Chief Justice of India

OP. ED.SCC Journal Section Archives

With the demise of Justice Hidayatullah, modern India has lost one of its most luminous jurists. The word ‘jurist’ is much debased in India; we have developed a tradition where knowledge, virtue and even wisdom come ex officio, to a point that every judge, sitting or retired, every Attorney and Advocate General, other law officers, chairpersons of Bar Councils and Associations, law ministers, senior members of the Bar, and even their leading munshis, are described as ‘jurists’! In this context, Hidayatullah’s life was a constant message on how not to be a jurist.

But he was a jurist in the most complete sense of the term: he lived the life of law and justice. Unsurprisingly, he was an effortless exemplar of judicial virtues. Possessing an unsurpassed grasp of comparative jurisprudence, he wore his learning lightly. His disdain for purple judicial prose arose out of mastery of judicial style. He knew the inner logic of judicial craftspersonship; he addressed the future of law through the idiom of the present. In his later years, he maintained a tough allergy to the efflorescence of variety of judicial activism spawned by judicial populism. He was a friendly critic of judicial process and power and constantly warned his successors in the Supreme Court against the excesses of rhetoric; but the new converts to judicial activism could not allow a fine regard for legality to curb their new messianic notion of judicial role. Justice Hidayatullah, in contrast, believed that judicial power is most effective when it is sensible of its limits; and although not an arch-conservative, he gladly subscribed to the growth of judicial power, in Edmund Burke’s prescription, by “insensible degree”.

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Note: This article was first published in Supreme Court Cases Journal (1993) 1 SCC J-13. It has been reproduced with the kind permission of Eastern Book Company.

Know thy Judge

“Our ability to recognise others who are different is a sign of our own evolution. We miss the symbols of a compassionate and humane society only at our peril”.   

Justice Dr. D.Y. Chandrachud in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1  

Journey to becoming Supreme Court Judge

Justice Dr. Dhananjaya Yeshwant Chandrachud was born on 11-11-1959 to former Chief Justice of India, Justice Y.V. Chandrachud. He practiced law at the Bomaby High Court and Supreme Court of India. He was designated as Senior Advocate by the Bombay High Court in June 1998 and in the same year was appointed as the Additional Solicitor General of India. He appeared in several important cases involving Rights of Bonded Women Workers, Rights of HIV Positive Workers, Contract Labour and Rights of Religious and Linguistic Minorities.[1]

On 29th March 2000, Justice Chandrachud was appointed as Additional Judge of the Bombay High Court. On 31st October 2013, he took oath as the Chief Justice of the Allahabad High Court until he was appointed as a Judge of the Supreme Court on 13th May 2016.  [2]

♦Did you Know? Justice Chandrachud is likely to serve as the Chief Justice of India for a period of 2 years starting from November, 2022 to November, 2024. His father, Justice Y.V. Chandrachud, was the longest serving Chief Justice of India. [Read more about Justice Y.V. Chandrachud here]

Recent and Notable Judgments that Justice Dr. D.Y. Chandrachud has been a part of

The Secretary, Minister of Defence v. Babita Puniya, 2020 SCC OnLine SC 200

In this major verdict, the bench of Dr. D.Y. Chandrachud and Ajay Rastogi, JJ., ordered that the permanent commission will apply to all women officers in the Indian Army in service, irrespective of their years of service. Holding that the blanket non- consideration of women for criteria or command appointments absent an individuated justification by the Army cannot be sustained in law, the Court said that the Army has provided no justification in discharging its burden as to why women across the board should not be considered for any criteria or command appointments. Command assignments are not automatic for men SSC officers who are granted PC and would not be automatic for women either.

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Rajesh v. State of Haryana, 2020 SCC OnLine SC 900

The 3-judge bench of Dr. DY Chandrachud, Indu Malhotra and Indira Banerjee, JJ., summarised the principles relating to conduct of a Test Identification Parade (TIP) and held that

“… the identification in the course of a TIP is intended to lend assurance to the identity of the accused. The finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade.”

