Who dic­tated the de­ci­sions of for­mer CJI Di­pak Misra?

The Northlines - - OPINION - Olav Al­bu­querque Dis­claimer:

That for­mer CJI Di­pak Misra al­legedly al­lot­ted sen­si­tive cases like the mys­te­ri­ous death of Judge B H Loya to benches of his choice "as he was re­mote con­trolled by some ex­ter­nal source and this im­pacted the ad­min­is­tra­tion of jus­tice," has been the most ex­plo­sive rev­e­la­tion made by a Supreme Court judge in In­dian ju­di­cial his­tory. The for­mer CJI has cho­sen not to re­but the charges against him.

Jus­tice Kurian Joseph, who waited till he re­tired on Novem­ber 29 to re­veal this, was the third se­nior­most judge of the col­legium which was ac­cused by Jus­tice Jasti Che­lameswar of be­ing spec­ta­tors in ap­point­ment of high court and supreme court judges. Che­lameswar had also in­di­rectly in­dicted Jus­tice Arun Mishra for be­ing cho­sen to hear the pe­ti­tion de­mand­ing a probe into Judge Loya's mys­te­ri­ous death.

Jus­tice Mishra, who has been ac­cused of be­ing "friendly" with BJP lead­ers who met at his home, will join the col­legium on De­cem­ber 31, 2018 af­ter Jus­tice Madan Lokur re­tires. When Jus­tice Sharad Bobde is sworn in as the next CJI on Novem­ber 18, 2019, Jus­tice Mishra will play a vi­tal role in se­lect­ing high court and apex court judges.

Adding fuel to the rag­ing fire is the fact that Prime Min­is­ter Naren­dra Modi said the apex court should be free of any "in­flu­ence" while the Congress has de­manded a dis­cus­sion in Par­lia­ment on the is­sue. This has vin­di­cated their at­tempt to im­peach CJI Misra which they aban­doned ear­lier for God knows what rea­son.

A con­tro­ver­sial lawyer from Nag­pur, Satish Uke, has filed a writ pe­ti­tion in the Nag­pur bench of the Bom­bay high court al­leg­ing that Judge Loya was killed by an over­dose of ra­di­a­tion. He has sought seizure of all records and sent the pur­ported ev­i­dence to a num­ber of dig­ni­taries af­ter claim­ing his life was in dan­ger.

Three benches of the Nag­pur high court have re­cused from hear­ing this writ pe­ti­tion be­cause the judges be­fore whom it came up were present at the wed­ding of Jus­tice Swapna Joshi's daugh­ter. A twom­onth jail sen­tence for com­mit­ting con­tempt of court and be­ing de­barred from prac­tice for one year has not less­ened Satish Uke's ar­dour to ex­pose in­jus­tice. He al­leged he was of­fered a bribe to hand over ev­i­dence of the ra­di­a­tion to cer­tain politi­cians.

But to re­turn to Jus­tice Joseph's rev­e­la­tion, the judge said it was CJI Misra's se­ries of ac­tions which led the col­legium to in­fer he was "be­ing re­mote con­trolled un­der some ex­ter­nal in­flu­ence." His al­le­ga­tion is stun­ning be­cause the ju­di­ciary is the­o­ret­i­cally in­su­lated from any pres­sure. And if this is not true, "democ­racy is in dan­ger" as Jus­tice Che­lameswar de­clared to the na­tion on Jan­uary 12, mak­ing this the se­cond black­est day in In­dian ju­di­cial his­tory, af­ter April 26, 1973 when Jus­tice A N Ray su­perceded three judges se­nior to him to be­come the CJI, at Indira Gandhi's be­hest. Jus­tice Hi­day­at­ul­lah boy­cotted the swear­ing-in func­tion. The Pres­i­dent is the head of both the ex­ec­u­tive and the leg­is­la­ture be­cause un­less he ad­min­is­ters the oath of of­fice to each min­is­ter or MP, nei­ther the gov­ern­ment nor Par­lia­ment comes into ex­is­tence but he has no role to play in se­lect­ing judges apart from sign­ing their war­rants of ap­point­ment and swear­ing in the CJI. The CJI is nei­ther sub­or­di­nate to the prime min­is­ter nor to any other con­sti­tu­tional of­fice, which is why judges of the con­sti­tu­tional courts re­tire at mid­night of their 62nd or 65th birth­day. The CJI is sworn to up­hold the Con­sti­tu­tion and the fun­da­men­tal rights of the In­dian peo­ple "with­out fear or favour, af­fec­tion or ill will." And if he keeps pro­claim­ing, he is the mas­ter of the ros­ter to as­sert his monopoly in as­sign­ing cases to benches of his choice - there is some­thing amiss. Even as mas­ter of the ros­ter, he needs to be as­sisted by the col­legium to en­sure cases are al­lot­ted for de­liv­ery of jus­tice and not in­di­vid­ual pro­cliv­i­ties of cer­tain judges. The CJI is mas­ter of the ros­ter for the wel­fare of the peo­ple and not for the wel­fare of the ex­ec­u­tive.

The col­legium sys­tem of ap­point­ing judges was de­vised in 1956 be­cause the found­ing fa­thers never en­vis­aged such a mech­a­nism. Prior to the first judges' case, it was the PMO who se­lected and trans­ferred judges. To­day, we have a sit­u­a­tion where Jus­tice In­dra­jit Mo­hanty has been trans­ferred from the Orissa high court to the Mum­bai high court in the "in­ter­ests of the ad­min­is­tra­tion of jus­tice." An IAF ser­vice­man, Jayanta Ku­mar Das from Orissa had com­plained about him but was al­legedly de­nied the find­ings of the supreme court com­mit­tee which probed his com­plaint.

We have a sit­u­a­tion where in the past, judges like Chen­nai high court judge N Aru­mugham, ac­cused of be­ing close to the late Tamil Nadu chief min­is­ter Ja­yaram Jalalithaa, Gu­jarat high court judge V H Bhairavia and Al­la­habad high court judge Vi­jay Bahuguna were trans­ferred to the Bom­bay high court so lit­i­gants were un­aware of the com­plaints against them. Bahuguna re­signed as a high court judge af­ter al­le­ga­tions of cor­rup­tion and later re­signed as chief min­is­ter of Ut­tarak­hand for mis­us­ing flood re­lief funds.

Congress leader Ba­harul Is­lam was made a Supreme Court judge by the Indira gov­ern­ment in De­cem­ber 1980 af­ter he re­tired as a high court judge. Six weeks be­fore he re­tired, Is­lam ex­on­er­ated the then Congress chief min­is­ter of Bi­har, Ja­gan­nath Mishra, in a forgery case. A month later, he con­tested as the Congress can­di­date for the Bar­peta Lok Sabha seat, em­u­lat­ing Vi­jay Bahuguna.

We will for­ever re­main in­debted to judges like Ran­jan Go­goi, Jasti Che­lameswar, Kurian Joseph and Madan Lokur for en­sur­ing what for­mer CJI Di­pak Misra did was not kept se­cret. These were the bright­est days in In­dian ju­di­cial his­tory. Olav Al­bu­querque holds a PHD in law and is a lawyer-cum-jour­nal­ist of the Bom­bay high court.

( The views ex­pressed here are per­sonal opin­ions of the writ­ers. The in­for­ma­tion, facts or opin­ions ap­pear­ing in the ar­ti­cles do not re­flect the views of The North­lines and it does not as­sume any re­spon­si­bil­ity or li­a­bil­ity for the same).

Newspapers in English

Newspapers from India

© PressReader. All rights reserved.