12th January, 2018 would go down as one of the most significant days in the history of judiciary in independent India. Never before the four senior most judges of the highest court of this country, Justice J. Chelameshwar (second senior most judge), Justice Ranjan Gogoi (next in line to be the Chief Justice of India), Justice Madan Lokur and Justice Kurien Joseph, addressed the media nor the media had any precedent of interacting with the judges openly in public. The novelty of the situation did not obfuscate the solemnity of the occasion, wherein the four senior most judges had to appeal to the public that ‘democracy was in peril’. The judges circulated a letter in the media, which reflected their deep disaffection with the way things are presently functioning in the Supreme Court of India, especially the manner in which the current Chief Justice of India, Shri Dipak Mishra, is distributing important cases to different benches of the Court.
The letter sought “to highlight certain judicial orders passed by this Court which has adversely affected the overall functioning of the justice delivery system and the independence of the High Courts, besides impacting the administrative functioning of the office of the Hon’ble Chief Justice of India.” Significantly, it noted that “there have been instances where case having far-reaching consequences for the nation and the institution had been assigned by the Chief Justice of this Court selectively to the benches ‘of their preference’ without any rationale basis for this assignment.”
The importance of the action of the judges was not lost on anyone, whether lawyers, judges, media, politicians and even the common public. No matter whether one agreed with their action or not, one thing was crystal clear that things have to such a head in the highest judiciary of this country, wherein the time-honoured practice of judges resolving their differences internally within the four walls of their chambers did not seem to work anymore. Also, it opened a pandora’s box, as expected. Allegations and suspicions about ‘bench fixing’ have been the subject of court gossip for decades, wherein lawyers would proudly claim to get ‘certain orders’ from ‘certain benches’. But this was the first time the four senior most judges of this country gave credence to those rumours, thereby casting serious doubt about the state of administration of justice in India, particularly at the apex level. At the same time, the press conference brought to light the pressing and urgent need to repair the ‘broken system’, wherein the independence of judiciary was at stake, both from within and outside the judiciary.
The crux of the issue is that the CJI allegedly has been improperly exercising his powers as what is called ‘Master of the Roster’, wherein the CJI, as part of his administrative powers, is entitled to assign cases to particular benches, depnding on the subject matter and the expertise of the judges as well as their availability. This power is to be exercised within constitutional bounds and cannot be used in an arbitrary manner. The four senior most judges in their letter have given one example, i.e., R.P. Luthra vs. Union of India, wherein the Memorandum of Procedure for the appointment of judges was the bone of contention between the Executive and the Judiciary. Media has highlighted several other instances of where particularly sensitive cases were sent to benches of junior judges and were then dismissed. The most glaring example is that of Medical Council of India scam case filed by Campaign for Judicial Accountability and Reforms (CJAR’), wherein Prashant Bhushan sought a court monitored investigations into allegations of judicial corruption to get favorable orders from the Supreme Court. After J. Chelameshwar had set up a Constitution Bench of 5 senior most judges to examine the issue, the CJI annuled that order, and set up another bench of 5 judges, which dismissed the CJAR petition in November, 2017. The split in the Court was wide open that time too. The final trigger seems to be the case of CBI Judge B. Loya, who died in mysterious circumstances in 2014, while he was hearing the trial of alleged false encounter of Sohrabuddin Sheikh and two others, where Amit Shah was prime accused. Demands for independent investigation into his death have been echoed from all quarters, with cases being filed in both Bombay High Court and the Supreme Court. On 12th January, the case was listed in Supreme Court before a junior bench presided by a judge whose independence in the matter was in doubt, and Senior lawyers like Dushyant Dave and Indira Jaising requested the bench in Supreme Court to not take up the PIL, since it was already pending in Bombay High Court. The Court declined the request and proceeded with the matter. This case again raised serious doubts about the way CJI was alloting cases to different benches.