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K.S. Puttaswamy v. Union of India (Privacy- 9 Judge), (2017) 10 SCC 1

Justice Chandrachud was part of the 9 Judge Bench which unanimously held that, Right to Privacy is a basic fundamental right. The Bench, which also comprised of J.S. Khehar, CJ. and J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, S.K. Kaul and S.A. Nazeer, JJ., observed that Right to Privacy forms an intrinsic part of Art. 21 and freedoms guaranteed in Pt. III. It permeates core of Preambular philosophy underlying “liberty” and “dignity” as also human concepts of “life” and “personal liberty” enshrined in Art. 21 and wide ranging freedoms guaranteed under Pt. III, considered essential for a meaningful human existence. Dr. Chandrachud, J., writing for himself and on behalf of J.S. Khehar, CJ, R.K. Agrawal and S.A. Nazeer, JJ, said that Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. He added,

“While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being”.

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♦Did you Know? The Privacy case also marked a unique moment in judicial history of India; as Justice Chandrachud overruled the ADM Jabalpur decision in which his father, Late Justice Y.V. Chandrachud was part of the majority. Terming the judgments rendered by the majority as “seriously flawed”, Dr. D.Y. Chandrachud, J., observed that-

“H.R. Khanna, J. was clearly right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the State on whose mercy these rights would depend”.

Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

In this landmark 5 -Judge Bench decision which became instrumental in upholding the rights of the LGBT community, Dipak Misra, CJ., and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., held Section 377 IPC to be unconstitutional insofar it criminalised gay sex between consenting adults. The Bench reversed the 2-Judge Bench decision in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.

In his concurring opinion, Dr. D.Y. Chandrachud, J., while stating that, “It is difficult to right the wrongs of history. But we can certainly set the course for the Future”, held that lesbians, gays, bisexuals and transgenders have a constitutional right to equal citizenship in all its manifestations. Sexual orientation is recognised and protected by the Constitution.

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Joseph Shine v. Union of India, (2019) 3 SCC 39

The 5-Judge Constitution Bench held Section 497 IPC and Section 198 (2) CrPC to be unconstitutional and violative of Articles 14, 15 (1) and 21 of the Constitution. Dipak Misra, C.J., delivered the leading judgment for himself and A.M. Khanwilkar, J. While R.F. Nariman, Dr D.Y. Chandrachud and Indu Malhotra, JJ., each delivered their separate concurring opinions. Referring to several foreign courts’ judgments and opinions of celebrated authors, Dr. Chandrachud, J. observed that,

“If the ostensible object of the law is to protect the ‘institution of marriage’, it provides no justification for not recognising the agency of a woman whose spouse is engaged in a sexual relationship outside of marriage. She can neither complain nor is the fact that she is in a marital relationship with a man of any significance to the ingredients of the offence. Section 497 is founded on the notion that a woman by entering upon marriage loses, so to speak, her voice, autonomy and agency. Arbitrariness is writ large on the provision”.

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Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1

Stating that re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes, the 7 Judge Bench held that the Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority Justice Chandrachud writing down the majority judgment for himself and S.A. Bobde, A.K. Goel, U.U. Lalit and L. Nageswara Rao, JJ., laid down the principles for promulgation of ordinances.

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Common Cause v. Union of India, (2018) 5 SCC 1

The 5-judge Constitution Bench of Dipak Misra, CJ., and AK Sikri, AM Khanwilkar, Dr. D.Y. Chandrachud and Ashok Bhushan, JJ., held that the right to die with dignity is a fundamental right as held in Gian Kaur v. State of Punjab, (1996) 2 SCC 648 and that ‘passive euthanasia’, both, voluntary and involuntary, is permissible. In his concurring opinion, Dr. Chandrachud, J., observed that,

“While upholding the legality of passive euthanasia (voluntary and non-voluntary) and in recognising the importance of advance directives, the present judgment draws sustenance from the constitutional values of liberty, dignity, autonomy and privacy. In order to lend assurance to a decision taken by the treating doctor in good faith, this judgment has mandated the setting up of committees to exercise a supervisory role and function”.

