By K Raveendran
It may not have been as high-profile as the ‘call of national duty’ press conference by the four senior most judges of the Supreme Court about six years ago. But the renewed controversy about the master of the roster, prompting two senior advocates of the apex court to write to Chief Justice D Y Chandrachud encompasses as profound issues as those raised in the previous instance.
Activist advocates Dushyant Dave and Prashant Bhushan have shot off angry letters to the CJI over abrupt change in the composition of benches supposed to hear sensitive cases. Their immediate provocation was the de-listing of petitions challenging the invocation of the anti-terror law UAPA and criminal charges against journalists, advocates and others from a bench headed by Chief Justice Chandrachud and their reposting before other judges. They are peeved by the fact that the cases mostly related to human rights violations, freedom of speech and democracy. Their contended that this was in violation of the established rules. There have been rulings in the past that related matters should be tagged and heard by a bench headed by the CJI.
The complaint added further bite by quoting a remark by Justice Sanjay Kishan Kaul, the second most senior judge in the Supreme Court, who is set to demit office later this month, about how a matter related to delay in the appointment of high court judges on the part of the Centre was deleted from the list of cases assigned to the bench headed by him. In fact, Justice Kaul said, “Some things are left best unsaid,” obviously expressing his displeasure over the change. The chief justice is aware of this, he had added.
The infamous press conference by the four judges in 2018 was about the same issue of alleged bench hunting, which means that the problem is still persisting. The historic presser, though failing to achieve much of what the judges sought, had prompted certain actions to bring about some order in the work of the roster. The four judges had staged a virtual revolt against the then chief justice Dipak Misra by asserting that things were not in order with the apex court and that the practice being followed would destroy Indian democracy.
A couple of months before the press conference, they had written to the CJI alleging ‘selective assignment of cases to preferred judges’ and that ‘sensitive cases were being allotted to junior judges’. They resorted to the unprecedented step of going to the press as the letter did not elicit any positive response from the CJI. The provocation was the exclusion of the four seniormost judges from a bench that was supposed to hear a petition demanding an independent enquiry into the death of Justice Loya, who was hearing a case in which Union Home Minister Amit Shah, who was at that time the BJP president, was accused of murder. That was clearly a case of bench hunting, the judges suggested.
“It’s an extraordinary event in the history of this institution. The administration of the Supreme Court is not in order. Many things that are less than desirable have happened in the last few months,” said Justice J. Chelameswar, leading the four judges. The other judges were Ranjan Gogoi, Madan Lokur, and Kurian Joseph. They have all retired from the apex court for long, but the issue raised by them continues to dog the functioning of the highest court of the land.
At the centre of the latest controversy is a petition challenging the terror cases registered at Agartala police station against Mukesh Kumar, an advocate who had published a fact-finding report on communal violence in Tripura, and a journalist who had criticised the Tripura government’s alleged inaction towards protecting Muslim citizens during the violence. The petition challenges the validity of the controversial UAPA law, which is increasingly being used to target critics and political adversaries of the Modi government. Prashant Bhushan is appearing on behalf of Mukesh Kumar and is worried about the change of bench from the one headed by Chief Justice D Y Chandrachud to the one headed by Justice Bela Trivedi.
In a tone similar to what the four judges had presented at their press conference, proclaiming that they would be failing the nation by not raising the disorder in the highest judiciary, advocate Dushyant Dave said in his open letter to the CJI that while he holds CJI Chandrachud in high esteem he will be “failing in my duty imposed by the Supreme Court itself when it held that, the lawyers are supposed to be fearless and independent in the protection of rights of litigants” and “what lawyers are supposed to protect, is the legal system and procedure of law of deciding the cases”. (IPA Service)