Judiciary, superior: India
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Elevation of High Court Chief Justices to Supreme Court
From the archives of The Times of India 2010
Retired hurt: Does Justice Shah have valid cause to complain?
Since 2000, 43 CJs Of 18 High Courts Couldn’t Make It To SC
Dhananjay Mahapatra
Abowler is allowed to aim two bouncers per over at batsmen. Sometimes, the bouncers catch batsmen by surprise and they either lose their wicket or get hurt. But no batsman complains about the rule that allows fast bowlers to hurl bouncers. At least, Rahul Dravid did not when he was felled by a nasty bouncer from Shahadat Hossain in Bangladesh.
Justice A P Shah played a good innings as a high court judge and as the Chief Justice of Delhi HC. Some former Chief Justices of India, who despite not having ever evaluated him as a judge or seen him from close quarters, also gave him good grades. Unlike Dravid, he retired recently and made it public that he was terribly hurt at not being elevated to the Supreme Court. He also complained about lack of transparency in the selection of judges to the top court.
The system, transparent or not, has always been there and Shah was chosen as a judge of the HC through that. Can anyone be seen complaining that there was a better choice available at the time Shah was appointed as a judge?
There are 16,609 trial court judges, who look forward to promotion as HC judges at some point in their career. But there are only 886 posts of HC judges. So, many of them retire as district judges without ever becoming an HC judge. Should all of them start questioning the selection process?
From among the 886 HC judges, only 26 used to be elevated to the Supreme Court, whose strength has now been increased to 31. An overwhelming majority of HC judges genuinely think they have the mettle to make it to the SC.
Most retire disappointed. Justice Shah will be surprised to know that since 2000, as many as 43 chief justices of 18 HCs have retired without being elevated to the apex court. But no one else aired a grievance in public against the system.
This is not to say that Justice Shah may not have a genuine grievance against his non-elevation to the SC. Let’s go by his suggestion that the system is non-transparent and hence, many a person gets eliminated. There is a sordid flip side, if all material considered by the collegium relating to appointment or elevation of a judge were to be made public.
The material could include unsubstantiated and wild allegations levelled against a judge. If they were to be made public, there could never be any elevation nor appointment to the HCs or to the SC. For, the collegium is yet to consider an appointment or elevation of a judge when it did not receive a letter containing complaints against the person concerned.
All of these proposed considerations for appointment or elevation concern either a district judge, a senior advocate or a HC judge or chief justice. What happens to his future, if such complaints are made public? Would he be able to lead a normal professional life, given the prevailing climate of suspicion where the shadow is always longer than the object?
Justice Shah should take a lesson or two from two great left-arm spinners — Rajinder Goel and Padmakar Shivalkar. While Goel had a first-class wicket tally of 640, Shivalkar had 589. Yet, both of them never played Tests for India. Their ability with the ball was eclipsed by the awesome spin quartet — Bedi, Prasanna, Chandrashekar and Venkatraghavan — that operated during those days. Both Goel and Shivalkar played for nearly 30 years in the domestic circuit and retired graciously.
Be it cricket or judiciary, not every selection can be explained nor can every rejection be logical. Celebrated US Supreme Court Judge, Oliver Wendell Holmes, Jr, once said, ‘‘The life of the law has not been logic; it has been experience.’’
High Court judgments
Karnataka: Quashing circulars issued by CJ
From the archives of The Times of India 2010
HC quashes three circulars issued by CJ Dinakaran
Karnataka HC has struck down three circulars issued by its Chief Justice P D Dinakaran against whom allegations of land-grabbing have been raised. The first circular that was quashed by a division bench, comprising Justice N Kumar and Justice Srinivasagowda yesterday, concerned the Chief Justice’s power to hear cases filed by employees of high court and judicial officers against his administrative decisions.
The second circular that was struck down related to the sitting Chief Justice’s jurisdiction in deciding which circuit bench should hear a particular case.
The judgement paves the way for litigants in north Karnataka to approach the principal bench directly, which they could not do earlier. According to the first circular, cases by court employees and judicial officers challenging the Chief Jutice’s orders were posted to hall one, where the CJ sits.
Allowing a petition filed by M S Poojari, a peon in the high court, the court said the circular cleared the way for CJ to be a judge in a case where he is also the litigant.
Calcutta: Judge changes mind, and order
The Times of India, June 8, 2016
Subrata Chattora Calcutta high court was witness to a wrangling match between two judges in the courtroom perhaps never seen since its inception in 1862.The spat was over a change made in the order delivered earlier in open court by one of the judges. The senior judge of the division bench even offered to resign after coming to know about the alteration, saying that making such changes without informing him was illegal. A division bench of justice Ashim Kumar Roy and C SKarnan had on May 20 turned down the bail petitions moved by IVRCL senior general manager Mallikarjun Rao and nine others accused in the Vivekananda Flyover collapse case. They have been in jail since April 1after being remanded by a lower court. Justice Karnan had a change of mind more than a fortnight after he had agreed with his senior, Justice Roy, in turning down the bail appli cation. According to Justice Roy , the other judge retired to his chamber on Monday afternoon without taking leave from his senior and made amends to the bail rejection order. While striking off his agreement, Justice Karnan took a contrary stance and held that all of the accused should be granted bail.
The senior judge lost his calm when he got to know about the change. On Tuesday , Justice Roy stopped in front of the judge's seat and asked Justice Karnan to sit first. “You take the seat first because you broke decorum yesterday by leaving the courtroom,“ Justice Roy said.
