Judiciary, superior: India
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Union law minister Ravi Shankar Prasad has written to the chief justices of all high courts asking them to expedite the recruitment of court managers, a separate cadre of officers to assist the judges in `streamlining court administration' and free judges for adjudicating cases.
The letter says the scheme of appointing court managers was available since 2010 and an allocation of Rs 300 crore was made for the high courts to appoint such officers. However, the minister has pointed out how the reluctance of the high courts has left the scheme close to failure with less than 15% of the allocated money spent for this purpose.
Through these court managers, the government is planning to create a separate cadre of officers in states to look after management of lower courts so that judges can concentrate on judicial functions and not get bogged down with administrative work. The 13th Finance Commission had allocated Rs 300 crore between 2010-15 for the lower courts to appoint court managers.
Mishra case, 1995: lawyer faced punishment for contempt
Signs are ominous for advocates who pressed unsubstantiated allegations against CJI Dipak Misra as a three-judge bench of the Supreme Court on Monday repeatedly said it would be guided by the V C Mishra judgment "which squarely covered the situation arising from two petitions".
The two petitions — one by 'Campaign for Judicial Accountability and Reforms' (CJAR) and the other by its member advocate Kamini Jaiswal — were filed and pressed for hearing before a bench headed by Justice J Chelameswar.
Though CJAR's petition, mentioned by Prashant Bhushan on Wednesday, was listed for hearing on Friday before a bench headed by Justice A K Sikri, senior advocate Dushyant Dave mentioned Jaiswal's petition, identical to the one by CJAR, on Thursday and succeeded in getting it listed the same day for hearing before Justice Chelameswar.
A three-judge bench of Justices R K Agrawal, Arun Mishra and A M Khanwilkar told Prashant Bhushan, his father Shanti Bhushan and Jaiswal that the situation arising from the two petitions was squarely covered by the SC's March 10, 1995 judgment in V C Mishra case.
Mishra's case arose from a complaint filed by an Allahabad HC judge, who wrote a letter in 1994 to the then acting chief justice of the HC alleging that Mishra created a scene inside his court when he asked questions about the case to scrutinise whether it deserved to be entertained. The judge said Mishra abused him and threatened that he would get the judge transferred.
The SC had sentenced Mishra to six weeks imprisonment but kept it suspended for four years on the condition that if he misbehaved again, the sentence would revive and he would be taken to jail.
However, the SC suspended Mishra from practising in courts for three years and ordered his eviction from all posts, including to those he was elected.
The SC had said, "It is not the heat generated in the arguments but the language used, the tone and the manner in which it is expressed and the intention behind using it which determine whether it was calculated to insult, show disrespect, to overbear and overawe the court and to threaten and obstruct the course of justice.
"To resent the questions asked by a judge, to be disrespectful to him, to question his authority to ask the questions, to shout at him, to threaten him with transfer and impeachment, to use insulting language and abuse him, to dictate the order that he should pass, to create scenes in court, to address him by losing temper, are all acts calculated to interfere with and obstruct the course of justice. Such acts tend to overawe the court and prevent it from performing its duty to administer justice.
Such conduct brings the authority of the court and the administration of justice into disrespect and disrepute and undermines and erodes the very foundation of the judiciary by shaking people's confidence in the ability of the court to deliver free and fair justice."
Significantly, the SC a few months ago had ordered suspension of an advocate from practising for a month for casting aspersions on the court registry for manipulating listing of the petition filed by his client.
‘Medical college admissions’ issue/ 2017
Plea against judges attempt to scandalise judiciary: SC
Allegations against members of the higher judiciary of involvement in the medical admission scam and the manner in which Justice J Chelameswar admitted a petition based on those charges roiled the Supreme Court again on Monday, with a three-judge bench speaking about an attempt to “scandalise the court and judiciary” and attorney general K K Venugopal expressing concern that the “crisis” had split the judiciary and the bar.
“We take the allegations very seriously and will take the petitions to the logical conclusion. It is a deliberate attempt to scandalise the court and judiciary,” a bench of Justices R K Agrawal, Arun Mishra and A M Khanvilkar said as it reserved the verdict until Tuesday. The stern remark raises the prospect of the court launching contempt proceedings against advocate Kamini Jaiswal and her counsel, activist lawyer Prashant Bhushan.
The bench, in fact, repeatedly hinted that it would go by the SC’s decision in the V C Mishra case of 1995, where it awarded six-week imprisonment to Mishra, a lawyer, but kept it suspended for four years. “V C Mishra case squarely deals with the situation created by these two petitions,” it said even as the Centre backed the “forum shopping” charge against Jaiswal and Bhushan.
Compared to the tumultuous scenes that prevailed inside the court last week when Bhushan was surrounded by an irate group of lawyers who accused him of maligning the apex court, the 90-minute special hearing post-lunch on Monday lacked drama.
Bench told Bhushans they were aggravating contempt
Yet, tension hung heavy over the matter which brought the rift among judges of the top court and the bar out in the open. Bhushan and his father Shanti Bhushan, a former Union law minister, demanded that Justice Khanwilkar recuse himself from the matter as he had heard cases related to admissions to private medical colleges.
A defiant Justice Khanwilkar refused to oblige, and the bench direly reminded the Bhushans that they were aggravating the contempt by bringing charges against CJI Dipak Misra even when they had not been able to substantiate wild allegations against him. The bench said they had engaged in “forum shopping” to get petition listed.
Justice Arun Mishra said, “Sir, you (Prashant Bhushan) knew on Thursday that a petition making identical allegations against the CJI filed by your group (CJAR) was pending before a bench headed by Justice Sikri. Despite that, you filed another petition and insisted it to be heard on the same day by court No.2 (Justice Chelameswar). This is both contempt and forum shopping sir.”
The Bhushans denied that any charge was levelled against the CJI. “No allegations were made against the CJI. A wrong impression is being given,” they argued. But they justified their stand that the CJI needed to be kept away from the two petitions moved to demand an SIT probe into alleged involvement of judges in the medical admission scam.
Since the CBI case had led to the arrest of a former judge of Odisha high court and the conspiracy pointed to attempts to influence proceedings before a bench headed by the CJI, it was absolutely essential to keep the CJI out of the two petitions, both judicially and administratively, they said.
Though they said they would drop the matter if it was not assigned to a fivejudge bench, the father-son duo defended Justice Chelameswar’s controversial decision to refer the petitions to a five-judge bench. A five-judge bench led by the CJI had nullified Justice Chelameswar’s order but Bhushan stood by it and said the two petitions raised substantial constitutional issues and Justice Chelameswar had passed a “very appropriate order” exercising powers conferred on each SC judge under Article 142.
“All, including the CJI, in his administrative capacity, were bound to follow Thursday’s order,” Shanti Bhushan contended.
SC rejects SIT probe, “deprecates” the conduct of advocate-petitioner
The tumult in the country’s top court over the alleged role of judges in admissions to private medical colleges ended on a rather tame note, with a three-judge bench rejecting the petition seeking an SIT probe into the matter while limiting itself to merely “deprecating” the conduct of advocate-petitioner Kamini Jaiswal as “unethical, unwarranted and contemptuous”.
Just a day after the court repeatedly warned the petitioner against committing contempt, the bench decided to exercise restraint in order to not deepen the crisis within and the split in the bar. It said the power to initiate contempt called for extreme care and caution for securing public respect and care for the judicial process.
The reluctance to take action notwithstanding, the bench minced few words in delineating the offence it found the petitioner guilty of.
After dismissing the petition, the bench of Justices R K Agrawal, Arun Mishra and A M Khanwilkar said, “It is the duty of the bar and the bench to protect the dignity of the entire judicial system. We find that filing of such petitions and the zest with which it is pursued has brought the entire system in the last few days to unrest... We deprecate the conduct of forum-hunting, that too involving senior lawyers of this court.”
Concluding the 38-page judgment on a conciliatory note, the bench said, “Let good sense prevail over the legal fraternity and amends be made as a lot of uncalled-for damage has been made to the great institution in which the public reposes their faith.”
Jaiswal had engaged senior advocates Dushyant Dave, Shanti Bhushan and Prashant Bhushan on three different days — Thursday, Friday and Monday — to argue her petition in the SC. On Monday, the Bhushans had requested the recusal of Justice Khanwilkar. The three-judge bench found the request “contemptuous”.
The bench said it was “far-fetched and unimaginable” to attempt connecting the arrest of an ex-judge of the Orissa HC in the medical scam case with the proceedings before a bench headed by CJI Dipak Misra, which in fact had refused any relief to the college in question. “The submissions so raised... in this petition, and the entire scenario created by filing of two successive petitions, are really disturbing. The entire judicial system has been unnecessarily brought into disrepute for no good cause. It passes comprehension how it was that the petitioner presumed that there is an FIR lodged against any public functionary,” the bench said.
It rejected the petitioner’s arguments that the CJI should not have judicially or administratively dealt with her petition as it concerned proceedings in the CJI’s court and that it should have been heard by a bench of the first five senior judges as directed by Justice J Chelameswar on Thursday.
The bench said, “It appears that in order to achieve this end, the particular request has been made by filing successive petitions day after the other and prayer was made to avoid the CJI to exercise power for allocation of cases which was clearly an attempt at forum-hunting and has to be deprecated in the strongest possible words.
“Making such scandalous remarks also tantamounts to interfering with administration of justice. Such things cannot be ignored and recusal of a judge cannot be asked for on the ground of conflict of interest. It would be the saddest day for the judicial system of this country to ignore such aspects on unfounded allegations and materials.”
2019, Apr: a vitiated atmosphere
In the last four years, there has been a systematic assault on the reputation and dignity of judges and the judiciary, both from within and outside. Those who have made a fortune, both in terms of wealth and a certain type of reputation, by practising in the SC and high courts, have generously fed receptive ears in court corridors to spread perceptions about the integrity and political leaning of judges. The stories go viral in no time. Those who hear these stories add generous amounts of spice while retelling them with gusto.
The attack is also from within the judicial fraternity. Not long ago, there was a vociferous SC judge who wore his attitude on his sleeve and considered himself the most learned. He never missed an opportunity to crudely ridicule advocates while claiming to have mastery over English, Hindu, Urdu, mythology and ancient scriptures. But he was unusually generous towards the family of a particular activist lawyer and mostly gave relief in the cases they argued before him. After his retirement, he was prolific in writing blogs and gave unsolicited advice to lawyers, judges, journalists and politicians.
When Justice H L Dattu was a few days away from taking oath as CJI, this learned retired judge tried to circulate a bunch of papers among journalists and egged them on to write against Justice Dattu. When the scribes told him that the papers would require verification, the disappointed judge took them back saying “by the time you verify the papers, he will become CJI”.
Since Justice Dattu’s retirement, rumour mills continued to churn out canards whenever a new judge was to take oath as CJI, be it T S Thakur or J S Khehar. The rumour mill’s attack on a CJI is multi-pronged — question moral character, allege corruption or express surprise over their children’s income. These modes have wounded several CJIs’ reputation in court corridors. Willing ears and loud mouths have magnified the stories and made them masquerade as shocking revelations.
Danger lurks when judges start believing in these canards. There are wily lawyer-politicians waiting to stoke the fire rising from these make-believe stories. When politician-lawyers and activist-lawyers find a confluence, an unprecedented press conference takes place, robbing the incumbent CJI of the vestige of dignity. Three of the four rebel judges who held the press conference have since retired. Could they have chastised the CJI differently than resorting to a press conference.
When judges heap ignominy on the CJI, then even the most scrupulous lawyer starts believing every canard that he hears in the corridors. The ignominy takes no time to seep into the vitals of the judiciary, dissolving the prestige, dignity and respect attached to the institution and the CJI.
A year from the press conference, the present CJI has got embroiled in a sexual harassment complaint. A three-judge panel will determine the veracity of the allegation, but there is force in the charge that the CJI violated procedure on April 20 by being part of the hurriedly convened bench. Though he recused when the bench dictated the order, there are no two views about the argument that he should never have been part of a bench hearing an issue directly affecting him.
But what does a CJI do when faced with such a damaging allegation? Should he let go the only opportunity to vent his anguish, dejection and defence? He could not risk holding another press conference as that would have attracted even more rabid criticism. Silence was never an option, for these days, silence is taken as acceptance of the charge.
Unlike lawyers faced with similar charges, the CJI could not have rushed to an HC to push things under the carpet and get a gag order against the media from a friendly judge. Should he have talked about his income and bank balance? He did so probably to tell the world that a judge’s integrity leaves him with a thin bank balance at the end of his career.
Can HC order flight ops from any airport?
Told To Use Meghalaya Airport, Airlines Take Battle To SC
Two years after the Supreme Court succeeded in getting Shimla air linked with Delhi and Chandigarh, the Meghalaya high court attempted to emulate it by directing private airlines and the civil aviation ministry to start passenger flights from the state’s Umroi airport to Delhi and other metro cities.
Indigo and Jet Airways moved the apex court on Wednesday challenging a December 7 order of the high court asking the ministry and private airlines to get back in a week with a firm date for commencement of flights from Umroi airport. The high court asked the civil aviation secretary, chairman of Airports Authority of India and CEOs/CMDs of private airlines Go Air, Vistara, IndiGo and Jet Airways to be present in court on December 14 if they failed to fix a date for start of passenger flights from Umroi.
Appearing for IndiGo, senior advocate Mukul Rohatgi told a bench of Chief Justice of India Ranjan Gogoi and Justices S K Kaul and K M Joseph that the airport was not fully ready to handle passenger traffic and landing of aircraft. Moreover, it lacked adequate fire-fighting facilities, he added, and told the court that flights could not be started from Umroi airport, which is around 30 km from capital Shillong.
The bench agreed to hear the petition by IndiGo and Jet Airways on Thursday. Jet Airways, through advocate Gautam Talukdar, said that the airline was conforming to the rules and regulations laid down by the civil aviation ministry, which included providing flights to the north-eastern region under the Route Dispersal Guidelines, which was issued on August 8, 2016.
“Petitioner is well within its rights to first assess the commercial viability of commencing operations from Umroi airport before taking a decision,” Jet Airways said and termed the high court order a violation of its fundamental right to carry out a particular lawful business. Jet said it had a limited fleet engaged in domestic and international routes to ensure its commercial viability and it would not be possible for it to start operations from Umroi airport.
2017: 39 comprising judges, 14 of officers
Supervise Furniture Replacement, Security Arrangement, Chamber Allotment...
Within a month of coming to power, the Modi government scrapped over 50 groups of ministers (GoMs) as well as empowered GoMs (EGoMs) set up by UPA-II with the intention of injecting transparency in decision-making, but in the Supreme Court, the number of committees has spiralled over the years.
The Chief Justice of India and the judges have a hands-on approach, and supervise a wide spectrum of activities -from replacement of furniture, arrangement of security , allotment of chambers to lawyers, and functioning of the court museum, to tracing the history of the SC and high courts.
Given the number of committees -39 comprising judges and 14 made up of se nior officers designated as registrars -the judicial work of judges pales before the enormous administrative work each one is saddled with. The SC has a pendency of around 60,000 cases.
Of the 39 panels comprising judges, CJI J S Khehar heads six, which deal with law reporting council, desir ability of continuance of senior officers of the SC beyond the age of 55 years, computerisation and the use of information technology in judiciary (two panels), restatement of Indian law projects that deal with studies in various aspects of law, and supervision of the functioning of the CGHS first aid post in the SC. The SC's most senior judge after the CJI, Justice Dipak Misra, too heads half a dozen committees, supervising the construction of the SC's new building at Pragati Maidan, regulating purchases, welfare measures for staff and grievance redressal, allotment of lawyers chambers, sensitisation of family courts, and overseeing implementation of suggestions by the SC Bar Association.
Justice J Chelameswar chairs five committees, which look after the selection of law clerks (who assist judges in research work), library , maintenance of SC transit home-cum-guest house, bringing improvement in the SC's functioning, and one which deals with amendments to SC rules.
Justice Ranjan Gogoi and Justice Madan B Lokur head four panels each, including those on promotion of SC offi cers, accreditation of legal correspondents, SC legal services committee, expansion plan, PIL matters, mediation and conciliation project, process of scanning, digitisation and preservation of case records, and study on constitutional laws and allied subjects.
Justice R K Agrawal chairs three -one that chooses furniture to be purchased for the court, another for studying pollution within the SC premises and recommending preventive measures, and the third on maintenance of the court building.
Apart from these, Justice N V Ramana heads the security committee, the lone woman judge in the SC, Justice R Banumathi, heads the gender sensitisation and internal complaints committee, and Justice S A Bobde chairs a committee set up to trace the historical background of the SC and high courts.
Contempt charges against judges
1992: Justice V Ramaswami
A quarter century ago, the Supreme Court was faced with an NGO's plea seeking initiation of contempt of court proceedings against sitting SC judge Justice V Ramaswami. The NGO had accused him of writing letters, in which he made “sweeping allegations“ against judges who were part of a committee inquiring against him but the court refused to entertain the request.
An inquiry panel headed by Justice P B Sawant was set up by Parliament in consultation with the then CJI after a motion for Justice Ramaswami's removal was introduced in the House. While the inquiry was on, Justice Ramaswami wrote a letter on January 21, 1992 making “sweeping allegations against certain judges and the judiciary“. In a subsequent letter on March 28, he explained the context in which he had written the earlier letter. The panel held Justice Ramaswami “guilty of wilful and gross misuse of office, purposeful and persistence negligence in discharge of duties, moral turpitude by using public funds for private purposes in diverse ways and reckless disregard of statutory rules which brings to disrepute high judicial office and dishonour to the institution of judiciary and undermines the faith and confidence which public reposes in administration of justice“.
The Parliament then took up the motion for his removal as SC judge, the first of its kind in the country . But the motion, which required two-thirds votes of MPs present, fell through in 1993 as Congress MPs abstained from voting. However, then CJI Sabya sachi Mukherjee withdrew judicial work from Justice Ramaswami. No direction was ever issued by a higher court stripping a sitting judge of judicial and administrative work as done by the SC in the case of Justice C S Karnan. In a petition filed in 1992, NGO `Sub-committee on Judicial Accountability' had requested the SC to initiate suo motu contempt proceedings against Justice Ramaswami for writing the January letter. A bench of then CJ M N Venkatachalliah and Justice A M Ahmadi and Justice Kuldip Singh declined to entertain the plea. It observed, “We feel that a lot of misunderstanding could have been avoided if the letter had not been written. We are unhappy that it came to be written. We while expressing our unhappiness about the episode, however, think we should decline in the larger interest to suo motu institute any proceedings for contempt against Justice V Ramaswami.“
In an unprecedented step, Chief Justice of India J S Khehar decided on Tuesday to initiate contempt of court proceedings against sitting Calcutta high court judge C S Karnan for continuously levelling allegations against the Madras HC chief justice and other judges.