Subsequently to the four judges’ protest, reactions have come thick and fast. While Bar Council of India has requested the Court to sort out the issues internally, the Supreme Court Bar Association has passed a resolution that all public interest litigations should be either taken up by the CJI, or if assigned to any other Bench, it should be assigned to judges in a collegium. Very importantly, four former judges of India have written to the CJI, expressing their support for the concerned four judges, and asked for clear rules for allocation of benches and distribution of cases, which are fair and just. They have also stated that till the time such rules are framed, “all sensitive and important cases must be heard by a bench of five senior most judges” of the Court.
As this articles is being written, no word has come from CJI about resolving the crisis or any remedial action is evident. In fact, Late Judge Loya’s case is being heard by the same Bench, against whom serious reservations had been expressed, and the CJI has set up a Constitution Bench that would hear extremely important matters like Aadhaar, constitutionality of adultery, Section 377, IPC, the issue of women entry into Sabarimala temple, etc, without any of the senior most judges on the Bench.
As is evident, the crisis in the Court and in the administration of justice is quite deep and had been brewing for decades. The attempt to build a ‘committed judiciary’ has been in the works for long, but it is now that one is actually seeing the disaster that would unfold if those attempts are succesful. The four judges have done their constitutional duty by speaking out against any such attempt, but it is now up to the fellow judges, lawyers and jurists, and most importantly, the citizens of this country to fight for the soul of our democracy, i.e., an independent and impartial judiciary. There is no escape from that.
Major decisions –
- Writ Petition challenging the constitutional validity of Section 377, IPC sent to a larger bench – In a surprising development, the Supreme Court referred a writ petition challenging the validity of Section 377, IPC, which criminalises anal, oral and other penile non-vaginal sexual acts between two individuals, irrespective of age and consent, to a larger bench. The Court observed that its own decision upholding the validity of the law in December, 2013 needed reconsideration. The reference is a matter of surprise, since there are 8 curative petitions pending in the Supreme Court before a Constitution Bench, which is yet to be set up, against the same judgment upholding Section 377. Further, the Court did not say that both these matters would be heard together, thereby creating a situation that two cases on the same issue of the validity of Section 377, IPC is now pending before two benches. [Navtej Johar & Ors. vs. Union of India, Writ Petition (Criminal) No. 76 of 2016, date of order: 08.01.2018]
- Playing of National Anthem no longer mandatory in cinema halls: The Supreme Court modified its earlier order of making the playing of national anthem mandatory in all cinema halls in the country, which was passed in November, 2016. The Court stated that playing of national anthem would no longer be mandatory, but optional, and if a theatre chose to play the national anthem, then everyone present would have to stand up to show respect, except those exempted owing to some for disability. The change in the Court’s stand was owing to the Government’s submission that they had set up a Committee to frame guidelines regarding the playing of national anthem and till the time the guidelines are finalised, it should not be made mandatory. [Shyam Narayan Chouksey. Vs. Union of India, Writ Petition (Civil) No. 855 of 2016, date of order: 09.01.2018]
- Demand for court monitored investigation in Kalburgi’s Case: The Supreme Court sought responses from the Central Government, three states of Maharashtra, Goa and Karnataka and from CBI and NIA on a petition seeking an independent court monitored investigation, through a Special Investigation Team (‘SIT’) into the horrific murder of late Professor M.M. Kalburgi in August, 2015 in Maharashtra. The petition, filed by the late professor’s wife, Smt. Uma Kalburgi, highlighted the tardy progress made in the investigation in the last two years and the complete lack of coordination bewteen CBI and the State Governments. [ Umadevi Kalburgi vs. Union of India, Writ Petition (Criminal) No. 212 of 2017, date of order: 10.01.2018]
