.
Five persons, convicted under Maharashtra Control of Organised Crime Act (MCOCA), were fined Rs 5 lakh each under three sections of MCOCA and upon default, they were to undergo imprisonment of three years for each section.
In an appeal before a bench of Justices Abhay Manohar Sapre and Uday Umesh Lalit, senior advocate Colin Gonsalves said the cumulative fine was Rs 15 lakh and upon default, the convicts had to undergo further imprisonment of nine years, even after serving 14 years in jail. Gonsalves pleaded that the default sentences must run concurrently, that is for three years.
Writing the judgment for the bench, Justice Lalit referred to provisions of Criminal Procedure Code and said, “The idea is clear, the default sentence is not to be merged with or allowed to run concurrently with a substantive sentence. Thus, the sentence of imprisonment for nonpayment of fine would be in excess of or in addition to the substantive sentence.”
Explaining why the sentences should run consecutively and not concurrently, he said, “Theoretically, if the default sentences awarded in respect of imposition of fine in connection with two or more offences are to be clubbed or directed to run concurrently, there would not be any occasion for the person so sentenced to deposit the fine in respect of the second or further offences. It would effectively mean imposition of one single or combined sentence of fine. Such an exercise would render the very idea of imposition of fine with a deterrent stipulation while awarding sentence in default of payment of fine to be meaningless.”
Referring to the case at hand, the bench said if default sentences awarded in respect of each of those three counts under MCOCA were directed to run concurrently, the accused may not be inclined to deposit fine for two of the three counts.
State legislatures’ lowers
Cannot enact law intruding upon the Union’s jurisdiction
The Supreme Court ruled on Tuesday that a state legislature could not enact a law permitting an aggrieved litigant to appeal directly to the apex court, bypassing the state high court. Striking down Section 13 (2) of the Chhattisgarh Rent Control Act, 2011, a bench of Justices Deepak Gupta and Surya Kant said: “The state cannot enact a legislation providing an appeal directly to SC. That would amount to intruding upon the jurisdiction of the Union, which the state legislature does not have.”
Writing the judgment for the bench, Justice Gupta said: “We are constrained to observe that the men who drafted the Act did not even consider the hierarchy of courts. As pointed above, the Rent Control Tribunal is headed by a retired judge of the HC or a district judge. What is the rationale of making such an order (of tribunal) appealable directly to the SC? We see no reason why the supervisory jurisdiction of the HC should be excluded.
“We, therefore, have no doubt in our mind that Section 13(2) of the Act, in so far as it provides an appeal directly to the SC, is totally illegal, ultra vires the Constitution and beyond the scope of the powers of the state legislature. Section 13(2) of the Act is accordingly struck down.”
The SC said Entry 77 of the Union List gave power to the Union in respect of jurisdiction and power of the SC, a power which could not be exercised by the state legislature. It also said a bare reading of Entry 65 clearly indicated that a state legislature had no power to enact any legislation relating to jurisdiction and power of the SC. “Even Entry 46 makes it clear that as far as the jurisdictional powers of the SC are concerned, they cannot be exercised under Concurrent List,” it said.
Section 13 of the Chhattisgarh Act had provided that appeal against the order of a rent controller would be filed before the Rent Control Tribunal. But Section 13(2), which the SC struck down, provided that an appeal against the tribunal’s order would, as a matter of right, go before the SC.
Working hours: Hearings after/ outside them
Late night/ hearings
The Times of India, Jul 31 2015
SC has answered two more midnight knocks
Mumbai serial bomb blasts convict Yakub Memon was not the first one to knock at the Supreme Court's door past midnight.
What made Yakub's petition unprecedented was the one-and-a-half hour long postmidnight hearing that lasted till the crack of dawn. Earlier, the hearings after court hours were mainly held at the residence of the senior judge presiding over the bench.
On April 8, 2013, lawyers of condemned prisoner at Jabalpur Central Jail, Maganlal Barela, who was to be hanged at dawn on April 9 for killing his children, successfully moved the SC close to midnight. Barela averted the gallows, after all preparations were made to hang him, after rejection of his mercy petition by the President. The fax from the SC con veying the stay on Barela's hanging reached jail authorities just five hours before the scheduled hanging.
