Judges’ presser sharp­ened dou­ble-edged swords wielded by ac­tivist lawyers

The Times of India (New Delhi edition) - - | POLITICS POLICY - Dhanan­jay.Ma­ha­p­a­[email protected] times­group.com

It was Fri­day, Jan­uary 12, 2018. Fri­days in Supreme Court are busy days. But four se­nior­most judges wound up ju­di­cial work in 45 min­utes. The SC cor­ri­dor was agog with ru­mours about an im­pend­ing un­prece­dented press con­fer­ence by them. Jour­nal­ists rushed to Jus­tice Jasti Che­lameswar’s of­fi­cial res­i­dence. His­tory was made. The ru­mours came true. The judges cor­nered then CJI Di­pak Misra.

But Jus­tice Che­lameswar donned a wor­ried look, his gaze fixed at the en­trance of his res­i­den­tial bun­ga­low. Ex­plain­ing the worry lines on his fore­head, he had said, “If the three john­nies don’t come, I will be in a soup as I had put my neck out.” The three — Jus­tices Ran­jan Go­goi, Madan B Lokur and Kurian Joseph — trooped in a lit­tle later. Jus­tice Che­lameswar sported a smile of re­lief.

We all know what hap­pened later — how an ac­tivist lawyer at­tended the presser, was stopped from ask­ing ques­tions by jour­nal­ists and was clos­eted with Jus­tice Che­lameswar im­me­di­ately after the press con­fer­ence. How a Left leader went to meet Jus­tice Che­lameswar, how the presser was used to ex­ert pres­sure on the then CJI by politi­cian-lawyers to de­fer ad­ju­di­ca­tion of Ay­o­d­hya case and how it be­came aground for mov­ing an un­prece­dented re­moval mo­tion by Con­gress against the then CJI in Par­lia­ment.

The presser fur­ther un­nerved CJI Misra, who was on the back foot since Novem­ber 2017 when Jus­tice Che­lameswar at­tempted to snatch the CJI’s power as ‘master of ros­ter’ by set­ting up a five­judge bench to hear a pe­ti­tion by ‘fo­rum hunt­ing’ ac­tivist-lawyers seek­ing a probe into the CJI’s al­leged role in the med­i­cal col­lege ad­mis­sion scam.

CJI Misra had to hur­riedly set up a five-judge bench to an­nul Jus­tice Che­lameswar’s or­der and reit­er­ate the CJI’s sole pre­rog­a­tive in as­sign­ing a case to a par­tic­u­lar bench and de­ter­min­ing the num­ber of judges on the bench. The CJI was damned by both the rebel judges and the ac­tivist-lawyers for al­lo­cat­ing cases of na­tional im­por­tance ar­bi­trar­ily to select benches of “ju­nior” judges per­ceived to have po­lit­i­cal lean­ings.

Less than a year later, CJI Ran­jan Go­goi no­ti­fied a five-judge con­sti­tu­tion bench to ad­ju­di­cate the Ay­o­d­hya land dis­pute case. It sur­prised many as a three-judge bench on Septem­ber 27 had re­jected a de­mand for its ref­er­ence to a five-judge bench and ruled that a three-judge bench would de­cide it.

CJI Go­goi ex­plained that he used his ple­nary pow­ers un­der Or­der VI Rule 1 of Supreme Court Rules, 2013, to set up the five-judge bench. On won­ders why the same rule was not the saviour for CJI Misra when he set up a five-judge bench for re­it­er­a­tion of the CJI’s pre­rog­a­tive in al­lo­cat­ing cases to a bench and its nu­mer­i­cal strength. While CJI Mishra was damned, the Mus­lim par­ties hailed CJI Go­goi say­ing “this is how a CJI must act”. If a CJI’s or­ders are favourable, ac­tivist-lawyers waste no time in crown­ing him as the most in­de­pen­dent judge on earth.

Al­lo­ca­tion of pe­ti­tions seek­ing probe into al­leged sus­pi­cious death of ju­di­cial of­fi­cer B H Loya to a bench headed by Jus­tice Arun Mishra had trig­gered the Jan­uary 12 presser. Jus­tice Mishra re­cused. A that he was worse than CJI Misra. These lawyers have al­ready started dig­ging into the past to find some link to brand CJI Go­goi as close to the gov­ern­ment. Such is the dan­ger for a CJI.

After his re­tire­ment, Jus­tice Che­lameswar had boasted that he had strived for trans­parency and ob­jec­tiv­ity in the col­legium process for se­lec­tion of judges to the SC and HCs. When he was part of the col­legium, Jus­tice Che­lameswar had taken ad­van­tage of the then CJI’s pro­posal to abruptly change an ear­lier rec­om­men­da­tion — a Kar­nataka HC judge’s trans­fer to Bom­bay HC was to be an­nulled and he was to be sent to Al­la­habad HC.

Jus­tice Che­lameswar agreed, but with a quid pro quo — trans­fer a Ker­ala HC judge to Andhra Pradesh HC even though he knew that the HC judge, prior to his ap­point­ment, had given an af­fi­davit to the SC to never press for his trans­fer back to AP HC. The CJI had to agree. But the Union gov­ern­ment re­fused to act on this rec­om­men­da­tion.

The CJI Go­goi-headed col­legium has now rec­om­mended trans­fer of that Ker­ala HC judge to Bom­bay HC, su­per­sed­ing its ear­lier rec­om­men­da­tion. What is the sta­tus of trans­parency and ob­jec­tiv­ity, both then and now, which the judges’ press con­fer­ence had pressed for?

In SP Gupta case [1981 (sup) 1 SCC 87], de­scribed as the first judges’ case, the SC had said, “Un­for­tu­nately, it is the eas­i­est thing to make false, reck­less and ir­re­spon­si­ble al­le­ga­tions against judges in re­gard to their hon­esty and in­tegrity and in re­cent times, the ten­dency has grown to make such al­le­ga­tions against judges be­cause they have de­cided the case in a par­tic­u­lar man­ner, ei­ther against a dis­sat­is­fied lit­i­gant or con­trary to the view held by a group or, sec­tion of politi­cians or lawyers or mem­bers of pub­lic.”

How true to­day after nearly 40 years! When Jus­tice Go­goi took um­brage to the Loya case al­lo­ca­tion dur­ing the presser, ac­tivist-politi­cian lawyers hailed him as the epit­ome of hon­esty, in­tegrity, in­de­pen­dence and fear­less­ness. In less than a year, the same lawyers have turned against him merely be­cause he re­fuses to be cowed down by their tac­tics and con­tin­ues to de­cide cases on merit, with or with­out meet­ing their ex­pec­ta­tions. Such is the life of a CJI, very lonely and un­nerv­ing.

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