- Fresh investigation into 186 anti-Sikh riots cases by a new SIT: The Supreme Court in a significant order directed fresh investigation into 186 anti-Sikh riots cases, which were closed before, to be carried out by a new SIT headed by a retired High Court judge. This order was passed pursuant to the report of the Committee set up by the Court to examine the report filed by the SIT set up by the NDA Government in 2015, which sought closure of almost 200 cases. The Court appointed Committee found that out of 241 cases, 186 cases were closed without investigation. The SIT will be headed by Justice S.N. Dhingra (Retd.) and one former IPS officer and one current IPS officer. [ Gurnad Singh Kahlon vs. Union of India, Writ Petition (Civil) No. 9/2017, date of order: 10.01.2018]
- Rape and other sexual offence laws ought to be made gender neutral: A petition has been filed in the Supreme Court challenging the validity of Sections 354, 354A, 354B, 354C, 354D and 375 of the Indian Penal Code on the basis that all these offences are gender specific, i.e., the accused is a man, while the victim is a woman. The petition contends that this constitutes discrimination on the ground of ‘sex’, which is impermissible under Articles 14 and 15 of the Constitution. It further states that “the law does not and should not distinguish between criminals and every person who has committed an offence is liable to punishment under the Code”. [Rishi Malhotra vs. Union of India, Writ Petition (Criminal) No. 7 of 2018]
- Patent working information is not confidential in nature: The Delhi High Court directed that patent working information was not confidential and required to be filed by all patentees on a mandatory basis. The Court was hearing a petition highlighting major non-compliance with statutory requirements under the Patents Act, 1970. The law requires that all patentees have to submit information periodically to the Patent Controller about how their patents are working, in order to ensure that patents granted are utlised properly and not lying unused. [Shamnad Basheer vs. Union of India, Writ Petition (Civil) No. 5590 of 2015, date of order: 10.01.2018]
- Himachal Pradesh’s policy of prohibition on cannabis cultivation challenged: The Himachal Pradesh High Court issued notice on the Centre and the State Government on a petition challenging the policy of total prohibition on cannabis cultivation and burning of cannabis plants. The petition sought to highlight the potential use of hemp for commercial and industrial purposes as well as for sustainable agriculture. It also noted the potential for medical use of cannabis, especially in case of cancer treatment and other diseases. It further stated that the present policy of burning the cannabis plant not only causes environmental pollution, but also causes a great loss to bio-diversity and the eco-system, the plant is also essential for maintaining the richness of the soil cover. [Deshinder Khanna v. State of H.P., Civil Writ Petition No. 83 of 2018, date of order: 08.01.2018]
- Provision providing for attachment of properties under the money laundering law upheld: The Delhi High Court upheld the validity of the law providing for attachment of ‘any property of any person’ under Section 5(1) of the Prevention of Money Laundering Act, 2002 (‘PMLA’) if the Authorities have reasons to believe that non-attachment would frustrate any proceeding under the Act. The Petitioners had challenged the provision as being ‘manifestly arbitrary’, and therefore violative of Article 14 of the Constitution. Rejecting the contention, the High Court held that there are sufficient procedural safeguards to ensure that the power to attach properties would not be abused or used in an arbitrary manner [ Sekar & Ors. v. Union of India, Writ Petition (Civil) No. 5320/2017, date of judgment: 11.01.2018]
- Aadhaar made mandatory for bail sureties in Chattisgarh: The Chattisgarh High Court has directed that all the trial courts to obtain copy of the Aadhaar card of the accused as well as of the surety, while examining surety papers submitted along with bail applications, in order to reduce instances of forged sureties for bail. The High Court also directed the trial courts to verify all revenue papers before releasing the accused on bail. This order is surprising, in light of the fact that constitutional validity of the Aadhaar Act itself is presently pending in the Supreme Court. [Ved Prakash Gupta vs. State of Chattisgarh, MCRC No. 3967 of 2017, date of order: 05.01.2018]
Other Legal Developments
- Indu Malhotra, Senior Advocate, elevated as a judge on the Supreme Court: In a first development, Indu Malhotra, Senior Advocate, has been recommendation for elevation as a judge on the Supreme Court by the Supreme Court collegium from the Bar. Another recommendation was that Shri K.M. Thomas, Chief Justice of the Uttarakhand High Court, has also been recommended for elevation as Supreme Court judge.