Justice Karnan was courteous and requested the senior to take seat. “Please take your seat first,“ he said. According HC sources, Justice Roy later called on Chief Justice Manjula Chellur and told her about the incident.
Judges' security
Meghalaya CJ, Laloo cases
The Times of India, Sep 06 2016
Dhananjay Mahapatra
Aam aadmi has no say in ex-judges' security, says SC
After evaluating the threat perception of former Meghalaya high court chief justice Umanath Singh, central security agencies found no perceptible security threat to him, who in his last days as CJ had suo motu ordered `Z' category cover for himself even after retirement. Three orders passed in December and January by an HC bench headed by Singh was challenged by a common man, Sajay Laloo, in the Supreme Court, which has openly expressed dislike towards common citizens questioning security for retired judges.
During the last hearing, an SC bench headed by Chief Justice of India T S Thakur had virtually stopped Laloo's counsel, senior advocate Vijay Hansaria, from arguing the matter. It had asked central agencies to evaluate the threat perception of the retired CJ and send the inputs to the Meghalaya government.
Central agencies told the state that incidents cited by the former CJ as cause for apprehension to his security were not serious, indicating that there was no need for `Z' category security cover. In between, Meghalaya's counsel Ranjan Mukherjee had requested the court for in-chamber hearing of the issue because of its sensitivity . This was stridently opposed by Hansaria.
Hansaria had barely started arguments that the bench headed by Thakur snapped at him and asked him to sit down. “This is a matter between the judiciary and the Meghalaya government. A common man has no say in this,“ the bench said.
Though slighted by the bench, an unfazed Hansaria questioned the bench's perception about a common man's locus standi in questioning unreasonable orders passed suo motu by an HC bench.
But the bench told him to “sit down“ and clarified it would hear only the Centre and Meghalaya. Hansaria walked out of the court saying, “If that is the case, then I would rather go out. Let the court decide what it wants.“
Additional solicitor general Maninder Singh told the court that central agencies had evaluated the security requirement of the ex-CJ and sent the inputs to the state.
The bench, which was initially inviting the counsel for a chamber hearing, chided the Meghalaya government for not challenging such orders and, thus, giving an opening to “interlopers“ to jump into the fray with PILs.
“Stand upfront and say these are wrong orders and challenge them in the Supreme Court. Because the state government did not challenge these orders, it has given fodder to the common man to challenge it in the SC,“ the bench said. Meghalaya's counsel assured the court that the state would challenge the orders within three weeks.
CJI and constitutional amendments: NJAC Act
Apr 28 2015
Can CJI decline to be part of a constitutional process?
Dhananjay Mahapatra
Can the Chief Justice of India refuse to participate in a process to make functional the new mechanism for judges' appointment mandated by a constitutional amendment and the NJAC Act, enacted by Parliament and ratified by 20 states? The Centre termed CJI H L Dattu's decision to abstain from selection of two eminent persons to make the sixmember NJAC functional as “unconstitutional“. Attorney general Mukul Rohatgi said the oath taken by the CJI prohibited him from abstaining from the meeting comprising himself, the PM and the leader of opposition. The Third Schedule of the Constitution provides the format for the CJI's oath, the relevant portion of which reads, “I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India... and that I will uphold the Constitution and the laws.“
With the AG declaring the situation a “constitutional stalemate“, a five-judge bench headed by Justice J S Khehar attempted to find a way out of it and sought views from senior advocates Fali S Nari man, K K Venugopal, K Parasaran and Harish Salve.
Venugopal and Parasaran said it was constitutionally impermissible for the CJI to decline participating in a process which was mandated by the Constitution. They said the provision, though under challenge, had not been stayed by the SC despite hearing it for days together.
House panel slams SC, HCs for monitoring CBI probes
The Times of India, Dec 09 2015
Neeraj Chauhan
House panel slams SC, HCs for monitoring CBI probes
Courts Are Overstepping Their Brief
In a significant remark on the judiciary's intervention in CBI investigations, a parliamentary committee has stated that the Supreme Court and high courts have started performing the functions of the lowest rung of criminal justice system, taking over the role of a magistrate. Asserting that superior courts are working beyond their powers, the parliamentary standing committee on personnel, public grievances, law and justice said, “The superior courts which are courts of appeal under Sec tion 374 of the Code of Criminal Procedure (1973) are even directing CBI in a number of cases to report day-to-day progress in a sealed cover bypassing sections 172 and 173 of the CrPC and performing functions envisaged under the criminal justice system of the country for the lowest rung of criminal courts and also appreciating the evidence which under section 173 of CrPC is required to be done by the magistrate.“
The panel's observations come at a time when most of the big-ticket CBI cases, including 2G spectrum allocation scam, coal block allocation scam, Vyapam scam, Virbhadra Singh corruption probe and ponzi schemes like Saradha, are being either monitored or regularly heard by the Supreme Court and several high courts. In fact, in the 2G and coal scams, the Supreme Court restricted all other courts to entertain any application against orders passed by the trial court.
The committee said, “...various high courts and Supreme Court are frequently issuing directions to the CBI to handle cases relating to Prevention of Corruption Act, 1988, as also of `public order'. As a result, the jurisdiction and powers of the CBI have widened and deepened and have far exceeded than what was contemplated under the Delhi Special Police Act, 1946.“
The committee, headed by E M Sudarsana Natchiappan, points to “judicial activism of higher judiciary by taking pains of overseeing an investigation and passing interim directions to the CBI and even preempting the rights and remedies available to affected persons under criminal justice system. It may , therefore, appear to affected persons as a pre-emptive and colourable exercise of power by the superior courts“.