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 Shafin Jahan v. Asokan K.M, (2018) 16 SCC 368

The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. D.Y. Chandrachud, JJ., terming the instant case to be perfect example of, “patriarchal autocracy and possibly self-obsession with the feeling that a female is a chattel”, set aside the verdict of Kerala High Court wherein it had annulled the marriage between two consenting adults, namely, Hadiya and Shafin Jahan. Noting that the Kerala HC erred in its decision, Dr. D.Y. Chandrachud, J., in his concurring opinion, came down heavily upon the Kerala HC, stating that,

“The schism between Hadiya and her father may be unfortunate. But it was no part of the jurisdiction of the High Court to decide what it considered to be a “just” way of life or “correct” course of living for Hadiya. She has absolute autonomy over her person. There was no warrant for the High Court to proceed further in the exercise of its jurisdiction under Article 226. The High Court has entered into a domain which is alien to its jurisdiction in a habeas corpus petition. How Hadiya chooses to lead her life is entirely a matter of her choice”.

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Notable Dissents

K.S. Puttaswamy v. Union of India (Aadhaar-5 Judge), (2019) 1 SCC 1

The 5- Judge Bench comprising of CJ Dipak Misra and A.K. Sikri, A.M. Khanwilkar, Dr. D.Y. Chandrachud and Ashok Bhushan, JJ., by a majority of 4:1, upheld the constitutional validity of Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016. Justice Chandrachud gave a 23-point conclusion to the opinion wherein he dissented from the majority. In his opinion, the entire Aadhaar programme, since 2009, suffers from the constitutional infirmities and violations of fundamental rights-

“Creating strong privacy protection laws and instilling safeguards may address or at the very least assuage some of the concerns associated with the Aadhar scheme which severely impairs informational self-determination, individual privacy, dignity and autonomy”.

In a sharp criticism on passing of the Aaadhar Act as Money Bill within the meaning of Art.110 of the Constitution, Dr. Chandrachud, J., observed that-

“There is a constitutional trust which attaches to the empowerment of the Speaker of the Lok Sabha to decide whether a legislative measure is a Money Bill. Entrustment of the authority to decide is founded on the expectation that the Speaker of the Lok Sabha will not dilute the existence of a coordinate institution in a bicameral legislature. A constitutional trust has been vested in the office of the Speaker of the Lok Sabha. By declaring an ordinary Bill to be a Money Bill, the Speaker limits the role of the Rajya Sabha. This power cannot be unbridled or bereft of judicial scrutiny”. 

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Jindal Stainless Ltd v. State of Haryana, (2017) 12 SCC 1

The 9-judge bench, by a ratio of 7:2, upheld the validity of the entry tax imposed by the States on goods imported from other States. It was held that taxes simpliciter are not within the contemplation of Part XIII of the Constitution of India and that the word ‘Free’ used in Article 301 does not mean “free from taxation”. Delivering a dissenting opinion Dr. D.Y. Chandrachud, J., observed that,

“In order to determine whether a law providing for the imposition of a tax constitutes a restriction on the freedom of trade, commerce and intercourse, the principle that must be applied is whether the direct and inevitable effect or consequence of the law is to impede trade and commerce. The direct and inevitable consequence for the purposes of Part XIII of the Constitution is not the same as an infringement of the fundamental right to carry on an occupation, trade or business under Article 19(1)(g)”. He further observed that, “Article 301 sub-serves the constitutional goal of integrating the nation into an economic entity comprising of a common market for goods and services”.