The SC has listed the contempt proceedings for Wednesday and the case will be heard by a bench headed by the CJI and comprising six other senior judges -Dipak Misra, J Chelameswar, Ranjan Gogoi, Madan B Lokur, P C Ghose and Kurian Joseph.
This is the first time that a Constitution bench has initiated contempt of court proceedings against a judge of the SC or HC. There have been times when the CJI, after receiving inquiry reports against a sitting judge, has recommended to Parliament to ini tiate proceedings for the removal of the erring judge.
Karnan had plunged Madras HC into a crisis in 2015 by threatening contempt proceedings against Chief Justice Sanjay K Kaul. Karnan had accused Kaul of interfering in his judicial work and sought a CBI probe into the alle ged forged educational qualification of another HC judge.
The controversial judge has also alleged that he was a victim of caste bias as he was a Dalit and had accused the Madras HC chief justice of harassing him. Subsequently , when he was transferred, Karnan “stayed“ the order of the SC, advising the CJI not to interfere in his “jurisdiction“, before relenting and accepting his transfer. The outcome of the proceeding against the judge is keenly awaited. If the apex court finds the judge guilty of contempt, will it punish him and send him to jail? If he is found guilty and sent to jail, will he automatically lose his job as HC judge or will the bench make a recommendation to Parliament for his removal? Constitutionally , the only proc ess for sacking a judge of the SC or HC is through a removal motion passed by a two-thirds majority in each House of Parliament. Till date, no judge has been removed by Parliament though such motions were initiated thrice. The caste angle to the case also threatens to generate a controversy if matters reach Parliament. A removal motion against Justice V Ramaswami was defeated in Parliament in May 1993 with the help of abstaining Congress MPs. Sikkim HC Chief Justice P D Dinakaran resigned in July 2011 ahead of the initiation of a removal motion against him in the Rajya Sabha. Justice Soumitra Sen of the Calcutta HC argued his case unsuccessfully before the RS which passed the motion for his removal, but Sen resigned before the Lok Sabha could take up the motion.
Karnan had also threatened to ask the National Commission for Scheduled Castes to initiate a detailed inquiry against the HC chief justice for harassing him, a Dalit, and also slapping a case against the chief justice under stringent provisions of the SCST Atrocities (Prevention) Act. The HC had rushed to the SC, accusing Karnan of judicial indiscipline. The SC had on May 11, 2015 restrained Karnan from initiating any action against the chief justice. But Karnan continued his diatribe against the CJ and other judges and kept writing letters to the PM and the CJI and circulated the letters among advocates. Exasperated, the SC had advised the President to transfer him to Calcutta HC.
SC divests Justice Karnan of duties
Seven-Judge Bench Strips Him Of Duties, Asks Him To Hand In Judicial Files To HC
In an unprecedented step, a bench of seven seniormost Supreme Court judges on Wednesday asked Calcutta high court's Justice Chinnasamy Swaminathan Karnan to be present in the SC on February 13 and explain why he should not face contempt of court proceedings.
In a sombre, 25-minute hearing held in pin drop silence in a jam-packed courtroom, a bench of CJI J S Khehar and Justices Dipak Misra, J Chelameswar, Ranjan Gogoi, Madan Lokur, P C Ghose and Kurian Joseph issued notice to Karnan and asked him to appear and explain whether a series of letters levelling “scurrilous“ allegations against sitting and retired SC and HC judges were indeed written by him and if so, why contempt of court proceedings be not drawn against him. Pending contempt procee dings, the bench took another unprecedented step of stripping Karnan of all judicial and administrative work. “Justice Karnan shall forthwith refra in from handling any judicial or administrative work as may've been assigned to him as a consequence of the position held by him. He is also directed to return all judicial and administrative files in his possession to the Calcutta HC registrar general,“ it ordered.
Though the unparalleled step was taken by top judicial brains on the SC bench, they were aware of the unchartered path ahead. “We will be seeking assistance from the bar at a larger level -what we can do and what we cannot. What should be the punishment? If punished (for contempt), should he remain in office? These issues are of vital importance.We have to be and we should be very careful,“ the court said.
Proceedings before the Constitution bench started on Wednesday with attorney general Mukul Rohatgi making a 20-minute presentation on the constitutional crisis triggered by Karnan's allegations. Rohatgi said this was a case where facts, existence of letters authored by Karnan, were not in any doubt. “These are open communications. Nature of allegations are disparaging and scurrilous, which are very mild words to describe the charges he has made against sitting and retired judges. It brings the administration of justice to complete disrepute. This court must set an example and it will make citizens aware that the SC will not hesitate to take action against anyone who brings administration of justice to disrepute even if the person is an HC judge,“ he said.
CJI Khehar said the signature on the letters appeared to be of Karnan. “Let him come before us and decide whether he owns up authorship of the letters. If he denies, then it will change the entire scenario,“ the CJI said, indicating that this could require a thorough inquiry . Rohatgi requested the court to direct the Calcutta HC chief justice not to allo cate judicial work to Karnan till he purged himself of contempt charges. “Add to the order that if Justice Karnan writes any more similar letters, it will aggravate the contempt charges,“ the AG said.
But the court refused and said it was a request based on presumption. The SC also said it would not direct the HC CJ to withdraw work from Karnan. “Ordinarily , the SC never directs the HC CJ, we only request him. But why put the HC CJ to trouble when we can do it. We will neither direct nor request the CJ. We will do it ourselves,“ the bench said.
Selected to be a judge of Madras HC by the collegium headed by then CJI K G Balakrishnan in 2008, Karnan was born on June 12, 1955 in Karnatham village Tamil Nadu's Cuddalore district. His father had secured the President's award for being a good teacher. He passed law from Madras Law College in 1983.
Justice Karnan demands Rs 14cr relief from SC
Facing arrest warrant for defying Supreme Court orders in a contempt case against him, Calcutta High Court's Justice C S Karnan has passed a suo motu order, despite being divested by the SC of judicial powers, directing the CJI and six senior-most SC judges to pay him Rs 14 crore in compensation.
He also ordered the CBI to probe and report to Parliament on his complaint of corruption against 20 sitting and retired SC and HC judges. The allegations were construed as contempt by CJI J S Khehar, leading to setting up of the seven-judge bench which initiated contempt proceedings against him. The SC had issued bailable arrest warrant against him on March 10 while ordering his production before the court on March 31 as Justice Karnan twice defied the SC summons seek ing his presence to carry forward the proceedings.
Ignoring the se rious consequenc es, Justice Karnan, ordered to be divested of both judicial and administrative work by the SC, passed an order on Wednesday and followed it with a letter to the seven judges on Thursday . In Wednesday's order, Justice Karnan directed the CBI to conduct a thorough probe into his corruption charges against the 20 judges and said material to substantiate his allegations was available with Madras HC. More seriously , he ordered the seven judges on the bench headed by the CJI to pay him a compensation of Rs 14 crore for ruining his reputation. “The seven judges have prevented me in carrying out my judicial and administrative works from February 8 till now. Therefore, I am calling upon all seven judges to pay compensation, a sum of Rs 14 crore as compensation since you disturbed my mind and my normal life, besides you have insulted me in the general public due to lack of legal knowledge,“ he said.
He also asked them to pay the compensation within seven days.Justice Karnan further muddied the waters by firing off a fresh letter addressed to the seven judges informing that their interim orders were null and void.
SC asks him to respond in 4 weeks, he denies/ March 2017
'Respond in 4 weeks on contempt charges', SC tells Justice Karnan; he says he will not unless his work is restored to him
Justice Karnan also dared the SC to punish him again saying he won't appear again unless his judicial work is restored.
The SC believed Justice Karnan 'is not able to comprehend what exactly he is doing'.
Attorney General Mukul Rohatgi said that he was perfectly aware of what he's doing
NEW DELHI: The Supreme Court today directed Kolkata high court's Justice CS Karnan+ to respond to defamation charges+ in four weeks, and when he said he wouldn't unless his judicial work is restored to him, the court asked him if he was mentally fit. "If you feel you are not mentally fit to answer the queries of court, you give us a medical certificate," said Chief Justice JS Khehar to the Kolkata judge who's facing contempt proceedings for making allegations of bias against Madras High Court colleagues as well as against the Supreme Court. As the SC bench rose to leave, Justice Karnan+ loudly declaimed that he wouldn't again appear before the top court. It was unclear whether he would 'never' appear in the SC or would never appear in the SC 'on this matter'. The Kolkata Judge then told the media that he's going to "pass an order against" the seven-judge SC bench hearing his case. Just before that, Justice Karnan also dared the SC to punish him again saying he won't appear again unless his judicial work is restored.
The apex court refused to agree to restore the Kolkata judge's judicial work to him and told him he's free to engage a lawyer to defend himself. Justice Khehar asked him more than once if "is mentally fit to understand the gravity of the contempt proceedings."
During the hearing Attorney General (AG) Mukul Rohatgi said that Justice Karnan was perfectly aware of what he was saying and doing.
The Chief Justice however told the AG "we can see his (Justice Karnan) state of mind is not clear and he is not able to comprehend what exactly he is doing." Earlier this month, the SC had issued a bailable warrant against Justice Karnan to secure his presence in the court on the next date of hearing, which is today, March 31. That was the first and so far only time that a sitting judge of the higher judiciary faced contempt proceedings and the apex court has been forced to issue a warrant against a judge.
Karnan summons CJI, 6 judges
Justice C S Karnan of the Calcutta HC passed an order asking the SC judges to appear at his residential court in Kolkata.
A seven-judge constitutional bench had issued a bailable arrest warrant against Justice Karnan.
In a move probably unprecedented in the country's legal history, Justice C S Karnan of the Calcutta high court said on Thursday that he has passed an order asking Chief Justice of India J S Khehar and six other judges of the Supreme Court to appear before him at his residential court in Kolkata on April 28.
CJI Khehar and the six other judges had earlier initiated contempt proceedings+ against Justice Karnan and summoned him to appear before them on March 31. The seven-judge constitutional bench had also issued a bailable arrest warrant against Justice Karnan.
Justice Karnan. "On 28.04.2017 at 11.30am, the Hon'ble seven judges as mentioned above will appear before me at my Rosedale Residential Court and give their views regarding quantum of punishment for the violation of the Scheduled Castes and Scheduled Tribes Atrocities Act," Justice Karnan told reporters.
The 'suo motu judicial order' was passed from his residence which, the judge said, has now become his "makeshift court at Rosedale, New Town, Kolkata - 700160". Justice Karnan also told reporters that the seven judges comprising the bench that initiated contempt proceedings against him insulted him "wantonly and deliberately and with mala fide intention".
In his signed order, Justice Karnan has stated that on March 31 he had "pronounced a judgement wherein the Hon'ble seven judges are accused under the Scheduled Castes and Scheduled Tribes Atrocities Act, 1989. Justice Karnan's order further states that the CJI had raised a question regarding his mental health on March 31 and this was endorsed by the six other judges in the bench. The seven judges had insulted him by raising this question in the the open apex court, Justice Karnan claimed.
Karnan claimed. "The CJI also mentioned to me that I am not having a clear mind, hence the suo motu contempt proceeding is being adjourned for four weeks so I may clear my mind. This is an additional big insult to me in the open apex court and the same was endorsed by the six other Hon'ble judges," Justice Karnan added.
This extraordinary tussle had started a few months ago after Justice Karnan had written letters to the CJI and Prime Minister, alleging that seven high court judges were corrupt. This had prompted the Supreme Court to initiate contempt proceedings against him.
After Justice Karnan spoke out against this, his judicial and administrative powers were withdrawn and he was asked to appear before the constitutional bench. When he refused to comply, the Supreme Court issued that warrant and directed the director general of police, West Bengal to execute it to ensure Justice Karnan's presence before the bench on March 31.
Justice Karnan did appear before the constitutional bench on March 31 but reiterated his charges against the seven judges. He also sought restoration of his judicial and administrative powers which wasn't granted.
2019/ Madras CJ quits protesting transfer to Meghalaya
Miffed at the Supreme Court collegium’s decision to transfer her to Meghalaya high court from the historic Madras HC, Chief Justice V K Tahilramani on Friday tendered her resignation to President Ram Nath Kovind. She sent a copy of the resignation letter to CJI Ranjan Gogoi.
Justice Tahilramani was appointed as a judge of Bombay HC on June 26, 2001, at the age of 43. She became chief justice of Madras HC on August 12, 2018. Justices Tahilramani and Gita Mittal were the only women chief justices in the male dominated 25 HCs. Justice Tahilramani was to retire on October 2, 2020, which means she foregoes more than a year of chief justiceship, and a possible elevation to the SC by tendering her resignation.
The trigger for Justice Tahilramani’s resignation was the August 28 decision of the SC collegium headed by CJI Gogoi and comprising Justices S A Bobde, N V Ramana, Arun Mishra and R F Nariman proposing the transfer of Meghalaya HC CJ Justice A K Mittal to Madras HC. The same day, the collegium decided to transfer Justice Tahilramani to Meghalaya HC.
Meghalaya HC has a sanctioned strength of four judges while Madras HC has a sanctioned strength of 75 judges.
In her one-paragraph resignation letter, Justice Tahilramani requested the President to relieve her immediately. The President has forwarded the letter to the government for further action.
“In the interest of better administration of justice” was the reason given by the collegium when it transferred Justice Tahilramani to Meghalaya HC, which was established in March 2013. Madras HC, on the other hand, is one of the three oldest HCs and was established on June 26, 1862. Sources said that the judge’s punctuality was an issue with the collegium.
Corruption by judges, alleged
CJI allows CBI to file case against HC judge/ 2019
In an unprecedented decision, Chief Justice of India Ranjan Gogoi gave permission to the CBI to register a case (FIR) against sitting Allahabad high court judge Justice S N Shukla under the Prevention of Corruption Act for alleged favours to a private medical college for MBBS admissions.
Nearly 30 years ago, the apex court in the K Veeraswamy case on July 25, 1991 had prevented any investigating agency from lodging an FIR against a sitting Supreme Court or HC judge without first showing the evidence to the CJI for permission to investigate the judge.
Before 1991, no investigating agency had ever probed a sitting HC judge and this is the first time since then that the CJI granted permission to an investigating agency to lodge an FIR against a sitting judge. The CBI will soon register a case against Justice Shukla, an ignominious development that will get aggravated by the possibility of his arrest under the PC Act.
The investigating agency had written to CJI Gogoi to seek permission to investigate Justice Shukla in the case.
CJI wrote to PM seeking Justice Shukla’s removal
Seeking permission to probe Allahabad HC judge S N Shukla, the CBI director had written to the CJI saying, “Aforementioned preliminary enquiry (PE) was registered by the CBI against Justice Sri Narayan Shukla of the high court of Allahabad, Lucknow bench, Uttar Pradesh, and others on the advice of the then CJI (Dipak Misra) when the matter regarding alleged misconduct of Justice Shukla was brought to his knowledge.”
Attaching a brief note on the PE with a chronological chart, the CBI director had said, “If deemed appropriate, permission may be granted to initiate a regular case for investigation.” After perusing the material, the CJI wrote to the CBI director, “I have considered the note appended to your letter on the above subject. In the facts and circumstances of the case, I am constrained to grant permission to initiate a regular case for investigation as sought for in your letter under reference.”
Last month, CJI Gogoi had written to PM Narendra Modi for moving a motion in Parliament for removal of Justice Shukla, an action first recommended 19 months ago by then CJI Misra after an in-house inquiry panel found him guilty of serious judicial irregularities. Prior to writing to Modi, CJI Gogoi rejected Justice Shukla’s request for re-allocation of judicial work, which was withdrawn from him on January 22, 2018, following his indictment by the in-house panel.
On a September 2017 complaint of UP advocate general Raghvendra Singh alleging malpractices against Justice Shukla, then CJI Misra had set up a panel comprising then Madras HC CJ Indira Banerjee, then Sikkim HC CJ S K Agnihotri and MP HC’s Justice P K Jaiswal to inquire into alleged favours shown by Justice Shukla to a private medical college by extending deadline for admission of students in violation of an SC order.
The panel concluded that “there is sufficient substance in the allegations contained in the complaints against Justice Shukla and the aberrations complained of are serious enough to call for initiation of proceedings for his removal”. It had also said Justice Shukla had “disgraced the values of judicial life, acted in a manner unbecoming of a judge” to lower the “majesty, dignity and credibility of his office” and acted in breach of his oath of office.
After receiving the panel’s report, then CJI Misra had asked Justice Shukla to either resign or seek voluntary retirement.
But Justice Shukla declined to do either.
SC orders warrant against sitting HC judge
Court Rejects Karnan's Plea To Meet CJI
The Supreme Court took a stern view on Friday of Calcutta high court judge C S Karnan defying its direction to present himself in court and, in an unprecedented decision, issued a bailable warrant aga inst the serving judge. Karnan's presence is required in the SC as he is facing contempt proceedings for levelling allegations against the SC and his former colleagues in the Madras high court.
The court rejected a request from Karnan to meet the Chief Justice and senior judges of the SC, noting that it could not be treated as a response to the notice issued to him. It also saw reports that the judge was passing orders from his house as a “prank“.
A seven-judge bench hea ded by Chief Justice J S Khehar decided it had had eno ugh of Karnan's defiant ways and acted tough as he refused to comply with two SC orders seeking his personal appearance despite a notice being served on him.
The court said it was left with no option but to issue a warrant against him to secure his presence in the court on the next date of hearing on March 31. This is the first time that a sitting judge of the higher judiciary is facing contempt proceedings and the apex court has been forced to issue a warrant against a judge. Karnan has consistently claimed that he is a victim of caste bias and ac cused his colleagues of discriminating against him. He has claimed that the proceedings against him are vitiated by the same sentiment.
Attorney general Mukul Rohatgi told the bench, also including Justices Dipak Misra, J Chelameswar, Ranjan Gogoi, Madan B Lokur, P C Ghose and Kurian Joseph, that Karnan had refused to mend his ways and there is no let-up in his contemptuous behaviour as he recently passed an order against the SC order on the “suicide note“ of former Arunachal Pradesh chief minister Kalikho Pul in which allegations were levelled against certain judges.
The AG said he had talked to the registrar general of the Calcutta high court, who confirmed that the order was passed by Karnan at his home but it was not sent to HC.
The bench, however, refused to take note of the incident, saying it might be a “prank“, but decided to lean on the judge. It issued a bailable warrant on a personal bond of Rs 10,000 and asked the West Bengal DGP to serve it to the judge.
