For the first time ever, the collegium of the senior most judges of the Supreme Court has begun to make the minutes of the meetings at which the appointment of judges to the High Courts and Supreme Court are made, available on its website. The move comes a few days after the Collegium decided to transfer Justice J. Patel from the Karnataka High Court to the Allahabad High Court, leading to his resignation. The decision had attracted criticism from lawyers across the country, calling for more transparency in the decision making process.
The Collegium itself was a creation of the Supreme Court, which emerged after a series of decisions seeking to ensure judicial independence, culminating in a judgment of a nine judge bench in 1998 holding that in decisions relating to the appointment of judges, the judiciary had the final say over the executive. It further held that the appointment of judges to the Supreme Court was to be decided by the Chief Justice of India, in consultation with four of the senior most judges of the Court. Judges of the high courts are appointed by the three senior most judges of the Supreme Court in consultation with the chief justice of the concerned high court and the second senior most judge.
The collegium system was not without criticism. Serious allegations have been made in the past relating to towing the line of the executive, favourtism and nepotism. In 2016, Justice J. Chelameshwar refused to attend the meetings of the collegium, wiriting a letter to the Chief Justice that there was no record of the meetings and no transparency associated with them. He is the second senior most judge of the Supreme Court at the moment.
It may be recalled that the Government sought to bring in a National Judicial Appointments Commission through an Act, which was struck down by the Supreme Court in 2015 as it found, amongst other things, that the composition of the Commission allowed for the executive to have supremacy.
The decision to make the proceedings of the collegium is landmark and will hopefully bring in better decision making in the judicial appointment process.
Major Decisions –
i. Challenge to Finance Act amendments on political funding: The Supreme Court has issued notice on a petition, which challenges the provisions of the Finance Act, 2017 and Finance Act, 2016. The two Acts were used to amend a number of other laws, like the Companies Act, Income Tax Act, Representation of People’s Act, Reserve Bank of India Act and Foreign Contribution Regulations Act, to allow for different forms of political funding. Two of the main aspects of challenge are the concept of electoral bonds, which did not have to be disclosed under the Representation of Peoples Act, 1951 and therefore allowing anonymous funding. Further, the Foreign Contribution Regulation Act, 2010, was also amended to allow foreign companies with subsidiaries in India to fund political parties in India [Association for Democratic Reforms and Anr. v. Union of India, W.P.(Crl.) 880/2017, order dated 03.10.2017].
ii. Government asked to examine alternate methods of executing persons: The Supreme Court has asked the Central Government to examine a petition, which seeks the execution of persons sentenced to death be carried out in a less painful manner than the current method of hanging. The Court observed that some countries had adopted an intraveous lethal injection. The Court felt that death ought to be caused with no pain and in a dignified manner. It has asked for the assistance of the Attorney General in the matter [Rishi Malhotra v. Union of India, W.P.(Crl) 145 of 2017, order dated 06.10.2017].
iii. SC expresses change of opinion in Hadiya case: The Supreme Court made observations in the Hadiya cases, signalling a change of opinion from the previous orders passed by a bench headed by Retd. CJI J.S. Kehar. The new bench, headed by the Chief Justice Dipak Mishra questioned whether an adult woman could be kept in the custody of her father against her consent. It futher raised doubts about the order of the High Court annulling the marriage in a case where the issue did not arise at all. The State of Kerala has made a submission that no crime was committed to occasion investigation by the National Investigation Agency [Shafin Jahan v. Ashokan K.M and Ors., SLP(Crl.) 5777 of 2017, order dated 03.10.2017]
iv. Contracts to be interpreted as per their express terms and not those which are implied: The Supreme Court reiterated that commercial courts ought to read contracts as per the terms expressly contained and not acoording to terms implied by the contract. The Court observed that the process of drafting a contract is a technical one, which is undertaken by experts. It further held that parties had an opportunity to clarify and knew what they were getting into [Nabha Power Ltd. v. Punjab State Power Corporation Ltd., Civil Appeal No. 179 of 2017, judgment dated 05.10.2017]
v. Directions for speedy disposal of cheque bounce cases: The Supreme Court has passed a series of directions to streamline cheque bouncing cases, with a view to ensure theirquick disposal. The Court held that if the person has adequately compensated the complainant, the case can be closed, even if the complainant did not consent to it. It also passed directions seeking to speed up the recording the evidence in such cases. It was observed that cheque bouncing cases choke the criminal justice system [M/s. Meters and Instruments Private Limited & Anr. v. Kanchan Mehta, Cr. Appeal 5451 of 2017, judgment dated 05.10.2017].
vi. SC to examine petition seeking re-investigation into assassination of Gandhi: The Supreme Court will consider a petition, which has sought a fresh investigation the assasination of Gandhi. The petition claims that an organisation was behind the murder and there are documents to substantiate the claim. While the Court was initially not inclined to entertain the case, it eventually asked senior advocate Amrander Sharan to assist it [Dr. Pankaj Kumuchandra Phadnis v. Union of India, Diary No. 15103/2017, order dated 06.10.2017].
vii. Gujarat High Court permits Zakia Jafri to seek further investigation into state administration’s role in Gujarat riots:The revision petition filed by Zakia Jafri, wife of murdered legislator, Ehsan Jafri, was partly allowed by the Gujarat High Court, which granted her liberty to seek further investigation regarding a larger conspiracy involving the state administration’s involvement in the 2002 riots. The Metropolitan Magistrate had previously rejected the complaint and accepted the closure of the Special Investigation Team, appointed by the Supreme Court [Zakia Ahsan Jafri v. Special Investigation Team, Cr. Rev. App. 205 of 2014, judgment dated 05.10.2017].
viii. Karnataka HC strikes down forest development fee: The Karnataka High Court has struck down an amendment to the Karnataka Forest Act, which imposed a Karnataka Forest Fee retrospectively from 2008. The Act had been challenged by mining companies, including Vedanta Ltd. The Court found that there was no constitutional basis for the collection of the tax. The order reportedly will affect the collection of Rs. 3,000 Cr. in the State [B. Rudragouda v. State of Karnataka, W.P. 43937 of 2016, judgment dated 04.10.2017] .
ix. Bom HC holds that acquisition lapses if possession not taken: The Bombay High Court has held that land acquisition under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 lapses, if possession fails to take place. The Court was considering a case where the order of acquisition had been passed 13 years prior to the Act coming into force, despite which the land was still in the possession of the owner and the compensation had not been paid [Babasaheb Genuji Shedge (Kadam) v. Sub-Divisional Officers, Bhor, W.P. 8265 of 2015, order dated 25.09.2017].
x. NCLT dismisses Cyrus Mistry’s application to transfer Tata case; imposes fine: The National Company Law Tribunal (Mumbai Bench) has dismissed an application on behalf of Cyrus Mistry that the case opression andmismanagement, filed on behalf of minority shareholders in Tata Sons, be transferred from one of the benches of the Tribunal. The application was based on the apprehension of bias as the same bench had found against Mistry on a preliminary issue. The Principal Bench however rejected the application and imposed a fine of Rs. 10 lakhs [Cyrus Investment & Anr. v. Tata Sons Ltd. & Ors., C.A. 350(PB)/2017, order dated 06.10.2017].