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Abhiram Singh v. C.D. Commachen, (2017) 2 SCC 629 

In a 4:3 verdict, the 7-Judge Bench held that an appeal in the name of religion, race, caste, community or language is impermissible under the Representation of the People Act, 1951 and would constitute a corrupt practice sufficient to annul the election in which such an appeal was made regardless whether the appeal was in the name of the candidate’s religion or the religion of the election agent or that of the opponent or that of the voters’. Writing the dissenting opinion for himself and Adarsh K. Goel and U.U. Lalit, JJ.; Dr. D.Y. Chandrachud, J., observed that ‘his’ as in Section 123(3) of RP Act does not refer to the religion, race, caste, community or language of the voter. Dr. Chandrachud, J., made a very significant observation in his dissent-

“Our Constitution recognises the broad diversity of India and, as a political document, seeks to foster a sense of inclusion. It seeks to wield a nation where its citizens practise different religions, speak varieties of languages, belong to various castes and are of different communities into the concept of one nationhood. The Indian State has no religion nor does the Constitution recognise any religion as a religion of the State. India is not a theocratic State but a secular nation in which there is a respect for and acceptance of the equality between religions”.

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Romila Thapar v. Union of India, (2018) 10 SCC 753 

In the instant case wherein 5 human rights activists were charged and arrested under the provisions of Unlawful Activities (Prevention) Act, 1967 and the 3 Judge Bench of the Court with a ratio of 2:1 (Dipak Misra CJ., and A.M. Khanwilkar, J.) rejected their prayer seeking appointment of SIT and court-monitored investigation; Justice D.Y. Chandrachud dissented with the majority. He observed that, “Dissent is a symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes”. Taking the view that a Special Investigating Team should be appointed to pursue the matter, Dr. Chandrachud, J., stated that,

“The purpose of the direction which I propose to give is to ensure that the basic entitlement of every citizen who is faced with allegations of criminal wrongdoing, is that the investigative process should be fair. This is an integral component of the guarantee against arbitrariness under Article 14 and of the right to life and personal liberty under Article 21. If this Court were not to stand by the principles which we have formulated, we may witness a soulful requiem to liberty”.

*Editorial Assistant, EBC Publishing Pvt. Ltd. 

[1] Bombay High Court, Hon’ble Former Justices

[2] Supreme Court of India, Chief Justices and Judges

More Know Thy Judge stories here

Hot Off The PressNews

As reported by PTI, Ravi Shankar Prasad, Law Minister urges the Chief Justice of India and other Senior Judges to ensure a mechanism to monitor quick disposal of rape cases and further adding that women of the country are under pain and distress.

Law Minister stated that there are 704 fast-track courts for heinous offences and others and the government is in the process of setting up 1,123 dedicated courts for POCSO and rape offences.

He also said India’s judiciary, be it the Supreme Court, high courts or subordinate courts, has upheld the principles of the rule of law. But, he stressed, the need to attract more talent in the subordinate judiciary.

All of the above was stated by the Minister during the inauguration of the new building of Rajsthan High Court.

[Source: PTI]

[Image Credits: Hindustan Times]

Appointments & TransfersNews

Justice Sharad Arvind Bobde sworn-in as the 47th Chief Justice of India today, i.e. 18-11-2019.

As reported by ANI, Prime Minister Narendra Modi and Home Minister Amit Shah were also present for the ceremony at the Rashtrapati Bhavan.

Profile

Born on 24.04.1956 at Nagpur, Maharashtra, son of Shri Arvind Shriniwas Bobde. Took B.A. and LL.B. Degrees from Nagpur University.  Enrolled on the Roll of the Bar Council of Maharashtra in 1978.  Practiced Law at the Nagpur Bench of the Bombay High Court with appearances at Bombay before the Principal Seat and before the Hon’ble Supreme Court of India for over 21 years.  Designated as Senior Advocate in 1998.

  • Elevated to the Bench of the Bombay High Court on 29th March, 2000, as Additional Judge.
  • Sworn in as Chief Justice of Madhya Pradesh High Court on 16th October, 2012.
  • Elevated as a Judge of the Supreme Court of India on 12th April, 2013.
  • Due to retire on 23rd April, 2021

Justices NV Ramana, UU Lalit and DY Chandrachud are next in line.