The CJI said that Karnan had sought a meeting with him and fellow judges to dis cuss the allegations levelled by him but it could not be accepted as his response to the court's notice.
“It would be pertinent to mention that the registry of this court received a fax message from Justice C S Karnan, dated March 8, seeking a meeting with the Chief Justice and the judges of this court, so as to discuss certain administrative issues expressed therein, which primarily seem to reflect the allegations levelled by him against certain named judges. The above fax message cannot be considered as a response of Justice Karnan, either to the contempt petition, or to the notice served upon him,“ the bench said.
“In view of the above, there is no other alternative but to seek the presence of Justice C S Karnan by issuing bailable warrants. Ordered accordingly . Bailable warrants in the sum of Rs 10,000 in the nature of a personal bond to the satisfaction of the arresting officer be issued to ensure the presence of Justice Karnan in this court on March 31 at 10.30am,“ the bench said in its order after holding a brief 15-minute hearing.
The apex court will have no option but to issue a nonbailable warrant against Karnan if he fails to appear on March 31.
Justice Karnan orders cases against CJI, SC judges
Karnan orders cases against CJI, six SC judges & attorney general
Calcutta HC judge C S Karnan held a “court“ session at his residence within hours of the SC issuing a bailable warrant and “ordered“ that a case be registered under the SCST Act against CJI J S Khehar, other SC judges on the bench and AG Mukul Rohatgi. He also issued an “order“ directing the CBI to register and investigate cases against a host of judges from various courts for alleged corruption, rape and embezzlement.
He argued that it was an unprecedented move to hold court in this manner but added that “if the law keepers of the country have taken an unpreced ented route to malign me, I've the power to take an unprecedented route to fight back“.
On February 8, 2017, the SC had stripped Karnan of all judicial and administrative work and asked him to personally appear in court on February 13 to explain why contempt action should not be initiated against him for improper conduct and intemperate remarks.
Karnan observed that no contempt action, either civil or criminal, can be initiated against a sitting HC judge under Sections 2(c), 12 and 14 of the Contempt of Courts Act or under Article 20 of the Constitution. “Only a motion of impeachment can be initiated against a sitting judge of the higher judiciary before the Parliament after due enquiry under the Judges' Enquiry Act“. He added, “The SC shares equal power and rights with all the HCs of the country . It is not my master and I am not its servant. I will not appear before the SC.“
Flag and number plate for superior judiciary
Chief Justices, judges of higher judiciary
The Supreme Court has adopted an exclusive flag and plate that would be used for official purposes and for use on the official vehicles of its judges “In view of the need being felt to have a common flag on the official vehicles of the Chief Justice and judges of higher judiciary , the SC has also written to all high courts to consider adopting the same flag and plate for the official vehicles. The art work is also being shared with the HCs and may be used for the offi cial vehicles of Chief Justices and judges of the HCs by suitably replacing the name of Supreme Court of India in the art work by the name of respective High Court,“ the Supreme Court said in a press release.
The government and the judiciary
1973-75, curbing judicial dissent
In the 1970s, when the Indira Gandhi government was recruiting ‘committed’ judges to the Supreme Court, Justice H R Khanna was a judicial thorn, firmly committed to the Constitution. His decisive judicial vote in 1973 thwarted the government’s nefarious designs in Keshavananda Bharati case and helped the SC carve out the inviolable ‘basic structure’ of the Constitution.
The Emergency in 1975 robbed citizens’ of their fundamental rights. ADM Jabalpur or habeas corpus case presented an opportunity to then CJI A N Ray and Justices Khanna, M H Beg, Y V Chandrachud and P N Bhagwati to showcase where a judge’s commitment lay — to politicians or rule of law.
CJI Ray and Beg, both owing their places in the Supreme Court to Indira, were expected to agree with attorney general Niren De’s brutal argument that Emergency erased fundamental rights. But, surprisingly, intellectual stalwarts Chandrachud and Bhagwati succumbed to the government and agreed with Ray and Beg to put innocents at the mercy of a demonic administration.
Khanna, diminutive and soft spoken, penned a loud, lone dissent trusting his basic constitutional instinct to dwarf stalwarts and reiterate the essence of Keshavananda judgment. Emergency or no Emergency, fundamental right to life could never be suspended, he had thundered.
When ADM Jabalpur judgment was delivered on April 28, 1976, Khanna was number two in the apex court. He was to succeed Ray on January 28, 1977. In the second week of January 1977, then law minister H R Gokhale told Beg that the government intended to appoint him as CJI after Ray by superseding Khanna. Beg became CJI. Khanna resigned. He knew his dissent would cost him dearly.
If Khanna had harboured ambitions of becoming CJI, legitimately due to him, he could have gone along with the majority and earned the post. In his autobiography ‘Neither Roses Nor Thorns’, he said, “There arose a feeling of some satisfaction for having not swerved or faltered at the crucial time from what I believe was the correct course.” The judiciary remains beholden to him for his dissent against the government. He paid for it personally but preferred to nurture constitutional values.
Janata Party leaders, who were sensing power ahead of the March 1977 general elections, rushed to Khanna requesting him to contest. Proud of his independence, he declined.
The New York Times wrote a fitting editorial that eulogised Khanna. “If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first 18 years as an independent nation, someone will surely erect a monument to Justice H R Khanna of the Supreme Court,” it said.
Khanna declined to head the Maruti inquiry commission against Indira Gandhi and son Sanjay saying the public may not have confidence in his objectivity as he was superseded by her. He was made Law Commission chairman by Prime Minister Morarji Desai. But he refused a salary. He was virtually swept into the law minister’s office in 1979 by the Charan Singh government but his moral pangs forced him to resign in just three days.
No monument was ever erected for Khanna. But his full size portrait hangs in Court No.2 in the SC. It is probably to remind all SC judges who are in line to become CJI, and those who are not, about Khanna’s singular contribution to keep judiciary intact by insulating it from politicians.
Judges whom Collegium prevented from becoming CJI
In the recent past, Justices Ruma Pal, B N Agrawal and G S Singhvi became number two but not CJI. They may all have, like Justice J Chelameswar, harboured a grievance against possible conspiracy in the collegium that robbed them of the CJI’s post. But they all worked with dignity and retired gracefully while contributing towards strengthening rule of law.
The personality and actions of Chelameswar, number two in the SC now, contrasts with his predecessors. Others spoke through their judgments. Chelameswar did so through the media, first on January 12 when he led three senior judges to complain against the CJI allocating important cases to ‘junior’ judges.
Immediately after the presser at his residence, he met CPI leader D Raja. Was it coincidental? The very next day, Left parties began a campaign for removal of CJI Dipak Misra on the very grounds that Chelameswar had been secretively briefing journalists prior to January 12. When ambition clouds thinking, principles and independence probably take a back seat.
Chelameswar too had penned a meaningful dissent in the NJAC judgment, pointing out lacunae in the collegium process for selection of judges. He had rightly dissented and let the media know about his refusal to participate in collegium meetings, protesting non-recording of reasons for selection and rejection of candidates.
Sadly, he did not persist with his endearing and principled dissent. He quietly rejoined collegium meetings without letting the media know. Was it because the SC collegium was to consider appointment of six judges to the Andhra Pradesh HC?
Or, was it also because a certain HC judge, who was very close to him and who had given an affidavit at the time of appointment as an HC judge that he would never seek transfer back to Andhra Pradesh HC, was feeling homesick being in Kerala HC?
Chelameswar quickly came to terms with the opacity and arbitrariness of the collegium process and did his best to ensure six appointments to the AP high court despite serious objections from colleague judges. He also ensured that the homesick judge, despite his affidavit, was recommended to be transferred to AP HC.
Now, he seems worried whether Justice Ranjan Gogoi, who was led into the January 12 press conference by him, would be made CJI after the incumbent retires on October 2. Chelameswar needs to evaluate his actions, whether they were constructive or disruptive for the SC. And he must not worry about Gogoi. No government after 1977 has, or ever will have, the gumption to tinker with the line of succession for the CJI’s post.
The Congress and the judiciary
Congress party appears to be still cocooned in Indira Gandhi’s ideology and approach towards judiciary, especially the Supreme Court. The skullduggery behind the removal motion against CJI Dipak Misra has an uncanny resemblance to then minister S Mohan Kumaramangalam’s statement in Parliament on May 2, 1973, justifying the appointment of Justice A N Ray as Chief Justice of India, superseding three stalwart judges — J M Shelat, K S Hegde and A N Grover.
Kumaramangalam had said, “Certainly, we as a government have a duty to take the philosophy and outlook of the judge in coming to the conclusion whether he should or should not lead the Supreme Court (that is whether he should or not become the CJI).” It reflected Congress’s genetic desire to appoint those as judges who would always stay obliged, if not committed, to the party for the ‘favour’.
Reward of CJI’s post made Ray team up with M H Beg, Y V Chandrachud and P N Bhagwati and deliver a draconian verdict in A D M Jabalpur case murdering fundamental rights, including right to life, during Emergency. The lone dissenter, Justice H R Khanna, was stoned by the Congress government for failing in Kumaramangalam’s test of “philosophy and outlook” required of a judge to become CJI. Khanna was superseded. Justice Beg was made CJI to make him stay obliged to Congress.
Beg was Indira Gandhi’s favourite. When TOI criticised the A D M Jabalpur judgment and blamed Beg, he initiated suo motu contempt against then editor Sham Lal in January 1978, a month before his retirement as CJI.
Beg strived to explain that he did not actually rule in favour of Emergency and gave a 28-paragraph judgment [AIR 1978 SC 489] castigating TOI for motivated criticism. Beg failed to shed his pro-Emergency image. Two others on the bench, Justices N Untwalia and P Kailasam, in a short crisp paragraph said, “We are of the view that it is not a fit case where formal proceedings for contempt should be drawn up.”
Beg retired on February 22, 1978, to soon become a director on the board of National Herald group of newspapers. On
returning to power in 1980, Congress rained post-retirement assignments on him. In 1988, the Rajiv Gandhi government awarded Padma Vibhushan, the second highest civilian award after Bharat Ratna, to Beg for his contribution to law, a sterling example of which he gave in Jabalpur case.
This is how Congress has always treated judges. It always wanted judges like Baharul Islam, who joined Congress in 1956 and held several party posts till 1972. In April 1962, Congress elected him to Rajya Sabha. After unsuccessfully contesting Assam assembly elections in 1967, he was re-elected to Rajya Sabha in 1968 and aligned with Indira after the split in the party.
In January 1972, he resigned from the upper House and was made a judge of Gauhati HC. He retired on March 1, 1980, when Indira was back in power. She could not bear to see a Congress foot soldier, useful as a judge, go into retirement. Nine months after retiring as an HC judge, Islam was made an SC judge in December 1980.
Six weeks before his retirement and a month after giving a clean chit to then Congress chief minister of Bihar Jagannath Mishra in a forgery case, he resigned as SC judge and filed nomination as Congress candidate for Barpeta Lok Sabha seat. As Assam turmoil prevented the election, Congress elected Islam for a third RS term in June 1983.
Islam’s variation can be found in Ranganath Misra, who was tasked by the Rajiv Gandhi government to inquire into the 1984 anti-Sikh riots in Delhi after Indira’s assassination. It was public knowledge that thousands of Sikhs were killed by mobs allegedly led by Congressmen. Yet, Misra could not find any Congressman guilty. He vaguely blamed the police for lapses.
As an apt reward, the Congress government made him the first chairman of National Human Rights Commission in October 1993. In 1998, the party elected him to Rajya Sabha. In 2004, the Congress gave him successive chairmanship of National Commission for Religious and Linguistic Minorities and National Commission for SCs and STs.
Wish Misra had, for the purpose of anti-Sikh riots inquiry, adopted the approach of CJI V N Khare, who privately took pride in claiming to be the blue-eyed boy of Indira. Khare, who was awarded Padma Vibhushan by UPA-1, sternly dealt with the 2002 post-Godhra communal riots cases and admonished then Gujarat CM Narendra Modi to discharge “raj dharma’ — protecting the weak and punishing the oppressor.
In the 1990s, Congress law minister H R Bharadwaj finetuned the Kumaramangalam test for judges’ appointment and made sure most of the appointees remained loyal, first to him personally and secondly to the party. That is how Bharadwaj effectively controlled political puzzles through the judiciary.
In between the contrasting efforts of Misra and Khare, there was the removal motion filed in Lok Sabha against SC judge Veeraswami Ramaswami on corruption charges. The Congress machinery revved up to defend Ramaswami. Pressure was exerted on Speaker Rabi Ray not to admit the motion on the ground that Ramaswami had agreed to become chief justice of Punjab and Haryana HC to deal with terrorism related cases when none was agreeing.
The Speaker admitted the motion. Inquiry committee found him guilty of 11 out of 14 charges. The motion was debated. Kapil Sibal defended Ramaswami through an eloquent six-hour presentation, succinctly extracted by advocate Prashant Bhushan in his June 4, 1993, article in ‘Frontline’ magazine. Bhushan wrote, “Sibal took the House for a ride” by ridiculing the “motion for the removal of a judge for purchases of a few pieces of carpets or a few suitcases”.
What weighed with Congress, which defeated the motion by abstaining from voting, was that Rajiv Gandhi government had appointed Ramaswami, and his removal would besmirch the departed leader.
Congress is uncomfortable with any judge who does not meet the standards it has set over decades, be it appointment of judges or their removal. Now, on finding CJI Dipak Misra unbending to their unacceptable requests, be it Loya case or Ayodhya case, the party took shelter behind allegations made in a press conference by senior SC judges led by a disgruntled, ambitious and politician-friendly judge to move a motion for CJI’s removal based on ‘may be’ charges.
2014-17: an overview
Within three months of getting a massive mandate in the May 2014 elections, the Narendra Modi government introduced the National Judicial Appointments Commission (NJAC) Bill to scrap the much-criticised collegium system for the selection of judges to the high courts and the Supreme Court.
Parliament passed it unanimously . More than 20 states ratified it. The product of rare unanimity in the polity , NJAC was struck down as unconstitutional by the Supreme Court in October 2015. A whiff of executive presence through the law minister in the committee to select judges, the SC said, posed a grave danger to judicial independence.
In December 2015, the SC acknowledged heavy criticism of opaqueness and arbitrariness in the collegium system and handed the Centre an impeding device by asking it to frame a new memorandum of procedure (MoP) to fine tune the one that was two decades old.
Till January 2015, cordiality in the relation between the government and the judiciary was evident from the then CJI H L Dattu's the then CJI H L Dattu's lavish praise on Modi. He had described Modi as a “good leader, a good human being and a man with foresight“. He had also said: “The government has not said no to any proposal given by me. Till date, their response to demands of judiciary has been very good.“
The stinging blow that was striking down the NJAC Act, hyped by the government as a revolutionary step to make judges' appointments transparent, continues to hurt the Modi government. Despite this, the Modi government created a record by appointing 126 HC judges in 2016. But, with vacancies crossing the 40% mark in HCs, the judiciary kept accusing the executive of stalling the collegium's recommendations.
In April 2016, the then CJI T S Thakur threw a tearful barb at the government at a public meeting in the presence of PM Modi, accusing it of stalling the appointments. Heading a bench in the SC, the then CJI Thakur took up the matter on the judicial side and berated the executive for not listening to the cries of justice of those languishing in jail as their cases were not being taken up due to the lack of judges.
The Centre stood its ground, telling the court that the SC itself had asked for the finalisation of an MoP for a more transparent system on appointment of judges. The judiciary has since finalised the MoP, but the government is yet to sign and seal it.
If the NJAC was a clash on constitutional principles, the NDA government suffered two quick political reversals in 2016 as the SC annulled President's Rule in Arunachal Pradesh and Uttarakhand by reviving the dismissed Congress-led governments.
The SC heaped discomfort on the Modi government by undertaking detailed scrutiny of two of its pet decisions -demonetisation and Aadhaar.Both the cases are still pending. A lot is at stake for the government in these two policy decisions, one linked to unearthing black money and the other to make transparent almost all transactions.
What came as the last straw in the uneasy relationship was the SC's steadfast refusal to review its mid-2016 decision making it mandatory to register an FIR against armed forces personnel in each encounter death, even if it happened in `disturbed' areas where the Armed Forces Special Powers Act is imposed.
The SC refused a relook at the judgment despite the Centre expressing apprehension that a war-like situation prevailed in militancy-hit areas, and subjecting the armed forces to FIRs and prosecution would make it difficult for them to protect the country .
But, the seemingly uneasy three-year relation had some silver-linings. The SC and the Centre were on the same page when it came to scrutinising the accounts of NGOs that receive government funds.They were also one on the constitutional validity of criminal defamation provision (section 499500) of IPC.
What came as a big relief for the Modi government was the SC's decision to dismiss a PIL seeking probe into a corporate diary recovered by income tax officials noting alleged bribes paid to political leaders, including the former Gujarat chief minister.
2018:Supreme Court bypassed by Central Govt./ Karnataka
Justice Chelameswar’s view
Slams Karnataka CJ, Says Govt ‘Intruding & Intimidating’ Judiciary
After leading an unprecedented press conference of senior SC judges against CJI Dipak Misra in January, Justice J Chelameswar has sought a debate with all his colleagues in the apex court on ‘relevance of judiciary’ after accusing the Centre and a ‘loyal’ Karnataka chief justice Dinesh Maheswari of bypassing the SC to attempt scuttling appointment of a HC judge.
Justice Chelameswar has written a five-page letter to the CJI and the other 22 SC judges venting his anguish, disappointment and shock that Justice Maheswari, at the biding of the law ministry, sought to improperly reopen a sexual harassment complaint against judicial officer P Krishna Bhat, despite being cleared of charges by the then CJI in 2016 ahead of being recommended as a HC Judge.
“Surprisingly, the government selectively withheld Bhat’s elevation and accepted the remaining five others though all five are juniors to him,” Justice Chelameswar said. “The Karnataka CJ has been more than willing to do the executive bidding, behind our (SC collegium’s) back,” he said.
He slammed the law ministry’s recent practice of selectively acting on the recommendations of the collegium, a system against which he had recorded a strong dissent in the famous NJAC judgement in October 2015. He said: “For sometime, our unhappy experience has been that the government accepting our recommendations is an exception and sitting on them is the norm.”
“Inconvenient but able judges or to be judges are being bypassed through this route,” he said. The Centre has been sitting on the collegium’s January 11recommendations for appointment of Uttarakhand chief justice K M Joseph and senior advocate Indu Malhotra as judges of the SC.
Justice Chelameswar made stinging comments on the law ministry for directly sending an ‘improper and contumacious’ letter to the HC CJ, bypassing the SC. He said: “The Chief Justice (Maheswari), establishing himself to be more loyal than the King, acts on it (law ministry’s letter), convenes a meeting of the administrative committee, and decides to reinvestigate the issue, thus burying the previous chief justice’s findings on the same issue, given at our asking.”