Similarly , Nithari rape-murder convict Surinder Koli was scheduled to hang on September 9, 2014. At the intervening night of September 8-9, his lawyers, led by Indira Jaising, woke up justices H L Dattu and A R Dave and placed before them Koli's petition seeking re-hearing of his review petition. A three-judge bench later stayed the execution and ordered open court hearing.
2018, May: swearing-in of Karnataka government
The dramatic post-midnight hearing marks only the second time in the judicial history of independent India that such an event has taken place. In the previous instance, a three-judge Supreme Court bench began hearing a petition seeking postponement of Yakub Memon’s execution at 3.24am on July 30, 2015. At 4.46am, Yakub’s final petition was dismissed.
NOTE: As we have seen above, the case regarding the swearing-in of the Karnataka government was not the second late-night hearing, but perhaps the fourth. See Karnataka: political history > 2018
NEW DELHI: The hearing in the Supreme Court on the Shiv Sena-NCP-Congress combine plea is the third instance this year when the apex court held a special proceeding on a non-working day.
On April 20, the top court held an extraordinary hearing on Saturday after a former employee of the apex court accused then Chief Justice of India Ranjan Gogoi of sexual harassment and persecution.
Later on November 9, the apex court delivered its historic verdict, again on Saturday, in the Janmabhoomi-Babri Masjid land dispute case in Ayodhya granting entire 2.77 acre of disputed land in Ayodhya to deity Ram Lalla.
This is the third instance when the apex court this year held hearing on a holiday.
The Shiv Sena-NCP-Congress combine on Saturday night had filed a petition in the Supreme Court seeking quashing of the Maharashtra governor's decision to swear-in BJP's Devendra Fadnavis as chief minister and demanded an immediate floor test to avoid "further horse trading" and sought urgent hearing.
The apex court registry put up the matter for hearing.
Last year in May 2018, the top court had heard the matter on midnight when Congress challenged the invitation by the Governor to the BJP to form the government in Karnataka.
On July 29, 2015, the apex court had sat through the midnight to consider an urgent plea to stay the scheduled execution of lone death row convict of 1993 Mumbai blasts case, Yakub Memon, at 6 AM the next day.
In 1985, the apex court's doors were opened past midnight to hear the bail plea of a prominent businessman who was charged under the stringent FERA law.
The Supreme Court had attracted tremendous criticism in this case when then Chief Justice E S Venkatramaiah was woken up at midnight and proceeded to grant bail to industrialist L M Thapar.
Thapar was arrested on the basis of a Reserve Bank of India complaint that several companies run by him had violated the then Foreign Exchange Regulation Act (FERA).
The hearing continued past midnight at the residence of the judge on the intervening night of December 6 and 7, 1992 after the demolition of Ram Janmabhoomi Babri Masjid at Ayodhya.
The Ayodhya case was heard at the residence of Justice M N Venkatachaliah, who later became the Chief Justice of India.
In that case, one of the parties to the Ayodhya dispute had rushed to the apex court immediately after the structure was razed by karsevaks.
After the hearing at his residence, the bench headed by Justice Venkatachaliah directed that status quo has to be maintained at the disputed site.
Like the Yakub Memon case, there are other instances in which petitions have been rushed late in the evening for considering a stay on their execution.
In the infamous Ranga-Billa case of national capital, a bench headed by Justice Y V Chandrachud, who held office of Chief Justice of India from February 22, 1978 to July 11, 1985, sat late in the night to consider a plea that they should not be hanged.
Among such petitions was also the matter concerning Noida's Nithari serial murders convict Surinder Koli, when the apex court heard the late night move on his behalf for staying the execution of his death sentence.
Another such hearing took place in the eve of April 9, 2013 when a petition was moved on behalf of one Manganlal Barela against the execution of his death sentence in a murder case.
In the case titled Shatrughan Chauhan v/s Union of India, the execution of death sentence against 16 persons at 4 PM was challenged and the lawyers rushed with a petition to the residence of then Chief Justice of India P Sathasivam.
He said the CJI and Justice M Y Iqbal heard the matter at around 11.30 PM and at around midnight ordered a stay on the execution.
Lawyers also recall some political matters also when the apex court had held late night hearings, including the one in which it ordered a composite floor test in Uttar Pradesh in 1998 to determine who enjoyed the majority - Kalyan Singh or Jagadambika Pal.
Supreme Court: India (mainly SC's rulings)
Judicial appointments, senior: India mainly the Collegium debate