“We only have to look forward to the time, which may not be faroff if not already there, when the executive directly communicates with the high courts about the pending cases and what orders to be passed. We can be happy that much of our burden is taken away. An honourable chief justice like Dinesh Maheswari may perhaps be ever willing to do the executive bidding, because good relations with the other branches is a proclaimed constitutional objective... Let us not forget that bonhomie between the judiciary and the Government in any state sounds death-knell to democracy. We both are mutual watchdogs, so to say, not mutual admirers, much less constitutional cohorts,” he said.
The January 12 press conference at Justice Chelameswar’s residence, by him and three most senior judges, had targeted the CJI for allotting hearing on petitions seeking an independent probe into judge B H Loya’s death in alleged suspicious circumstances in Nagpur in 2014 to a ‘junior judge’ and the alleged attempt to give a ‘particular judge’ serious cases of national importance for a verdict favourable to the Centre. The ‘junior judge’ later recused himself from hearing petitions on Loya, but not before giving a vent to his ire against the four seniors in a morning meeting of SC judges.
Justice Chelameswar had earlier set the bells ringing by unilaterally constituting a five-judge bench, a power vested only with the Chief Justice of India, for hearing of a medical scam matter. Both Loya case and the medical scam issue have found mention in the draft removal motion being prepared for tabling in Parliament by lawyer-politicians in the opposition. A year and half ago, he had also recused from attending the collegium meetings protesting lack of transparency and non-recording of views about those in the zone of consideration.
He later rejoined the collegium and was party to the transfer of a judge from Kerala HC to Andhra Pradesh HC despite the judge earlier giving an undertaking, at the time of his appointment, that he should never be posted as a judge to the AP HC.
The Government rebuttal
Top Union government functionaries on Thursday slammed Justice J Chelameswar for twisting facts in a sexual harassment case involving Karnataka district judge P Krishna Bhat and said it is ‘astonishing’ the complainant lady magistrate was neither called to depose in an inquiry nor were the apex court’s Vishaka guidelines followed.
Outlining a sharp and ‘noholds-barred’ reaction from the law ministry and department of justice, sources explained why the ministry wrote directly to Karnataka chief justice Dinesh Maheswari to ‘look into’ the sexual harassment complaint against Bhat by the lady judicial magistrate.
In a letter to all the judges of the SC, Chelameswar, the seniormost judge, has taken exception to the Centre writing directly to Justice Maheshwari regarding the collegium’s recommendation to elevate Bhat to the HC. Chelameswar, who had in January held a press conference to highlight grievances against CJI Dipak Misra, wrote that while five of the recommendations for elevation were accepted by the government, it decided to block Bhat and then wrote directly to Justice Maheshwari instead of taking up the matter with the collegium.
In his letter to the CJI, also marked to all SC judges, he said the judiciary has lately been accused of yielding to the executive, which has been nixing appointment of ‘inconvenient’ judges.
Sources gave a perspective to what “was not mentioned” in the five-page letter by Justice Chelameswar, who has severely criticised the law ministry and Justice Maheswari for acting in league to scuttle appointment of district judge Bhat as HC judge by attempting to reopen a twoyear-old sexual harassment complaint of the lady magistrate.
Chelameswar said then chief justice of Karnataka HC C S K Mukherjee had inquired into the complaint and in his report to the SC collegium termed it “incorrect and concocted” and that the magistrate’s allegations were “only to malign Bhat” to nix his appointment as an HC judge.
Government sources said it is unthinkable that the same SC, which had laid down stringent mandatory guidelines to sternly deal with sexual harassment complaints at workplace, should cursorily brush aside the lady magistrate’s sexual harassment charges and brand them “incorrect and concocted’ through an “unheard of discrete inquiry process’ conducted by then Karnataka CJ S K Mukherjee.
“It is unheard of also that a sexual harassment complaint by a judicial officer against her superior got decided without the inquiry officer thinking it fit to hear the complainant’s version even once. Does this reflect the sensitivity the SC had attached in the Vishaka case to adjudication of sexual harassment complaints? Is this the example being set by the highest citadels of justice by cursorily discarding a magistrate’s complaint,” said a source.
“What kind of message is being sent to other subordinate lady judicial officers when sensitive complaints are brushed aside through discrete inquiries by the HC CJ and accepted by the SC collegium? Worse, the person accused of sexual harassment is being persisted for being appointed as a judge in the constitutional court,” a source said.
The 15-page typed and sworn complaint by the lady magistrate, copy of which is with TOI, narrates the plight of an unmarried woman judicial officer and is of such nature that it at least warrants a thorough inquiry and not a discrete one to give clean chit to a district judge. She has accused Bhat of repeatedly forcing her to visit him alone late at night.
“This kind of complaint against a HC judge at the very first instance would require the CJI to set up of an in-house inquiry. But, the same SC collegium thought it fit to go by a discrete inquiry which did not follow the Vishaka guidelines,” said a source.
When the SC collegium buried the complaint and made the complainant appear a liar, the lady officer complained to the President and the Prime Minister. Despite this, successive CJIs had requested the government to appoint Bhat as HC judge as per the earlier recommendation made after a clean chit to him through ‘discrete’ inquiry. The PMO forwarded the complaint to the law ministry, which decided to write to the HC CJ, given the earlier stonewalling by the higher judiciary.
Sources said Chelameswar appears either “blissfully unaware of the facts” or “not bringing them up in his letter” while criticising the Centre for meddling in the affairs of the judiciary. “He would not have taken up the cause of a person against whom a sexual harassment charge has not been inquired as per the SC’s laid down guidelines if he was aware of the facts,” said a source.
The governments of the states and the judiciary
2020: cm levels serious allegations against HC CJ, next CJI
The Supreme Court is facing yet another controversy, with Andhra Pradesh CM Y S Jaganmohan Reddy levelling serious allegations against Justice N V Ramana who is scheduled to take over as Chief Justice of India from the incumbent, Justice S A Bobde, in April next year.
The young CM has, in essence, alleged a nexus between his principal rival, his predecessor N Chandrababu Naidu, and Justice Ramana who also belongs to Andhra Pradesh. In his letter to CJI Bobde, Reddy has alleged that Naidu helped Justice Ramana’s family make fast money and the latter has sought to return the favour by influencing the high court to impede the functioning of his government. At the centre of his litany is the insinuation that Justice Ramana’s family made a killing by purchasing land in Amaravati, which Naidu had planned to develop as the state capital in the wake of the loss of Hyderabad to Telangana. A perusal of documents by TOI showed that daughters of the SC judge, in fact, bought land from a local property dealer just like thousands of others who purchased land in Amaravati after the formation of the separate state of Telangana had looked inevitable and because of the realisation that Andhra Pradesh would not be able to hold on to Hyderabad.
Also, the prospect of Amaravati being developed as the new capital predated the formation of the Naidu government. In February 2014, then Union minister Panabaka Lakshmi had announced the choice of Amaravati, in the Guntur-Vijayawada region, as the new capital of Andhra Pradesh after its bifurcation and Justice Ramana and his daughters did not need any exclusive tipoff from the TDP government about the certain prospect of appreciation of investments in land there. They bought land in June 2015.
The sequence of events leading to Reddy’s sensational letter to the CJI has also been linked to the timing of the registration of FIRs against Justice Ramana’s daughters and other alleged beneficiaries of the Amaravati land scam. The AP government moved just a day before a bench headed by him pushed for fast-tracking trials in criminal cases against MPs and MLAs, serving as well as former.
Many see the “coincidence” as significant, their estimate echoing the suggestion that Justice Ramana weaponised the PIL seeking fast trial of cases against lawmakers facing serious criminal charges, which could have implications for the AP chief minister who faces several cases. In this hurry to forge a linkage, what has been glossed over is the chain of events which shows that the case landed before a bench headed by Justice Ramana because of sheer circumstance. For, the decision to expedite trial of cases against influential and resourceful politicians which was progressing, if at all, at a snail’s pace, was taken on December 4, 2018, by the then CJI Ranjan Gogoi. After his superannuation, it got assigned to the CJI Bobde. However, as his daughters had appeared for parties involved in the case, he on March 2 entrusted monitoring of the PIL by Ashwini Kumar Upadhyay for expeditious trial of cases against politicians to a bench headed by Justice Ramana. The bench, comprising Justices Ramana, Surya Kant and Hrishikesh Roy, on September 10 asked the Centre to respond to a new prayer seeking lifetime ban on convicted politicians on the same lines as convicted bureaucrats getting barred from government employment. The SC was informed by amicus curiae Vijay Hansaria that as many as 4,442 criminal cases were pending against former and sitting MPs and MLAs across states. The bench fixed September 16 for further hearing on the matter.
“A total of 4,442 cases are pending against MPs/ MLAs (sitting and for mer) in different courts. In 2,556 cases, sitting legislators are accused persons. There are 413 cases in respect of offences, which are punishable with imprisonment for life, out of which in 174 cases, sitting MPs/ MLAs are accused,” the amicus had informed the SC.
The September 16 order of the bench led by Justice Ramana set off alarm bells for politicians in power as it asked chief justices of all HCs to formulate action plans on requirement of special courts exclusively for trial of criminal cases against present and former legislators while keeping in view the following parameters: total number of pending cases in each district, number of special courts required for speedy trial, existing number of special courts, number of judges and subject categories of the pending cases, tenure of the judges to be designated, number of cases to be assigned to each judge, expected time for disposal of the cases, distance between the designated courts, and requirement of infrastructure.
But the trouble facing politicians cannot be put down to an initiative by Justice Ramana. Reddy has also accused Justice Ramana of influencing a series of orders of AP high court which have gone against his government. While it is difficult to comment on the merit or lack of it on each order, the insinuation that a single SC judge can have a vice-like grip over a whole set of judges, besides being an indictment of the entire higher judiciary, betrays ignorance of the complex dynamics of the administration of justice, including appointment of judges who made it to the bench at different points in time and who may not be having the same predilection, personal or political.
On October 6, the bench had asked for additional information from HCs in a tabulated form to enable passing substantive orders to fast-track long pending criminal trials that had been put on the back burner because of the influence as well as money and muscle power of politicians. This triggered further reaction in the form of Reddy writing a letter to the CJI.
High Court judgments
Jharkhand: CJ’s order overruled days after retirement
J'khand CJ retires, finds his order overruled
New Delhi A bench headed by Jharkhand chief justice P K Mohanty on June 7 ordered the audit of three institutions Jharkhand State Legal Services Authority, the state judicial academy and the National University of Study and Resear ching Law, Ranchi. Nothing unusual but for the fact that the chief justice was the patron-in-chief of the first two bodies and chancellor of NUSRL.
But days after Justice Mohanty retired, on June 20, another bench stopped the audit, saying it was ordered without notice to the institutions and could have an adverse effect on their reputation. As chief justice, Justice Mohanty had received a letter from an individual, Animesh Kumar, on May 5 alleging mismanagement and misutilisation of funds by JHALSA, the judicial academy and NUSRL. Taking suo motu cognisance of the letter and converting it into a writ petition, the bench of Justices Mohanty and Gupta on June 7 ordered, “Having regard to the nature of allegations and for ensuring transparency in administration and in the interest of justice, it is deemed proper that the accounts of the aforesaid institutions be audited by the principal accountant general, Jharkhand.“ The bench also asked the comptroller and auditor general to monitor the auditing.
As the head of these institutions and as chief justice of the HC, Justice Mohanty must have been aware of the effect the order passed by him and Justice Amitav K Gupta would have on the reputation of these institutions. Days after Justice Mohanty's retirement, applications were filed by these institutions for recall of the June 7 order. A bench of Justices S Chandrashekhar and Gupta found merit in the applications and quoted a 1863 English court judgment to say , “Even God himself did not pass sentence upon Adam before he was called upon to make his defence.“ The applicants, through counsel A R Choudhary , said the HC could not have taken suo motu cognisance of an anonymous letter, making “sweeping allegations against the chief justice of the HC and the institutions, of which the chief justice is the patron-in-chief or chancellor“. State counsel D K Dubey supported Choudhary.
In a classic case of shooting the messenger, the bench headed by Justice Chandrashekhar said, “We have carefully seen the contents of the May 5 letter by one Animesh Kumar, who has neither disclosed his identity nor parentage nor mentioned his address. Any harm to the applicant institutions would definitely erode public confidence in these institutions and it would not be in public interest. After all, one lives by his reputation.“
The questions that arise are: Was Justice Mohanty , as chief justice, unaware of the impact his auditing order would have on the reputation of the institutions which he headed in his exofficio capacity? And, even if the chief justice-headed bench's order was passed without issuing notice, why would another bench completely recall it and close it instead of issuing notice and seeking the response of the institutions? Would the reputation of the institutions, where alleged mismanagement and misutilisation of funds have taken place, not suffer if an order for auditing by the chief justice is withdrawn?
Karnataka: Quashing circulars issued by CJ
HC quashes three circulars issued by CJ Dinakaran
Karnataka HC has struck down three circulars issued by its Chief Justice P D Dinakaran against whom allegations of land-grabbing have been raised. The first circular that was quashed by a division bench, comprising Justice N Kumar and Justice Srinivasagowda yesterday, concerned the Chief Justice’s power to hear cases filed by employees of high court and judicial officers against his administrative decisions.
The second circular that was struck down related to the sitting Chief Justice’s jurisdiction in deciding which circuit bench should hear a particular case.
The judgement paves the way for litigants in north Karnataka to approach the principal bench directly, which they could not do earlier. According to the first circular, cases by court employees and judicial officers challenging the Chief Jutice’s orders were posted to hall one, where the CJ sits.
Allowing a petition filed by M S Poojari, a peon in the high court, the court said the circular cleared the way for CJ to be a judge in a case where he is also the litigant.
Calcutta: Judge changes mind, and order
The Times of India, June 8, 2016
Subrata Chattora Calcutta high court was witness to a wrangling match between two judges in the courtroom perhaps never seen since its inception in 1862.The spat was over a change made in the order delivered earlier in open court by one of the judges. The senior judge of the division bench even offered to resign after coming to know about the alteration, saying that making such changes without informing him was illegal. A division bench of justice Ashim Kumar Roy and C SKarnan had on May 20 turned down the bail petitions moved by IVRCL senior general manager Mallikarjun Rao and nine others accused in the Vivekananda Flyover collapse case. They have been in jail since April 1after being remanded by a lower court. Justice Karnan had a change of mind more than a fortnight after he had agreed with his senior, Justice Roy, in turning down the bail appli cation. According to Justice Roy , the other judge retired to his chamber on Monday afternoon without taking leave from his senior and made amends to the bail rejection order. While striking off his agreement, Justice Karnan took a contrary stance and held that all of the accused should be granted bail.
The senior judge lost his calm when he got to know about the change. On Tuesday , Justice Roy stopped in front of the judge's seat and asked Justice Karnan to sit first. “You take the seat first because you broke decorum yesterday by leaving the courtroom,“ Justice Roy said.
Justice Karnan was courteous and requested the senior to take seat. “Please take your seat first,“ he said. According HC sources, Justice Roy later called on Chief Justice Manjula Chellur and told her about the incident.
Meghalaya: Sr lawyer tag for former CJs, judges
Meghalaya HC's Controversial Ex-CJ Uma Nath Singh Leads SC List Of 26
Even as senior advocate Indira Jaising's petition questioning the rationale behind designating some lawyers as senior advocates in April last year remains pending, the Supreme Court on Monday said it had designated 26 former chief justices and judges of high courts as senior advocates.
First on the list of freshly designated senior advocates is former Meghalaya HC chief justice Uma Nath Singh.There are two petitions pending in the SC challenging decisions of the HC headed by Justice Singh.
The first petition by Shillong Bar Association questioned the rationale behind a decision by the Meghalaya HC headed by Justice Singh to designate Delhi-based la wyers as senior advocates.The SC entertained this petition in January and issued a notice to the Meghalaya HC registrar general.
The second petition by a common man from Meghalaya challenged the retirementeve orders by a bench headed by Justice Singh, directing the state to provide him with `Z' category security even after retirement and treat him as a guest of the state whenever he visited Delhi and Shillong. The SC has kept this petition in abeyance after Meg halaya said it would challenge these orders.
Former judges of Allahabad HC -Satish Chandra, Ravindra Singh, Sunil Hali and Virendra Vikram Singh -were designated as seniors at the SC's full court meeting on August 31.
Other retired judges to get the senior advocate tag are Asim K Banerjee (Calcutta HC), K C Bhanu and P Chandra Kumar (AP and Telangana HC), Anil Kumar, Kailash Gambhir and J M Malik (Delhi HC), Subhash Chandra Jha, Dharnidhar Jha and V N Sinha (Patna HC), K C Puri, Arvind Kumar, B B Parsoon and S D Anand (Punjab and Haryana HC), B D Rathi and Sambhoo Singh (MP HC), Kamal Mehta (Gujarat HC), A K Rajan (Madras HC), Hasnnain Massodi (J&K HC), V R Kingaonkar (Bombay HC) and I M Quddushi (Chhattisgarh HC).
The SC did not designate a single lawyer as senior advocate since its decision on April 23 last year was challenged by Indira Jaising, the first woman additional solicitor general who represented the government during the UPA regime. The SC had entertained her petition in July last year .
The court had said, “We are aware of the problem. All is not well. But let us assure you that there is no intention to deny a deserving candidate or confer it on an undeserving lawyer.“ It had explained why the SC had changed the procedure for designating a lawyer as senior advocate from open house to secret ballot in 2014.
“There were times when judges found it difficult to object to some names. So, it was felt that they could express themselves without reservation through secret ballot,“ it had said.
Jaising had said, “There is no criteria laid down for determining excellence in advocacy and no rational nexus between the persons designated and their excellence or no rational reason for rejection of persons of eminence and ability .
“This has resulted in denial of designation of those advocates who have domain expertise in matter such as PIL, human rights, family law, international law and other specialised subjects.“
High Court orders at cross purposes with SC/ other HCs
2018: K Dhanalakshmi
Four Months After SC OKs CBI Case, Allahabad HC Rules Against Action
UP-cadre IAS officer K Dhanalakshmi’s case is a classic example of various forums of judiciary, unknown to each other, passing orders which work at cross purposes while dealing with alleged corruption at high places.
In 2011, the CBI had registered an FIR against the 2000-batch IAS officer accusing her of amassing assets worth Rs 3 crore disproportionate to her income. At the time of registration of FIR, she was posted as director in the Union ministry of social justice. She had also served as private secretary in the office of former external affairs minister S M Krishna.
The Delhi high court’s Justice Ved Prakash Vaish had quashed the FIR against her on April 20, 2015. On CBI’s appeal, an SC bench of Justices Ranjan Gogoi and A M Sapre summoned the CBI case records and perused details and findings of the probe. Setting aside the HC order, the SC on October 19, 2016, said: “We consider it appropriate to take a view that the HC was not justified in terminating the proceedings at the stage at which it is quashed. The HC ought not to have done so but should have allowed the proceedings to be brought to its logical conclusion in accordance with law.”
The SC direction to bring “proceedings to its logical conclusion’ against Dhanalakshmi meant the trial be held against her based on evidence brought on record by the CBI. But the IAS officer, who had engaged top lawyers Kapil Sibal, Salman Khurshid and K V Vishwanathan in the SC, had other ideas, when it was time for her possible empanelling for post of joint secretary in the Union government.
Four months after the SC verdict, she moved the Allahabad HC for a direction to the Centre to consider empanelling her. A bench of Justices Narayan Shukla and S K Singh-I mentioned in their order about the pendency of CBI FIR against her but brushed it aside saying there was no impediment for her empanelling as vigilance department had given no objection certificate on November 8, 2010, much prior to the registration of FIR in 2011.
The HC bench went on to record that “no other hurdle has been shown to us for her empanelment/appointment to the post of joint secretary”, without even mentioning about the huge hurdle put by the SC by ordering the case against her to be taken to logical conclusion.
Not resting at that, the HC took up the case again five days after passing the above order and recorded that “no consequential action shall be taken on the basis of the FIR”, accepting her counsel’s submission that it was lodged without taking sanction from the UP government. This possibly brought to naught the SC’s green signal for her prosecution in the case in accordance with law.
2023: Gujarat High Court
New Delhi: The Gujarat HC once again came under criticism from the Supreme Court for passing an order to “counterblast” the order of the apex court that had disapproved of the HC’s lackadaisical approach in dealing with the plea of a 25-year-old woman for medical termination of pregnancy.
A bench of Justices B V Nagarathna and Ujjal Bhuyan, which had passed observation against the HC for causing delay in deciding the abortion plea and dismissing it without uploading the order, expressed displeasure with the Gujarat HC when it was informed that the HC had passed a reasoned order on the same day after the hearing in the apex court. “We do not appreciate the high court’s counterblast to the Supreme Court’s orders,” the bench said.
SC blasts Guj HC, says no court in India can pass an order like this
What is happening in the high court of Gujarat? Do judges reply like this to a superior court’s order? We do not appreciate this. These kinds of attempts are being made by high court judges to circumvent something we have said. There is no need for any judge of the high court to justify its order,” the bench asked the Gujarat high court.
The court expressed surprise on how the HC can pass order in a case that has already been disposed of, and that too, without giving notice to the party. “No court in India can pass an order like this on a Saturday against a superior court order. ...There was no need for the high court to justify,” the bench said.
Solicitor General Tushar Mehta, appearing for the state government, submitted that there was some misunderstanding due to which the order was passed by the judge and pleaded the court not to pass any observation against him. The bench said it was not passing observation against the judge but the way in which the matter has been dealt with. “No judge can pass an order as a counterblast to our order. This appears to be that,” the bench said. The court, thereafter, took note of the fresh medical report of the petitioner which favoured termination and allowed her to undergo abortion. Allowing her plea, the bench said pregnancy outside marriage, particularly after sexual assault, is injurious to the mental health of a woman
During a special hearing, the bench had pulled up the HC for not urgently deciding on the abortion plea of the 26-week pregnant woman and posting the hearing 12 days after getting a medical report which favoured termination. It had directed that the medical exam be done once again as the pregnancy was more than 27 weeks.
Judges; their courtroom behaviour
C Ravichandran Iyer vs Justice A M Bhattacharjee
Judges dispense justice. Lawyers seekjusticefor litigants. Judges and lawyers share the common goal of ensuring justicetoevery litigant. Given the shared responsibility, one would naturally expect that they share a cordial relationship inside courtrooms to help expand and enrich the legal knowledge base for efficient and effective dispensation of justice.
We had written about a small band of advocates who have perfected the art of ‘I am right’ belligerence to browbeat judges and attempt to extort desired results. This minuscule number of lawyers has masteredthe art of discrediting a judge by questioning his integrity through insinuations stemming solely from suspicion. A judge is a sitting duck for such antics as he exercises moral authority, so very integral and intrinsicto judicial authority, only on the basis of his credibility.
But there is a small number of judges, whose behaviour inside courtrooms towards lawyers is way below the desired level. Through the years, one has observed that pendency of cases in courts has plateaued at the three core mark. The existing strength of judges, despite huge vacancies in all three tiers of judiciary, has been able to dispose of the cases that get filed in courts every year.
Monstrous pendency figures and constant criticism of delayed justice do play a role in leaving some temperamental judges irritated when a lawyer attemptstoexplain his client’s case in detail. True, the case has been decidedby thetrial court and the high court and hence does not require explaining at great length.
But the Supreme Court being the final citadel of justice, can a lawyer be faulted for attempting to get a fair hearing to convince the judge as well as his client that no one is condemned unheard in the apex court.
For a wronged litigant, the SC is the last hope for justice. He goes there with a prayer in his heart. When he finds a certain judge deriding his lawyer and not allowing him to argue the case by frequently interrupting him with sarcasm, his hopes turn into fear. When a litigant startsfearing a court because of a certain judge’s courtroom behaviour, the core philosophy of the justice delivery system gets breached.
A judge’s unwarranted hostility or disdainful attitude seriously hampers a lawyer’s ability, as an ‘officer of the court’ or as a ‘minister of justice’, to render meaningful assistance to the court in the dispensation of justice. If the courts represent the wheel of justice, then judges are its cog, the lawyers its spokes and the litigants the rim of the wheel. Allfour are inalienable tothe justice delivery system.
But who will judge a judge’s judicial behaviour? The SC in C Ravichandran Iyer vs Justice A M Bhattacharjee [1995 SCC (5) 45] gave a detailed analysis on this sensitive subject.
It said, “It is a basic requirement that a judge's official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than expected of a layman and also higher than expected of an advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher than those deemed acceptable for others. Therefore, the judge can ill afford to seek shelter from the fallen standard in society.
“Bad behaviour of one judge has a rippling effect on the reputation of the judiciary as a whole. When theedifice of judiciary is built heavily on public confidence and respect, the damage by an obstinate judge would rip apart the entire judicial structure built in the Constitution.
“Bad conduct or bad behaviour of a judge, therefore, needs correction to prevent erosion of public confidence in the efficacy of judicial process or dignity of the institution or credibility to the judicial office held by the obstinate judge.”
In thesame judgment, the SC had provided a way out for advocates, who consistently suffer indignant behaviour or ill treatment at the hands of a particular judge. It said, “In all fairness to the judge, the responsible officebearers (of a bar association) should meet him in camera after securing interview and apprise the judge of the information they had with them.
“If there is truth in it, there is every possibility that the judge would mend himself. Or to avoid embarrassment to the judge, the office-bearers can approach thechief justice(of that high court or the SC) and apprise him of thesituation with material they have in their possession and impress upon the chief justice to deal with the matter appropriately.”
Lawyers are best placed to comment on a judge’s courtroom conduct, which even Parliament is barred from discussing as a mark of respect to judicial independence. To use the power of contempt of court, conferred on the judiciary to maintain its independence and authority, to silence criticism of a judge’s conductin a courtroom would be counter-productive.
What is needed is periodic dialogue between bar leaders and the Chief Justice of India and his colleague judges to strive for improvement in judges’ behaviour in court. Leaders of the bar must keep in mind the larger interest — efficacy of judiciary to dispense justice — while suggesting correction of a judge’s court behaviour. This will help maintain the dignity of courts and public faith in judiciary.
Judges who became politicians
Judges who delivered famous judgements
Justice Rajiv Sharma
Justice Rajiv Sharma, who delivered landmark orders such as granting living entity status to Ganga and the animal kingdom, was appointed the acting chief justice of the Uttarakhand high court.
Justice Sharma was appointed the acting CJ last week. Born in October 1958, Justice Sharma has so far heard more than 75,000 cases. After joining the Himachal Pradesh HC in 2002, he was appointed additional judge in April 2007 and became a permanent judge in March 2013. He was then transferred to Uttarakhand HC where he assumed office in September 2016.
Apart from granting living entity status to Ganga and the animal kingdom, Sharma has delivered judgments abolishing the 150-year-old patwari system in Uttarakhand and solitary confinement of death penalty convicts.
The judge was part of the division bench that cracked down on encroachments in Dehradun and ordered the state government to remove all illegal structures within four weeks. Another of his recent judgments — again as part of a division bench — was the order to rescue elephants being used for joyrides and safaris in resorts and forest reserves within 24 hours and take under state protection.
The chief justice has taken a strict stand on protection of wildlife. In his latest remarks on Friday, he pulled up the Uttarakhand forest department over its lack of concern for wildlife safety and said, “If you cannot protect tigers and elephants, we will ask the Centre to denotify national parks of the state and then you can create a race course and run cars over there.”
Meghalaya CJ, Laloo cases
The Times of India, Sep 06 2016
Aam aadmi has no say in ex-judges' security, says SC
After evaluating the threat perception of former Meghalaya high court chief justice Umanath Singh, central security agencies found no perceptible security threat to him, who in his last days as CJ had suo motu ordered `Z' category cover for himself even after retirement. Three orders passed in December and January by an HC bench headed by Singh was challenged by a common man, Sajay Laloo, in the Supreme Court, which has openly expressed dislike towards common citizens questioning security for retired judges.
During the last hearing, an SC bench headed by Chief Justice of India T S Thakur had virtually stopped Laloo's counsel, senior advocate Vijay Hansaria, from arguing the matter. It had asked central agencies to evaluate the threat perception of the retired CJ and send the inputs to the Meghalaya government.
Central agencies told the state that incidents cited by the former CJ as cause for apprehension to his security were not serious, indicating that there was no need for `Z' category security cover. In between, Meghalaya's counsel Ranjan Mukherjee had requested the court for in-chamber hearing of the issue because of its sensitivity . This was stridently opposed by Hansaria.
Hansaria had barely started arguments that the bench headed by Thakur snapped at him and asked him to sit down. “This is a matter between the judiciary and the Meghalaya government. A common man has no say in this,“ the bench said.
Though slighted by the bench, an unfazed Hansaria questioned the bench's perception about a common man's locus standi in questioning unreasonable orders passed suo motu by an HC bench.
But the bench told him to “sit down“ and clarified it would hear only the Centre and Meghalaya. Hansaria walked out of the court saying, “If that is the case, then I would rather go out. Let the court decide what it wants.“
Additional solicitor general Maninder Singh told the court that central agencies had evaluated the security requirement of the ex-CJ and sent the inputs to the state.
The bench, which was initially inviting the counsel for a chamber hearing, chided the Meghalaya government for not challenging such orders and, thus, giving an opening to “interlopers“ to jump into the fray with PILs.
“Stand upfront and say these are wrong orders and challenge them in the Supreme Court. Because the state government did not challenge these orders, it has given fodder to the common man to challenge it in the SC,“ the bench said. Meghalaya's counsel assured the court that the state would challenge the orders within three weeks.
North- East postings
No special monetary allowance
The Union law ministry has informed the Gauhati high court that judges posted in the four high courts in the northeast are not entitled to the special monetary allowance given to officers of all-India services postedin the region.
The ministry cited the seventh pay commission award, where a recommendation to extend the special allowance to other services was not accepted by the government. “The proposal for grant of additional monetary incentive allowance to judges of high courts of northeastern states has not been agreed to,” the department of justice in the law ministry informed the registrar general of Gauhati HC.
The judges of HCs in the northeast had demanded a special allowance at the rate of 25% of their basic salary in addition toother perks, as granted to officers of all-India services to motivate them for a “longer period”.
The working strength of the HCs of Gauhati, Meghalaya, Manipur and Tripura is 24 against an approved strength of 37.
Penalising a judge for her/ his judgements
Justice Pushpa Ganediwala/ 2021
Once part of landmark judgments, judge grounded for debatable ones
Public Outcry Triggers Apex Court Censure
Last month, when Justice Pushpa Ganediwala — sitting additional judge of the Nagpur bench of the Bombay high court — ruled that groping breasts while the girl had her clothes on was not a ‘sexual assault’ as there was no skin-to-skin contact, it left people shocked and activists up in protest. There was truce only after a Supreme Court bench, led by Chief Justice of India Sharad Bobde, stayed the verdict.
The Supreme Court collegium also took the unusual step of withdrawing its recommendation to the Centre proposing to elevate her as permanent judge.
But, Justice Ganediwala, 51, who began her career as a lecturer in colleges in Amravati in Maharashtra before she became a judge, had more in store. From ruling that unzipping one’s pants in front of a girl and holding a minor’s hands were not sexual assault to acquitting a man accused of rape by saying he on his own could not have raped as there was no sign of a scuffle, her judgments continued to be talking points.
While child and women’s rights activists alleged that many of the accused punished by trial courts in Pocso cases were granted relief by her while providing “bizarre” explanations and misinterpreting laws governing assault on women and children, a section of lawyers in Nagpur has come out in support of Justice Ganediwala and have decided to send a representation to President Ramnath Kovind and CJI Bobde to reconsider the collegium’s decision.
Lawyers say the collegium’s decision will make judges apprehensive of taking bold decisions and Bombay HC would be deprived of a promising young judge. Organisations like the National Commission for Women, however, fear that her verdicts will have severe repercussions and have even requested the apex court to stay them.
The judge, however, refused to speak to TOI citing protocol.
Justice Ganediwala, who hails from Paratwada in Amravati district — along with Justice (retired) Ravi Deshpande — directed the Maharashtra government to make sufficient staff and facilities available to treat Covid patients in Nagpur.
The same bench rejected a petition to defer the Joint Entrance Examination (JEE) due to the pandemic and floods in Vidarbha.
However, in October, Justice Ganediwala said Covid positive patients were not “untouchables” and directed Mumbai’s government hospitals to ensure treatment of a pregnant woman with Covid.
The judge, who restrained producer-director Karan Johar, his firm Dharma Productions, music composer duo Ajay-Atul and Sony Music from airing “Oh Saiyan” song from film ‘Agneepath’ after a city-based engineer accused them of lifting his copyright song, has had a bright academic record.
After completing BCom, LLB and LLM, she was appointed as district judge in 2007 and worked at Mumbai and Nagpur civil courts along with family court. She had cleared NET-SET in the first attempt and worked as lecturer before being appointed as a judge. Later, she was appointed as principal district and sessions’ judge in Nagpur and subsequently, elevated as HC’s registrar-general.
On June 1, 2016, as a principal judge, she allowed a criminal revision application filed by lawyer Satish Uke against former Maharashtra chief minister Devendra Fadnavis. Uke had claimed that Fadnavis had suppressed information about two pending criminal cases against him while filing an affidavit with the Election Commission before contesting assembly polls in 2014.
Justice Ganediwala’s name was in the reckoning for additional judge in HC in 2018 but was not considered following adverse remarks by a few judges that led to SC deferring her appointment. It was during the tenure of former CJI Ranjan Gogoi that she was appointed to the post in 2019.
She was part of many landmark judgments during her stint as HC judge. In 2019, a three-judge bench ruled that parole is limited right available to prisoners, and not merely an administrative decision. The bench had also struck down a provision under the Prisons Act that had barred convicts in state from seeking multiple paroles in a year.
Post- retirement employment
“Judicial afternoons and evenings are sensitive phases, the incumbent being bothered about post-retiral prospects. The executive plays upon this weakness to bend the integrity or buy the partiality of the elderly brethren.” Justice Krishna Iyer’s observation demonstrates how the prospect of postretirement employment can severely damage judicial independence.
PK Sen, KT Shah, HV Kamath, K Santhanam, MA Ayyangar, Naziruddin Ahmad and Jaspat Roy Kapoor, founding fathers of the Constitution, recognised this danger in the Constituent Assembly debates; the seminal 14th Report of the Law Commission of India came down heavily on the practice, arguing that it not only affected judicial independence but also eroded the dignity and high status of the judicial office; Seervai too advocated a complete prohibition, conditional on an increase in judicial salaries and pensions, reasoning that the independence of the judiciary was more significant than the need to have judicial members presiding over tribunals and commissions.
Despite wise counsel from several constitutional stalwarts, not only has post-retirement employment continued, but it has also flourished over time. This is primarily a consequence of three intertwined factors. First, tribunals and commissions, several of which require retired judges to preside or act as members, have proliferated in the past few decades.
Second, there has been no consensus on increasing the retirement age of judges. This has resulted in judges and governments believing that retired judges, at 62 in the high court, and 65 in the Supreme Court, are still in a position to use their wide experience in public interest.
Third, pensions and post-retirement benefits of judges are widely considered to be altogether insufficient. Despite several increases over the years, retirement benefits are inadequate substitutes to the trappings of power and its concomitant perks that commission or tribunal chairpersons enjoy. In the Constitution, Articles 124(7) and 220 deal with the regulation of post-retirement practice of Supreme Court and high court judges respectively. These were the products of a principled consensus in the Constituent Assembly that post-retirement court practice of judges ought to be curtailed. Wide differences however existed regarding the extent of such curtailment. In their comments and suggestions to the draft Constitution, Sapru and Ayyar espoused the position that all post-retirement practice of judges who had been appointed, whether permanent or additional, ought to be prohibited.
Sapru was particularly forceful in his view that the reversion of a judge to the Bar was a pernicious practice, as was demonstrated by the convention in England to prohibit it. On the contrary, sitting judges, the home ministry, Chief Justice Ram Lal of the East Punjab high court and Justice Meredith of the Patna high court specifically argued that such a prohibition should not extend to additional or temporary judges. Were such a provision introduced, the possibility of filling up vacancies from the Bar would become exceedingly difficult.
After considering these suggestions, the drafting committee placed an amended provision before the Assembly. The provision prohibited all postretirement practice of all high court and Supreme Court judges. Building on this, a proposal was made by PK Sen for a new provision, draft Article 103A (and an analogous Article 196A for the high court) additionally prohibiting sitting or retired judges of the Supreme Court or high courts from holding an office of emolument under the Government of India or that of a State.
An exception clause in relation to sitting judges when nominated by the President with the consent of the Chief Justice of India to a temporary office and in situations when an Emergency is in force was also provided for.
The primary rationale underlying such a prohibition was the need to uphold the independence of the judiciary such that “there should be no temptation before any Supreme Court judge of the possibility of his being offered any office of profit after retirement.” Such a provision was approved by the Constituent Assembly in case of the auditor-general as well as the chairman and members of the Union and State Public Service Commissions.
The rejection of the underlying principle of Sen’s amendment was based on BR Ambedkar’s view that whereas the Public Service Commissions were engaged in deciding matters in which the government is directly interested, the same would not be true for the judiciary. In his view, the judiciary will be primarily concerned in deciding “the issue between citizens and very rarely between citizens and the government.”
Ambedkar’s view is curious for the time at which it was expressed, and plainly antiquated in today’s context. In colonial times the higher judiciary may have been primarily a forum for settlement of private disputes between citizens, distinctly inferior to the legislature and executive in terms of its power. With the onset of the Constitution however, Ambedkar could hardly have claimed to believe that this position would continue unchanged.
Part III of the Constitution contained fundamental rights enforceable by citizens against the state; Part XI contained relations between the Union and the States outlining the legislative competence of each. In several instances of cases involving legislative competence as well as in alleging a fundamental rights violation, the higher judiciary would deal entirely with citizen-state disputes.
As the key drafter of the Constitution, Ambedkar’s failure to recognise this issue as significant for determining the character of the higher judiciary, is somewhat surprising. Needless to say, such a view has even lesser currency today. The very fact that the governments and their instrumentalities are the predominant litigants in India’s higher judiciary bears testimony to the fact that we live in changed times.
This is an edited excerpt from the author’s new book, ‘Independence and Accountability of the Indian Higher Judiciary’
All judges, who have illuminated jurisprudence with landmark judgments, have to retire. Post-retirement, most do not carry the halo of their popular judgments. They prefer the quietness of retired life without attempting to bask in the reflected glory of their judgments.
They prefer fading into the evening of their lives, eschewing the lure of pontification. They do not need appreciative claps at public lectures by holding forth on ‘judging the judges’, a popular contemporaneous topic. They carry with them, into their retirement, judicial discipline, rectitude and a sanguine disposition without forgetting the cardinal truth – ‘to err is human’.
They know that for every finger they point at judges or the judicial system, four will point back at them. Despite their brilliance and fame earned through eloquent judgments, they are not popular with social activists or activist lawyers. They seldom got invited to deliver lectures for they lack the ability to preach. But there are exceptions.
Justice Ajit Prakash Shah recently delivered a 25-page lecture on ‘Judging Judges: Need for Accountability and Transparency’. He was appointed as an additional judge in Bombay high court by the P V Narasimha Rao government (there was no collegium system then) on December 18, 1992, after consultation with Justice L M Sharma, who was Chief Justice of India from November 18, 1992 to February 11, 1993.
In his lecture, Justice Shah was right when he said, “Judges do not have pre-set moral codes embedded in their brains that dictate their behaviour the moment they sit on the bench. Indeed, they are as human as the lawyers, plaintiffs, defendants, criminals, witnesses and police before them. To attribute a greater morality to them merely because of the nature of their office is false and dangerous.”
Justice Shah became chief justice of Madras HC on November 12, 2005, and on May 7, 2008, he was appointed CJ of Delhi HC, the constitutional post from which he retired on February 12, 2010. As CJ of Delhi HC, he shot into fame with his pioneering judgment in July 2009 decriminalising Section 377 of Indian Penal Code, which for more than a century punished the LGBT community.
After the judgment, he became the most talked about judge in the country and a darling of social activists, activist lawyers and, of course, the media. Despite the brilliant judgment and years as chief justice of two prominent HCs, he failed to earn a berth in the Supreme Court as a judge. By the time he entered the zone of consideration for selection as an SC judge, the collegium system was well entrenched and appointments to the apex court were made collectively by the CJI and his four most senior colleagues. The collegium considered his name a few times, but not favourably. We do not know whether it riled him. But the two categories of activists lost no time in making a villain out of Justice S H Kapadia for opposing Justice Shah’s elevation.
Activists circulated stories of alleged differences between Justices Kapadia and Shah from their Bombay HC days as the reason for the former’s opposition to Shah’s elevation to the SC. Only a few knew what actually dissuaded the SC collegium from recommending Justice Shah’s name to the government — a four-page letter dated September 12, 2008, by advocates of Madras HC giving details of allegations against Justice Shah and opposing his appointment as an SC judge.
The advocates had sent the letter to then President Pratibha Patil, then Vice-President Hamid Ansari, then PM Manmohan Singh, then CJI K G Balakrishnan and his colleagues Justices B N Agrawal, Ashok Bhan, Arijit Pasayat and Kapadia.
What holds true for the 2008 complaint against Justice Shah is his own statement in the recent lecture, “Without passing judgment on the truth or falsity of the allegations, I must admit there are certain stark facts that stand out which demand consideration.”
The 2008 complaint talked about a film actress and also about chamber hearing, instead of open court hearing, in a case relating to a builders’ lobby and how a property worth hundreds of crores of rupees was sold for a song. The advocates had earnestly requested for “a proper inhouse inquiry or proper investigation” into the allegations. Then CJI Balakrishnan did not order an inquiry.
No social activist or activist lawyer ever demanded an inquiry, as it would have dimmed the judge’s halo that was shining bright with effusive praise for his LGBT judgment. No doubt, he was a fine judge. But didn’t he have his failings?
That is why Justice Shah probably said in his lecture, “Judges must be constantly reminded of what is appropriate behaviour throughout their career, so that the role that is cast upon them — of administering impartial justice — is never compromised.”
In its July 18, 2018, judgment in Shanti Bhushan vs Supreme Court, the apex court expanded on ‘what a judge should be’. Justice A K Sikri wrote, “We live in an age of accountability. What is required of judges is changing. Judgments of the courts are widely discussed, debated and even criticised. In this age of technology, open society and liberal democracy, coupled with varied nature of cases raising complex issues which are decided by the courts, including ‘hard cases’, any outcome whereof may be susceptible to criticism, as both views may appear to be equally strong. “In that sense, judiciary walks the tightrope of independence. It has also become a regular feature that even laymen, who are constitutionally illiterate, enter such debate and evaluate the outcomes influenced by their emotions, rather than on legal or constitutional principles.
“The world is changing fast. However, the fundamental qualities which the public seek in a judge have remained the same, as these are eternal verities, which will never change. These are wisdom, patience, a sense of practical reality, fairness and balance, independence of mind and knowledge of law, moral courage or fortitude, and a total commitment that justice should be administered according to law. At the end of the day, it is the virtue of righteousness, impartiality, objectivity and scholarship which a judge commands to ensure respectability to his judgment.” That is too idealistic, Justice Shah will agree even long after his retirement.
Justice Lokur on government interference
Former Supreme Court judge Madan B Lokur recently wrote an article, ‘Govt calling the SC shots? Collegium’s actions show that the NJAC which was struck down four years ago is back, with a vengeance’. To back his post-retirement perception about the collegium, which selects persons for appointment as Supreme Court and high court judges and transfers judges from one HC to another, Justice Lokur cited the collegium decisions which were changed after the Centre expressed reservations over earlier recommendations.
Justice Lokur cited two examples. The collegium’s recommendation for appointment of Justice Vikram Nath as chief justice of Andhra Pradesh and Justice Akil Kureshi as chief justice of Madhya Pradesh. Following the Centre’s reservations, the collegium recommended appointment of Justice Nath as CJ of Gujarat and Justice Kureshi as chief justice of Tripura. Justice Lokur saw it as the Centre calling the shots in the collegium and lamented reasons not being spelled out for change of recommendations. He argued for transparency.
A few instances will refresh his memory. In September 2017, the collegium, of which Justice Lokur was a part, controversially recommended transfer of Justice Jayant Patel from Karnataka HC, where he was on the verge of becoming acting chief justice, to Bombay HC.
The government had reservations over Justice Patel going to Bombay high court. Days later, the collegium met again and decided to change its earlier recommendation and transfer Justice Patel to Allahabad HC. Justice Patel resigned. Justice Lokur did not insist on reasons being spelled out for the change in recommendation. Was government calling the shots? Interestingly, Justice Lokur had agreed to change of Justice Patel’s transfer destination only after the collegium agreed to his demand for bringing a judge, who was transferred to Madras high court, back to his parent Delhi high court. No reason was assigned by the collegium for transferring the other judge from Madras high court to Delhi high court. Sunlight as a disinfectant, which Justice Lokur argued in his article, was probably screened by some cloudy spell at that time. There was another instance of such a flip-flop by the collegium, to which Justice Lokur was a party. In January last year, the collegium had recommended appointment of Justice Aniruddha Bose as CJ of Delhi high court.
In July 2018, the collegium, of which Justice Lokur was the third most senior judge, noted the Centre’s reservation on appointment of Justice Bose as CJ of Delhi HC and resolved to “recommend that Justice Rajendra Menon, CJ of Patna HC, be transferred on account of administrative exigencies, to Delhi HC.” As he was part of the collegium, Justice Lokur did not perceive it as “government calling the shots” nor was he bitten by the transparency bug then. What is the scale of transparency that Justice Lokur expects to infuse into the collegium? Wish he had specified while being a member of it. We will present him a transparency-triggered tragedy, ruin of career and personal life of an upright district judge from Tamil Nadu.
The collegium had in October 2017 gone ballistic about transparency and decided to upload on the SC website reasons for selection or rejection of persons for appointment as HC judges. The district judge was in the zone of consideration for selection as judge of Madras HC. But the Intelligence Bureau report on him was adverse. The collegium rejected him as unsuitable based on the IB report. Later, discreet inquiries showed that the IB report was incorrect.
By that time, the man had suffered ignominy and was ostracised in judicial and legal circles as a person of doubtful integrity. His children distanced themselves from him. He was denied extension of service from 58 years to 60 years, which is granted to almost all district judges as a norm. There are several such careers which lie in ruins because of the collegium’s resolutions being uploaded on the SC website. Hope Justice Lokur will introspect and understand.
Arbitration, providing valued opinion
If there is a travesty about the principle of equal work, equal pay, one need not turn to the urban-hinterland disparity. A comparison of compensation paid to a Supreme Court judge for hearing and deciding a case and to a senior advocate for arguing it brings out the wide chasm.
An SC judge gets a salary of Rs 2.5 lakh a month, which works out to approximately Rs 8,333 per day, during which he hears arguments from lawyers on an average in 40 cases. This translates to Rs 208 per case, be it a simple appeal, a PIL on Covid issues, or one involving intricate questions of law.
In contrast, a newly designated senior advocate commands a price of Rs 1 lakh to Rs 5 lakh for arguing a case. The services of a seasoned advocate like A M Singhvi, Kapil Sibal, Mukul Rohatgi or Harish Salve may find the litigant’s bank balance lighter by Rs 10 lakh-20 lakh per hearing. So an SC judge, who hears and decides a case, gets Rs 208 per day per case while seasoned senior advocates, who cannot guarantee a result in a case, are paid lakhs of rupees per day per case.
Well, none of the senior advocates argue in 40 cases a day, for which an SC judge prepares every evening to be ready to listen to the legal arguments the next day.
Post- retirement statements
Vis-à-vis actions as sitting judges
After retirement, judges preach what they seldom practised
Days before becoming Chief Justice of India, Justice Ranjan Gogoi in his Ramnath Goenka lecture had agreed that independent judges and noisy journalists were democracy’s first line of defence but modified it slightly to say that “not only independent judges and noisy journalists but even independent journalists and sometimes noisy judges” were needed to guard the ethos and values of democracy. Eight months before the lecture, Justices Gogoi, Madan B Lokur and Kurian Joseph led by Justice Jasti Chelameswar held an unprecedented press conference to accuse then CJI Dipak Misra of wrongdoing. They provided no evidence. The then CJI endured the ignominy silently. Captain of the rebel judges Justice Chelameswar and his “johnnies” (as Justice Chelameswar had referred to the other three judges just before the January 12, 2018 presser) shook the pillars of the highest court, created cracks in the vaunted brotherhood among judges and provided activist lawyers the license to heap ignominy and create doubt about the judges’ integrity.
The presser scripted no tangible reforms. Later, Justice Gogoi smelled a rat in the course being charted by Justice Chelameswar with help from politicians in Congress, Left parties and activist lawyers. By the time the design reached its inglorious finale, with the Congress-led opposition filing a historic notice of removal against the CJI in Parliament, Justice Gogoi had distanced himself from the flow of events. Justice Gogoi believes in the Orwellian concept of free speech: “Freedom is the freedom to say that two plus two makes four.” When he said ‘noisy judges’ were needed in democracy, he meant sitting judges living up to their oath to do justice without fear and favour and having the courage to call a spade a spade.
In India, it has become a trend with some retired judges to make the loudest noise about perceived violation of procedures. As judges, they routinely advise all and sundry to practice what they preach but after retirement, they quickly forget the ‘preach what you practice’ sermon. Recently, Justice Lokur, followed by Justice Chelameswar, wrote articles criticising the procedure adopted by the Supreme Court in setting up an in-house committee of Justices S A Bobde, Indu Malhotra and Indira Banerjee to inquire into an unprecedented sexual harassment complaint against CJI Gogoi.
Justices Chelameswar and Lokur became SC judges in October 2011 and June 2012, respectively. Both had spent considerable time as judges and chief justices of various high courts before joining the SC. On November 6, 2013, a law intern wrote a blog accusing retired SC judge A K Ganguly of making inappropriate sexual advances towards her nearly a year earlier in December 2012. The then CJI set up an in-house inquiry panel of Justices R M Lodha, H L Dattu and Ranjana Prakash Desai to inquire into it.
There were several glaring procedural lapses — a retired judge is not amenable to an inhouse inquiry procedure, majority of male judges in the panel was not in sync with the Vishaka judgment guidelines to deal with sexual harassment complaints, lawyer’s assistance was not extended to the complainant, the SC did not make public the in-house inquiry report which found prima facie truth in the complaint, and, the ‘sexually harassed’ law intern refused Delhi Police’s repeated requests to lodge an FIR. Though Justices Lokur and Chelameswar were firmly entrenched as SC judges by November 2013, why did they not protest against the improper procedure followed by the in-house panel? Procedure-sensitive Justice Lokur, while heading a bench hearing a case relating to Manipur fake encounter killings, had brushed aside the judiciary’s golden dictum of “innocent till pronounced guilty” to rap the CBI for allowing ‘murderers’ (Army personnel) to loaf around. Probably, he had intended to say that the CBI was not expediting investigation against those accused of fake encounters. But in one verbal shot from the bench, he branded all the accused as murderers, without trial. Justice Lokur has been associated with computerisation of the judiciary and headed the SC’s E-committee. In November 2016, then CJI T S Thakur unceremoniously replaced him with retired Rajasthan HC CJ Sunil Ambawani. Justice Thakur’s successor Justice J S Khehar reinstated him. What procedure was followed on both occasions, no one knows.
Justice Lokur retired on December 31, 2018. At his farewell, CJI Gogoi had fondly recalled his more than 50-year friendship with Justice Lokur and referred to him as his “right hand”. To make the “right hand” happy, CJI Gogoi allowed Justice Lokur to continue in the E-committee despite the latter ceasing to be an SC judge. Justice Lokur did not question the procedure under which he was allowed to continue in the E-committee. The CJI has sanctioned him an official car, 200 litres of petrol per month, a driver and a peon for being part of the committee. Though Justice Lokur was sanctioned these perks since January, not a single meeting of the E-committee has been held since January.
We had earlier written about how Justices Chelameswar and Lokur bartered transfer of their favourite judges from one HC to another in the collegium meetings. Procedure and transparency was far from their minds when they were part of the SC collegium which wields the power to select persons for appointment as judges and transfer of judges. Nearly 11 years ago, an FIR was lodged by a jeweller with a police station in Delhi accusing a media personality, who was the wife of a then powerful politician, of taking jewellery without paying for it. The complainant said the media personality told him that some of the jewellery was meant to be “gifted to Mr Chelameswar in Hyderabad”. Procedurally, there should have been an inquiry into it. It could still be done, with the precedent of the Justice Ganguly incident.
Recruitment as a judge
Experience as judges not on a par with bar service of advocates
The Supreme Court said the experience of a judge of the lower judiciary could not be treated at par with the service of a lawyer for recruitment as a judge for higher judiciary from the bar quota for which an advocate needed to have minimum seven years of continuous practice.
A bench of Justices Arun Mishra, Vineet Saran and S Ravindra Bhat rejected the plea of lower judiciary judges who contended that their experience as judges be treated at par with the bar service of advocates and they be permitted to apply for higher judiciary. They argued that those in judicial service were better qualified because they had experience in discharging functions relating to a judicial office, whereas advocates did not have such benefit.
Noting that only a fourth (25%) of posts in the cadre of district judge were earmarked for advocates and the remaining 75% was filled exclusively from judicial officers, the bench said there was nothing wrong to keep judicial officers out of consideration for the post of district judge under the quota earmarked for advocates and the rule was valid.
“An advocate has to be continuing in practice for not less than seven years as on the cut-off date and at the time of appointment as district judge. Members of judicial service having seven years’ experience... or having combined experience of seven years as lawyer and member of judiciary are not eligible to apply for direct recruitment as district judge,” the bench said.
Removing a judge
How is a judge removed?
Move Cites SC Judges’ Presser, Lists 5 Cases Of ‘Misbehaviour’
A Congress-led opposition bloc submitted a petition to the Rajya Sabha chairman on Friday seeking the removal of Chief Justice of India Dipak Misra on grounds of alleged improprieties, including favouritism in allocating cases to benches in the Supreme Court — an unprecedented step that is set to escalate the political confrontation between the ruling BJP and the opposition, besides keeping the spotlight trained on a lacerating rift in the top judiciary and its alleged politicisation.
Leader of the opposition in the Rajya Sabha Ghulam Nabi Azad, along with leaders of CPI and NCP, met Vice-President and RS Chairman Venkaiah Naidu at his residence to submit the petition.
It is the first time that a removal petition has been moved against a CJI. It is unlikely to pass muster because the movers lack the strength — the support of a majority of the total membership as well as two-thirds of those present and voting — in both Houses. In fact, there is little likelihood of Naidu accepting it.
While the petition was signed by 64 MPs (71 signatures, of which seven have retired) from seven parties, Azad said it was also on behalf of “parties who have not signed the motion”, suggesting that the move had wider backing in the political camp than the thin support indicated on paper. The parties to sign the notice were Congress, NCP, CPM, CPI, SP, BSP and the Indian Union Muslim League.
Azad’s comment appeared an attempt to pre-empt criticism that the party had failed to win over allies in the drastic move. Trinamool Congress did not sign the petition despite several attempts by Congress while DMK withdrew its name — a reason why the removal push was paused during the Parliament session. Coming a day after the SC rejected PILs seeking investigation into Loya’s death, the opposition move lent itself to political interpretation. However, Azad termed it a coincidence, saying the appointment with Naidu came through a full week after it was sought.
Oppn lists 5 cases of ‘misbehaviour’ against CJI
Loya, who died in allegedly mysterious circumstances, was hearing the Sohrabuddin Sheikh encounter case in which BJP chief Amit Shah was discharged.
The political slugfest is only likely to worsen with both sides appearing willing to spar on the sensitive issue.
At a press conference featuring Azad, Kapil Sibal, D Raja (CPI), Vandana Chavan (NCP) and KTS Tulsi (lawyer MP), the leaders said questions were raised about CJI Misra’s judicial and administrative decisions since the day he was appointed to the top post. Sibal pointed to the sensational January 12 presser of the four most senior SC judges to argue that there were rumblings within the top court over CJI Misra’s exercise of powers.
He added that the opposition had waited for three months for the CJI to remedy the situation, but two SC judges had recently written letters lamenting that the CJI had not asserted the independence of the judiciary in the face of interference by the executive.
“Since there is no other way to protect the institution except to move a removal motion, we have done so with a heavy heart,” Sibal said.
The opposition listed five cases of misbehaviour against the CJI. The first relates to the manner in which CJI Misra dealt with bribery allegations in the Prasad Education Trust case related to medical admissions in which retired judge of Orissa HC judge I M Quddusi was arrested.
In the petition, Congress and the others claimed there were references to CJI Misra in the conversations between Quddusi and a middleman who promised promoters of a medical college that he could organise relief from the Allahabad HC.
1991-2017: 6 sitting judges faced action, none removed
2 Put In Their Papers Before Process Was Completed
Sitting judges have faced removal procedures in the past but no judge has so far been removed despite serious charges of misconduct or corruption as the process could not reach the conclusive stage for one or the other procedural reason.
The Constitution provides that a judge can be removed only by an order of the President, based on a motion passed by both the Lok Sabha and the Rajya Sabha by a majority of the total membership of the House and also the majority of at least two-thirds of the members of that House present and voting.
Justice V Ramaswami, a judge of the Supreme Court, was the first judge in independent India against whom removal proceedings were initiated in 1991. He was charged with spending extravagantly on his official residence during his tenure as chief justice of Punjab and Haryana high court in 1990. Even the Supreme Court Bar Association had passed a resolution calling for his removal.
The then CJI Sabyasachi Mukherjee announced in open court that he had advised Ramaswami to “desist from discharging judicial functions so long as the investigations continued”.
Analysis of past cases shows that while one removal motion (Justice V Ramaswami) failed to secure the required two-thirds majority in the Lok Sabha, another one (Justice Soumitra Sen of the Calcutta high court) did not reach the lower House after the motion was passed by Rajya Sabha as the judge resigned.
The resignation spared Justice Sen from being the first judge to be removal. He had faced charges of misappropriating Rs 33.23 lakh as a court-appointed receiver in the capacity as a lawyer, and even misrepresenting facts before a Calcutta court in a 1983 case.
In the case of another judge, Justice P D Dinakaran, the then chief justice of Sikkim HC, the matter was dropped in 2011 as he resigned before removal proceedings were initiated in Rajya Sabha.
The main charges for removal of CJI Dipak Misra
Oppn charges hinge on ‘may be’, ‘likely’ & ‘appears to be’
The three main charges in the motion for removal of CJI Dipak Misra, which the Congress-led opposition parties submitted to Rajya Sabha chairman Venkaiah Naidu on Friday, contained surmises articulated through “may have been”, “likely to fall” and “appears to have”.
The Judges Inquiry Act, 1968, mandates that the charges in a motion for removal of a judge of the Supreme Court or high courts have to be “definite”, on the basis of which an investigation can be initiated.
The first charge in the removal motion is on the alleged medical admission scam in Prasad Education Trust case where the Congress-led parties pointed to “prima facie evidence suggesting that CJI Misra may have been involved in the conspiracy of paying illegal gratification in the case”.
The second charge related to the manner in which CJI Misra dealt with the case, first brought to the limelight by a two-judge bench headed by Justice J Chelameswar — who exceeded his jurisdiction in assigning it to a Constitution bench of the first five SC judges despite knowing that a similar matter was pending before another two-judge bench headed by Justice A K Sikri.
The motion said that the CJI dealt with the case, in which “he too was likely to fall within the scope of investigation”, both “on the administrative as well as judicial side”, thus violating the “first principle of the code of conduct for judges”.
The third charge in the motion said Justice Misra “appears to have” antedated an administrative order dated November 6, 2017, which amounted to a serious act of forgery/fabrication. The allegation starts with a surmise “appears to have” and goes on to make it sound like a serious misconduct.
The fourth charge referred to a nearly four-decade-old incident, when Justice Misra as an advocate had allegedly given a false affidavit to acquire land which was cancelled by the local additional district magistrate. The opposition alleged that he surrendered the land six years ago after being appointed a judge of the SC.
The fifth and final charge echoed the allegation levelled in the January 12 presser by four senior SC judges — Justices Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph. The motion said: “CJI Misra has abused his administrative authority as master of roster to arbitrarily assign individual cases of particular advocates in important politically sensitive cases to select benches in order to achieve pre-determined outcome.”
Immediately after the presser on January 12, CPI veteran D Raja had met Chelameswar at his official residence and soon started a political campaign for the CJI’s removal. Weeks later, senior advocate Kapil Sibal had a heated exchange with the CJI for adjournment of the Ayodhya case to July 2019. Later, he too joined the campaign for the CJI’s removal.
At the end, the motion said: “These above-mentioned charges against CJI have brought the judiciary into disrepute. In view of these serious charges and explanatory note on each charge, it is apparent that there is sufficient prima facie evidence for initiation of impeachment (removal) proceedings against CJI Misra.”
CJI had backed removal of HC judge for medical college scam
The Congressled opposition may have made the medical admission scam the prime issue to seek CJI Dipak Misra’s removal, but he had set up an in-house inquiry committee to probe misconduct of an Allahabad HC judge who allegedly granted relief to private medical colleges, including the Prasad Education Trust.
Finding substance in the serious allegations relating to medical admission scam against HC judge S N Shukla, a three-judge in-house committee headed by Madras HC Chief Justice Indira Banerjee had recommended his removal in its report to CJI Misra in January.
Acting in accordance with the committee’s recommendations and as per paragraph 7(i) of the in-house procedure, the CJI advised Justice Shukla to either resign or take voluntary retirement. However, Justice Shukla expressed unwillingness to do either. Left with no option, the CJI advised the chief justice of Allahabad HC to withdraw judicial work from Justice Shukla and wrote to the President and the PM for initiation of removal proceedings against the HC judge.
Heading a division bench in the HC, Justice Shukla allegedly went beyond the categorical restraint order passed by the SC last year and permitted private colleges to admit students for the 2017-18 academic year. The CJI had received two complaints on September 1 last year and had set up an inhouse committee comprising the Madras HC CJ, Sikkim HC CJ S K Agnihotri and MP HC’s Justice P K Jaiswal.
After inquiring into allegations of favours given to private medical colleges through judicial orders by Justice Shukla, the committee concluded that there was merit in the allegations against Justice Shukla and that the aberrations on his part were serious enough to warrant initiation of removal proceedings. It also said Justice Shukla had “disgraced the values of judicial life, acted in a manner unbecoming of a judge”, lowered the “majesty, dignity and credibility of his office” and acted in breach of his oath of office.
Once the CJI writes to the President and the PM recommending removal of an HC judge, the RS chair or LS Speaker appoints a three-judge inquiry panel in consultation with CJI under Judges (Enquiry) Act, 1968, to look into the allegations examined by the inhouse panel. This panel examines evidence and records finding which forms the basis for whether or not removal motion be debated in RS or LS.
On December 8 last year, CJI Misra had set up the in-house committee to inquire into alleged role of Justice Shukla in granting permissions to private medical colleges to admit students despite a firm SC ban. This alleged aberration by the HC judge had led to a CBI probe into the medical scam and arrest of ex-judge of Orissa HC I M Quddusi.
In fact, a CJI-led bench, on the MCI’s appeal, had reversed one such order by an Allahabad HC bench led by Shukla and cancelled all admissions made pursuant to the HC order. Importantly, the SC bench had kept the MCI petition pending to examine the propriety of the HC judge’s order, especially in light of the SC’s blanket ban on private medical colleges not to admit students for the 2017-18 academic year.
CJI Misra had acted on the recommendations of a three-judge inquiry panel established by him to probe misconduct of an Allahabad HC judge who had allegedly granted relief to private medical colleges, advising him to either resign or take voluntary retirement
Constitution does not support forcing CJI to recuse’
Congress has fallen to an abysmal low in moving a motion of impeachment after the Supreme Court’s B H Loya judgment. Apparently, it was issuing threat of a motion to deflect course of the judgment in Loya case in favor of its political interest. And when the judgment did not meet its expectations, Congress filed the motion. The move is also intended to delay hearing of Babri Masjid case, as regards which Kapil Sibal made fervent pleas to the court.
The motion is ill advised and founded on baseless charges. Its purpose is only to compel Chief Justice of India Dipak Misra to recuse. Congress knows no inquiry will end by the time the CJI retires. It also knows it lacks strength in Parliament to succeed. So this is not an impeachment motion but a recusal motion.
Basing on the K Veeraswamy judgment [(1991) 3 SCC 655] Congress hopes to ask for recusal of the CJI from court functioning. It is true that in the case the then CJI asked the judge to step down during the committee of enquiry proceedings. But the intervention was not mechanical, but based on the nature of charges. Here the charges are bogus. The frivolousness can be gauged by the attempt to pick an allegation relating to land pertaining to before the CJI’s elevation as a judge of the high court.
Remember it was a Congress government who appointed him in 1996 and then as Chief Justice of Patna High Court in December, 2009 and again as Chief Justice of Delhi high court in May, 2010, and finally to the Supreme Court on October 10, 2011. So, one can assume that Congress did not attach any weight or worth to the charge. Two other charges relate to intra-court functioning and assignment of cases. Here it draws sustenance from Justice Chalameshwar J. order, which itself is questionable to say the least. Then there is a medical college order which has no substance either. There is no basis for any recusal on a moral basis.
Ordinarily, a judge once appointed is entitled to function unless impeached by a motion passed by Parliament or at least till found guilty by the committee of enquiry. There is no constitutional provision of suspension pending enquiry. A judge is not an ordinary government employee. For good reason no such provision is included in Article 124 of the Constitution or even in law. Any such provision would have been utilised by political parties to blackmail judges.
There is no constitutional convention for recusal on filing or admission of a motion of impeachment. K Veeraswamy should be understood in its context. It creates no convention. A single swallow does not make a summer. There can be no convention against the tenor and context of the Constitution. One wonders what consequences would flow if BJP MPs move a motion against the four judges who gave vent to their grievances against the CJI’s rostering without consulting other brother judges. We know that a bench presided by Justice R Gogoi had called former SC judge M Katju to court to explain his comment on a judgment and made him apologise.
What happens if BJP MPs treat conduct of four judges as an obstruction in the course of justice and therefore, a criminal contempt and move a motion? Then would these judges have to recuse? I hope the BJP MPs are well advised to refrain. Political parties must not fish in internecine conflicts in the judiciary. Let judges rise, and grab this moment of history, and together strengthen independence of the judiciary. Congress should withdraw its motion and abandon its death wish. It will get no political dividends.
The power of impeachment rests in both Houses of Parliament with two thirds majority. No motion can be deemed admitted unless presented both to the Speaker and Chairman, and tabled before both Houses. Since the motion has to be passed separately any one House can admit the motion. But submission by Congress to the Chairman does not trigger an inquiry. Independence of judiciary should be placed on sounder footings. There is no case for recusal. Let not judges be a play thing of politicians.
(The writer is a senior advocate practising in the Supreme Court)
‘Making details of CJI removal notice public flouts RS rules’
Public disclosure of the contents of the notice for the removal of Chief Justice of India Dipak Misra by opposition leaders constitutes a violation of Rajya Sabha rules that no advance publicity should be given until a notice is admitted by the chair.
The handbook for Rajya Sabha members states that “a notice for raising a matter in the House should not be given publicity by any member or other persons until it has been admitted by the chairman and circulated to members.” The violation is seen to be significant in the context of the political overtones of the case.
While Congress, CPI and NCP leaders did not share copies of the notice they submitted to Vice President and Rajya Sabha chairman M Venkaiah Naidu, they did speak in detail about the grounds on which they sought the CJI’s removal.
“A member should not raise the issue of a notice given by him, pending consideration of the chairman,” the rules say. “As per parliamentary customs and conventions, a notice for raising a matter in the House should not be given publicity,” a parliamentary source said.
The rules of procedure in Lok Sabha also state that no publicity should be given to a notice until the day the question is answered in the House. “This assumed importance in the context of political overtones surrounding the first of its kind move against the CJI and officials have noticed the violation,” the source said.
The motion against the CJI has been submitted by a Congress-led block in Rajya Sabha. The notice is being examined by Naidu as Congress and BJP trade charges over the politicisation of the issue since the notice was submitted a day after a CJI-led bench dismissed plea for a probe into the death of judge H B Loya.
Naidu rejects Opposition notice to remove CJI
Congress leaders said over the weekend that the party is considering moving the Supreme Court if the notice to remove the CJI is rejected
They said if the Upper House chairman did not find merit in the notice for the removalre, the decision could call for a judicial review.
Rajya Sabha chairman Venkaiah Naidu today rejected the Congress-led opposition parties' notice to remove the chief justice of India (CJI) Dipak Misra saying it lacked substantial merit.
"Having considered the material contained in the notice of motion and reflected upon the inputs received in my interaction with legal luminaries and constitutional experts, I am of the firm opinion that the notice of the motion does not deserve to be admitted. Accordingly I refuse to admit notice of motion," said Naidu.
"I have applied my mind to all five charges made out in impeachment motion and examined all annexed documents. All facts as stated in motion don't make out a case which can lead any reasonable mind to conclude that CJI on these facts can be ever held guilty of misbehavior," said Naidu further, reported ANI.
While rejecting the notice, Naidu cited a press conference the Congress held on the issue as being in breach of parliamentary customs and conventions and also in violation of Rajya Sabha norms.
"I am constrained to observe that in the matter, the well established parliamentary customs and conventions have been delineated and the paragraph 2.2 of the handbook of the Rajya Sabha members have been disregarded. This provision prohibits publicity of any notice submitted by a member till it is been admitted by the chairman and circulated to the members. In the instant case immediately after submitting the notice to me on 20th April, 2018, members addressed a press conference and shared the statements contained in the notice which included some still unsubstantiated charges against the CJI. This act of members discussing the act of the CJI in the press is against propriety and parliamentary decorum as it denigrates the institution of the CJI. I am also aware that there has been a spate of statements in the press that seem to vitiate the atmosphere. I thought, I should, therefore, expedite my decision and end needless speculation," said Naidu.
Congress leader PL Punia said immediately after the news of Naidu's rejection that it and other opposition parties will talk to some legal experts and take the next step. Congress leaders said over the weekend that the party is considering moving the Supreme Court if the notice to remove is rejected.
As many as 64 Parliamentarians (MPs) belonging to seven political parties signed the notice for removal proceedings against the CJI. They include MPs from the Congress, the NCP, CPM, the CPI, the SP, the BSP and the Muslim League.
Article 124(4) of the Constitution lays down the procedure for removal of a judge of the Supreme Court, including the CJI, who can be impeached on grounds of "misbehaviour or incapacity". A removal motion signed by 100 members of Lok Sabha or 50 members of Rajya Sabha has to be submitted to the Speaker of the Lower House or Chairperson (ie Vice President) of the Upper House. This can be in either of the Houses of Parliament. The Speaker/Chairperson can then either accept or reject the motion.
Vice president Naidu, to whom the notice was submitted owing to his position as Rajya Sabha Chairman, yesterday set in motion the process of consultation on the notice against the CJI and held discussions with a number of constitutional and legal experts, including Attorney General KK Venugopal, and former top law officer K Parasaran.
Officials told PTI news agency that Naidu spoke to former Lok Sabha secretary general Subhash Kashyap, ex-law secretary P K Malhotra and former legislative secretary Sanjay Singh as well about the issue. He also held deliberations with senior officials of the Rajya Sabha Secretariat, they said, adding that Naidu also spoke to former Supreme Court judge B Sudarshan Reddy.
The officials said the vice president also spoke to the attorney general on the issue. Naidu continued with the deliberations till late in the evening and also spoke to K Parasaran, who was the attorney general during the Congress governments led by Indira Gandhi and Rajiv Gandhi and was also a member to the Upper House nominated by the party.
Senior Congress leader Kapil Sibal said on Friday the notice mentions five grounds of misbehaviour for the CJI's removal.
The grounds are:
1."Conspiracy to pay illegal gratification" in the Prasad Education Trust case and the denial of permission to proceed against a retired high court judge in the same matter. 2. The CJI allegedly listed the petition against the Prasad Education Trust before himself, even when he was heading the Constitution bench, which is against the convention. 3. "Antedating" (backdating) of an order for listing of a petition related to the investigation against the Prasad Education Trust in the Supreme Court. 4. Misra allegedly acquired a piece of land by giving a "false affidavit" while he was an advocate. The plot was surrendered in 2012 when he was elevated to the Supreme Court, even though orders cancelling the allotment were given in 1985. 5. Abuse of exercise of power by the Chief Justice in choosing to send sensitive matters to particular benches by misusing his authority as Master of the Roster with the likely intent to influence the outcome.
"Since CJI Dipak Mishra come, questions have been raised about his conduct. It showed in the January 12 press conference of four judges of Supreme Court. One concern of the four judges was memorandum of procedure was being unsettled," said Sibal after the parties submitted the removal notice to Naidu.
Sibal was referring to an extraordinary press conference called in January by four most senior SC judges.
The Congress is also trying to build up "moral pressure" on the Chief Justice of India in the hope that he would step aside from judicial duty if a removal motion was moved against him.
Judges who faced impeachment had earlier stepped aside from judicial work and the Chief Justice should do the same, a party leader said.
"It is only a convention, though there is no legal or constitutional bar (on this)," the leader said.
Why the impeachment notice was rejected
The Rajya Sabha chairman said he had detailed personal conversations on all aspects arising from the notice and considered each of the allegations individually as well as collectively.
Here are 10 reasons he cited for rejecting the notice in his 10-page order.
Rajya Sabha chairman M Venkaiah Naidu rejected the impeachment notice given by opposition parties led by the Congress against Chief Justice of India (CJI) Dipak Misra. Naidu said he based his decision on the opinion of top legal and constitutional experts, including former secretary generals of Lok Sabha and other legal luminaries with whom he held extensive consultations.
Lask week, seven opposition parties led by the Congress had moved a notice before Naidu for impeachment of the CJI on five grounds of "misbehaviour". The Rajya Sabha chairman said he had detailed personal conversations on all aspects arising from the notice and had considered each of the allegations made in it individually as well as collectively before rejecting the notice.
Naidu cited several reasons for rejecting the impeachment notice in his 10-page order. Here are 10 quotes from his letter.
1. Members of Parliament who have presented the petition are unsure of their own case...the phrases used by the Hon’ble MPs themselves indicate a mere suspicion, a conjecture or an assumption. The same certainly does not constitute ‘proof beyond reasonable doubt’, which is required to make out a case of ‘proved misbehaviour’ under Article 124 (4).
2. Conversations between third parties with dubious credentials, which have been extensively relied upon, cannot themselves constitute any material evidence against the holder of the office of the Chief Justice of India.
3. Clearly, this is an internal matter to be resolved by the Supreme Court itself. Going through the five allegations mentioned in the Notice, I am of the view that they are neither tenable nor admissible. The allegations have a serious tendency of undermining the independence of the judiciary which is the basic tenet of the Constitution of India.
4. The provisions of the Constitution bear ample testimony that the Constitution seeks to establish and nurture an independent judiciary. I am of the clear opinion that all facts, as stated in the motion, do not make out a case under Article 124 (4) of the Constitution which can lead any reasonable mind to conclude that the Chief Justice of India on these facts can ever be held guilty of “misbehaviour”.
5. I have weighed the evidence produced in the notice to assess if there is adequate, cogent, coherent evidence to proceed further. On careful analysis and reflection, I find there is virtually no concrete verifiable imputation.
6. Either the allegations are within judicial domain and concern the internal judicial processes or there are unsubstantiated surmises and conjectures which hardly merit or necessitate further investigation.
7. In the absence of credible and verifiable information which gives an indication of ‘misbehaviour’ or ‘incapacity’, it would be an inappropriate and irresponsible act to accept statements which have little empirical basis. We cannot allow any of our pillars of governance to be weakened by thought, word or action.
8. I am satisfied that admission of this Notice of Motion is neither desirable nor proper. One should examine all the factors very carefully and dispassionately, because initiations of such proceedings tends to undermine the faith of the common person in the judicial system. I am also aware it is imperative that we should have extraordinary, important and substantial grounds for the removal of a judge.
9. The well-established parliamentary customs and conventions as have been delineated in paragraph 2.2 of the Handbook of Members of the Rajya Sabha have been disregarded. The act of Members discussing the conduct of the CJI in the press is against propriety and parliamentary decorum as it denigrates the institution of CJI.
10. Having considered the material contained in the Notion of Motion and reflected upon the inputs received in my interaction with legal luminaries and constitutional experts, I am of the firm opinion that the Notice of Motion does not deserve to be admitted.
2018, ’19/ Removal of Allahabad HC judge
Chief Justice Ranjan Gogoi has written to Prime Minister Narendra Modi to initiate a motion in Parliament for removal of Allahabad high court’s Justice S N Shukla, whose removal was recommended 18 months ago after an in-house panel found merit in charges of serious judicial irregularities.
“You are requested to take further action in the matter,” CJI Gogoi has written to Modi, indicating that timely action against black sheep is necessary to root out graft in higher judiciary. He wrote the letter after he declined a request from Shukla for re-allocation of judicial work, which was withdrawn from him on January 22, 2018 after indictment by the panel. Previously, CJI Dipak Misra had recommended Shukla’s removal.
The CJI informed the PM that “Justice Shukla has addressed a communication dated May 23, 2019 to me, forwarded by the CJ of Allahabad HC, requesting that he be allowed to discharge judicial work in the HC. As the allegations against Justice Shukla were found by the committee to be so serious as to warrant the initiation of proceedings for his removal, he cannot be allowed to resume judicial work in any HC. In these circumstances, you (PM) are requested to consider further action.”
Based on the September 2017 complaint by UP advocate general Raghvendra Singh alleging malpractices against Shukla, then CJI Misra had set up an inquiry panel comprising then Madras HC CJ Indira Banerjee (now in the SC), then CJ of Sikkim HC Justice S K Agnihotri, and Justice P K Jaiswal of Madhya Pradesh HC to inquire into alleged favours shown to a medical college in extension of deadline for admission of students in violation of an SC order. The in-house panel concluded that “there is sufficient substance in the allegations against Justice Shukla and the aberrations are serious enough to call for initiation of proceedings for his removal”. It also said Shukla has “disgraced the ‘values of judicial life’, acted in a manner unbecoming of a judge” to lower the “majesty, dignity and credibility of his office” and acted in breach of his oath of office.
Then CJI Misra had asked Shukla to either resign or take voluntary retirement. But he declined to do either, leading to Misra asking then Allahabad CJ D B Bhosale to immediately withdraw judicial work from him and simultaneously writing to the PM to initiate the removal process.
Salaries, allowances, assets
The government has accepted the Supreme Court proposal for raising emoluments given to judges of the apex court and high courts, commensurate with the recent hike in pay for central government staff.
The Chief Justice of India (CJI) is the highest-paid functionary in the judiciary with his current monthly emoluments at Rs 1 lakh, excluding dearness and other allowances. This is likely to be raised to Rs 2.8 lakh, in addition to perks such as official residence, cars, staff and allowances as applicable. The government has pegged the salaries of the chief justices of HCs and SC judges at Rs 2.5 lakh per month, in addition to allowances, at the level of the Cabinet secretary, the service chiefs and some constitutional functionaries such as the CAG and the CEC.The salary of an HC judge has been pegged at Rs 2.25 lakh a month, same as that of secretary-level officers in the central government. The hikes proposed by the Supreme Court committee have not been accepted in full. The three-judge panel had recommended a salary of over Rs 3 lakh per month for the CJI, besides other perks. The government has set the salary for the CJI at Rs 2.8 lakh per month, a little above what the cabinet secretary draws.
The judges' panel had also recommended a higher pension benefit for retiring judges. This again has been brought to the Seventh Pay Commission level in an equivalent grade.A three-judge committee had given its recommendations to the government a few months ago with regard to salary hikes for judges. The recommendations were submitted soon after the implementation of the Seventh Pay Commission recommendations for central employees in 2016.
A Cabinet note has been prepared and may be approved by the Union Cabinet soon, sources said. After the Cabinet clears the proposal, the law minister will bring a related judges' salary amendment bill before Parliament. Any change in judges' salary and service condition has to be passed by Parliament. The salaries of judges of the high courts and the Supreme Court are revised every 10 years, almost on the lines of the hikes given to senior government functionaries.
The salaries and allowances of the judges of India’s superior (supreme- and high-) courts: 2018
Officers of Supreme Court will now get ‘washing allowance’ of up to Rs 21,000 per annum, almost equal to a composite dress and washing allowance granted to the Special Protection Group and more than what officers of the Army, Air Force and Navy get every year for their dress and its maintenance.
At Rs 10,000 a year, soldiers of the armed forces and paramilitary forces, the CRPF and the BSF get far less to buy uniforms and wash them. Unlike the troops, officers of the apex court, including the topranking secretary general, will now get a washing allowance of Rs 1,750 a month.
According to a finance ministry order, the non-clerical staff of the Supreme Court will get a washing allowance of Rs 1,350 a month and the remaining staff Rs 1,250 per month. The new allowance will be effective from December 14, 2017.
After the seventh pay commission award, the government merged the washing allowance given to soldiers and officers along with the money granted for buying uniforms.
The washing allowance to the SC staff came after much haggling, with the Centre arguing that after the seventh pay panel they are allowed only for troops when subsumed with the dress allowance.
Prior to the pay panel award, soldiers and officers were allowed several allowances in the form of clothing allowance, initial equipment allowance, kit maintenance allowance, robe allowance, robe maintenance allowance, shoe allowance, uniform allowance and washing allowance. All these have now been subsumed in a single dress allowance.
2018: furnishing allowance doubled
Judges of the Supreme Court and the 24 high courts are set to get an enhanced furnishing allowance as the government has decided to amend the rules in this regard.
Official sources said a notification in this regard will be issued in the next few days. The furnishing allowance of Supreme Court judges will be doubled from the existing Rs 5 lakh. The furnishing allowance was last revised in 2009.
While the Chief Justice of India will be entitled to a furnishing allowance of Rs 10 lakh, the other judges of the apex court and the chief justice of the high courts will be entitled for Rs 8 lakh.
Till now, Supreme Court judges and chief justices of high courts were paid Rs 4 lakh for furnishing of their homes and offices.
An amendment will be made in the Supreme Court judges rules and high court judges rules through an executive order to be signed by the law minister.
For the judges of the high courts, the furnishing allowance has been raised from Rs 3 lakh at present to Rs 6 lakh. In the recently notified revision of salaries of judges of the Supreme Court and the high court, there was no provision for any allowance as all of that had been subsumed, similar to the Seventh Pay Commission award given to the central government staff.
Transfer of judges
The legal position; history 1963-2019
There are 1,079 judges in 25 high courts in the country. Between January 10, 2019, and February 12, 2020, the collegium headed by the Chief Justice of India recommended transfers of 24 judges and nine chief justices from one HC to another. This means, only three in 100 judges faced transfer in a year.
Most transfers went unnoticed by advocate associations. But in a few instances, advocate associations protested and even took the extreme step of boycotting court work. It is difficult to fathom why lawyers protest against the transfer of some judges but keep quiet for others.
Before the collegium came into force in the 1990s, transfer of judges was a mundane affair. It came under the spotlight during the dark days of Emergency, when 16 judges were transferred from one HC to another. The executive had wreaked vengeance against them for entertaining habeas corpus petitions filed on behalf of those detained under the Maintenance of Internal Security Act (MISA).
One of them, Justice Sankalchand Himatlal Sheth, was transferred from Gujarat HC to Andhra HC on May 27, 1976. He challenged the transfer saying he had not consented to it and that it breached law minister A K Sen’s promise to Lok Sabha in 1963 that “so far as HC judges are concerned, they should not be transferred excepting by consent”.
The Gujarat HC struck down the transfer. The Union government challenged it in the SC. Though the change of government in 1977 saw Justice Sheth being transferred back to Gujarat HC, a fivejudge SC bench went on to give an authoritative pronouncement on the issue of transfer. In the Sheth case [1977(4) SCC 193], the SC said sometimes transfer of a judge becomes a compulsion because of close nexus he develops with local interests. It had said, “The factitious local atmosphere sometimes demands the drafting of a judge or a chief justice from another HC and on rarest of rare occasions, which can be counted on the fingers of a hand, it becomes necessary to withdraw a judge from a circle of favourites and non-favourites.
“Though transfers in such cases are pre-eminently in public interest, it will be impossible to achieve that purpose if a judge cannot be transferred without his consent. His personal interest may lie in continuing in a court where his private interest will be served best, whereas, public interest may require that his moorings ought to be served to act as a reminder that ‘the place of justice is a hallowed place’. It is difficult to impose limitations on constitutional provisions as contained in Article 222 by importing the concept of consent which is conspicuously absent therefrom.”
Then came the ‘first judges case’ [S P Gupta; 1981 Supp (1) SCC 87], in which a sevenjudge bench reiterated the ruling in Sheth case and said there was no need of prior consent of a judge before his transfer. It was followed by the ‘second judges case’ in October 1993 and the ‘third judges case’ in October 1998. The second case laid the foundation for the ‘collegium system’, which allowed judges to select judges. It was expanded by the third case. In both cases, the SC had said plurality in decision-making by involving many other judges, while according primacy to the CJI, would rule out arbitrariness in selection of persons for appointment and transfer as high court judges.
It said a judge’s transfer could not be challenged before a court on any ground, including bias, except for the reason that there was improper consultation by the CJI before recommending to the government to transfer a judge. “Any transfer in accordance with the recommendation of the CJI cannot be treated as punitive or an erosion in the independence of judiciary,” it said. However, the SC did ask the CJI to take into account personal difficulties and preference for transfer of the judge concerned. However, 27 years ago, it did notice the nexus between certain judges and bar associations and the use of public interest litigation to challenge certain transfers and appointments. It had highlighted the “growing tendency of needless intrusion by strangers and busybodies in the functioning of the judiciary under the garb of public interest litigation”.
In S P Gupta case, the SC had said, “It has, however, to be made clear that it cannot be said that lawyers only, because they have a right to practice in a court, have ‘locus standi’ to file petitions in respect of every matter concerning judges, courts and administration of justice.”
And probably not many lawyers know that under Article 222, a judge transferred out of his parent high court to another state gets compensatory allowance.
Last year, Telangana HC advocates association protested the transfer of Justice P V Sanjay Kumar to Punjab and Haryana HC. It was followed by protests against Madras HC CJ V K Tahilramani’s transfer to Meghalaya HC. Lawyers even protested shifting of Justice Zaka Haq from Nagpur bench to Aurangabad bench of Bombay HC. And now, Delhi HC advocates abstained from work against the transfer of Justice S Muralidhar to Punjab and Haryana HC.
Most often, the ground for protest against transfer is that the judge is “upright and honest”. Does that mean other judges, whose transfers do not evoke protest, are not upright or honest? Is there a constitutional provision prohibiting transfer of ‘upright and honest’ judges? Can bar leaders spell out the real reason for protests against transfer of some judges?
Women judges in the Supreme Court and High Courts
Please see graphic:
Number of women judges in the Supreme Court and High Courts
2017: Lady CJs in Bombay, Calcutta, Delhi, Madras HCs
But Account For Only 10% Of 632 Justices
In the male-dominated world of higher judiciary, there is a silver lining -women now head the four major and oldest high courts in Mumbai, Delhi, Kolkata and Chennai.
With the appointment of Indira Banerjee as chief justice of the Madras HC on March 31, women created history by heading the four historical HCs, which were among the first few created in colonial India. Madras HC has six women judges, inclu ding the chief justice, while there are 53 male judges.
Bombay HC is headed by Justice Manjula Chellur, who first headed an HC on September 26, 2012. She became Bombay HC chief justice on August 22 last year. Incidentally, Bombay HC has the highest number of women judges, 11, against 61male judges.The number two in the HC is also a woman, Justice V M Tahilramani. Delhi HC has been headed by Justice G Rohini since April 13, 2014. The HC has nine women judges and 35 male judges. Here too, the number two is a woman, Justice Gita Mittal. Calcutta HC has been headed by acting chief justice Nishita Nirmal Mhatre since December 1 last year. But this HC has a poorer women-tomen-judge ratio -4 to 35.
Among the 632 HC judges in 24 HCs, there are only 68 women judges, a mere 10.7%.There is just one woman judge, R Banumathi, among 28 judges in the Supreme Court.
2017: Madras HC has highest number
By inducting four women as additional judges of the court on Friday, the Madras high court took the honour of having maximum number of woman judges on its rolls. The HC now has 11 woman judges, overtaking the Delhi high court which has 10.
The sanctioned strength of the Madras HC is 75, but it has only 60 judges now. This is the first ever occasion the number of women judges in the court has entered double digits, and a total of four woman judges were sworn in at a time. At least one-third of Tamil Nadu’s subordinate judiciary are only woman judges, as the state has been implementing one-third reservation for women.
Among other HCs of comparable size, while the Bombay HC has nine women judges, the one in Allahabad has just six women judges out of the sitting strength of 98.
2018: Madras HC tops with 12 women judges
The number of women judges in the Madras high court has touched the dozen-mark with the induction of Justice PT Asha on Monday. The HC now has the most women judges in the country.
Chief Justice Indira Banerjee administered oath of office to seven additional judges, including Justice Asha. The sitting strength of judges has increased from 56 to 63, as against the sanctioned 75.
2018: 9% of HC judges are women
In April 2017, Women Headed Four Major HCs; It May Take A Decade To Repeat The Feat
It was a historic moment in April 2017 when four women judges headed the most important high courts of Bombay, Delhi, Calcutta and Madras. But the Indian judiciary may have to wait for another decade to repeat the feat as women judges constitute barely 9% of the current working strength in high courts of the country.
The golden moment for women in judiciary, which got its first woman high court judge in Anna Chandy (Kerala) on February 9, 1959, lasted for less than two weeks in 2017 when Justices Manjula Chellur, G Rohini, Nishita Nirmala Mhatre and Indira Banerjee headed the high courts of Bombay, Delhi, Calcutta and Madras, respectively.
The spell was broken with retirement of Justice Rohini on April 13, 2017. Justice Mhatre retired on September 19 and Justice Chellur on December 4. Justice Banerjee had continued as Madras HC chief justice till recently before she was appointed as a judge to the Supreme Court.
With women as chief justices of the four high courts, two of them — Bombay and Delhi — also had women judges as the number 2 in Justice V K Tahilramani and Justice Gita Mittal respectively. Justice Tahilramani now heads the Madras HC and Justice Mittal is the CJ of Jammu and Kashmir HC.
In the 24 HCs with a sanctioned strength of 1,221 judges, there are only 891 in place (as of October 1) with 70 names being recommended in the last two months by the SC collegium for appointment as HC Judges. Of the 891 judges, only 81 are women (9% of the working strength or 6.6% of sanctioned strength).
More than 20 women judges appointed in the last one year failed to break the two-digit mark in terms of percentage for women judges. Of these, there are as many as seven who would be the judges to watch out for after a decade as they would be senior enough to head the HCs or even get appointed as judges of SC, which in its 68 year-old history had just eight women judges, including three sitting judges — Justices R Bhanumathi, Indu Malhotra and Indira Banerjee. Incidentally, Justice Malhotra is the first woman lawyer to be directly appointed as SC judge.
The seven judges who could be eligible to head high courts in a decade’s time are Justices Sangeeta Chandra of Allahabad HC, Bharati H Dangre of Bombay HC, Shampa Sarkar of Calcutta HC and Pratibha M Singh of Delhi HC (all with retirement scheduled for 2030). Justice Amrita Sinha of Calcutta HC (retirement scheduled for 2031) and Justice Anita Sumanth of Madras HC (retirement due in 2032) could also increase the number of women CJs at high courts after a decade. But, the youngest of them all is Justice Sindhu Sharma of Jammu & Kashmir high court (1972 born with retirement scheduled for 2034), who adds to the promise of a leap towards gender parity.
In the 24 HCs with a sanctioned strength of 1,221 judges, there are only 891 in place. Of the 891 judges, 81 are women, which is 9% of the working strength or 6.6% of sanctioned strength
Supreme Court: India (mainly SC's rulings)
Judicial appointments, senior: India mainly the Collegium debate
Judiciary, superior: India