Know thy Judge

Justice Sharad Arvind Bobde will be taking oath as the 47th Chief Justice of India today, succeeding Justice Ranjan Gogoi, who served as the Chief Justice of India for over an year i.e. from October, 3, 2018 till November 17, 2019.

In a recent interview to Indian Express, Justice Bobde was seen reflecting on why he chose to become a judge after being a successful lawyer. He said,

“I made this conscious decision to be a judge because I am a fourth generation lawyer and I have only seen lawyers in my life. I was the only black sheep who moved towards the judiciary in that sense, and I took a conscious decision as I found being at the Bar repetitive in its rewards. I felt I should answer the call.”

Here’s all you need to know about the incoming CJI

  • He was born in Nagpur on April 24, 1956.
  • He completed his law from Dr. Ambekar Law College, Nagpur University in 1978 after which he practiced at the Nagpur Bench of Bombay High Court with appearances before the principal seat at Bombay and before the Supreme Court of India. He became senior Advocate in 1998.
  • He was appointed as an additional judge of Bombay High Court in 2000. He became the Chief Justice of Madhya Pradesh High Court in October, 2012 and was elevated as a judge of the Supreme Court of India on 12 April 2013.
  • His father Arvind Bobde was advocate-general of Maharashtra in 1980 and 1985.
  • His elder brother late Vinod Arvind Bobde was a senior Supreme Court lawyer who passed away on 11th June, 2016.

Interestingly, though Justice Bobde has been a part of many important judgments, he has never been a part of the minority opinions. He also has authored very few judgments compared to his predecessors. This fact, however, cannot be indicative of Justice Bobde’s contribution to the judicial system as he has been a part some of path-breaking judgments.

Here’s a list of some of the notable judgments by Justice SA Bobde

Hot Off The PressNews

Supreme Court: A Supreme Court-appointed one-man panel, holding inquiry into allegations of “larger conspiracy” to frame Chief Justice of India Ranjan Gogoi, has completed the inquiry and is likely to submit the report by mid September.

Sources said Tuesday that Justice A K Patnaik, a retired Supreme Court judge who was appointed by the Supreme Court, examined advocate Utsav Singh Bains, who had made several allegations including fixing of benches in the Supreme Court.

“The affidavit filed by Bains and other documents were examined by the panel. Now, the panel will complete the report and submit it to the Supreme Court in a sealed cover by second week of September,”

Justice Patnaik examined the lawyer from 11 am to 1 pm and his statement was recorded.

The Court had on April 25 constituted the panel to hold inquiry into the allegations of Bains and had asked the Directors of CBI and Intelligence Bureau (IB) as also the Delhi Police Commissioner to cooperate with Justice Patnaik as and when required by him.

A special 3-judge bench of Arun Mishra, Rohinton Nariman and Deepak Gupta, JJ  had said that on the completion of inquiry, Justice Patnaik will file a report in a sealed cover before the court after which the matter will be heard again.

The bench, however, clarified that the outcome of the inquiry shall not affect the in-house procedure/inquiry which is pending in the administrative side in any manner whatsoever. It said,

“this inquiry shall not be with respect to the alleged misbehaviour involving Hon’ble The Chief Justice of India. This is with respect to the contents of the affidavits, whether the affidavits are correct or not.”

On May 6, CJI had got the clean chit from the Supreme Court’s In-House Inquiry Committee which “found no substance” in the allegations of sexual harassment levelled against him. The In-House Inquiry Committee was headed by Justice S A Bobde and comprised of two woman judges of the apex court — Justices Indu Malhotra and Indira Banerjee.

While hearing claims made by Bains that there was a “larger conspiracy” to frame the CJI, the Court had said that there is systematic attempt/game against the Supreme Court. It said,

“We are in anguish the way this institution is being treated for the last 3-4 years is as if this institution will die. This is the court made by the likes of Fali Nariman, Nani Palkhiwala, K Parasaran. … Every day we hear about bench-fixing, every day we hear of wrong practices in this court. This has to go. The day has come when we have to rise to the occasion and tell the rich and powerful that they cannot run the Supreme Court. … Don’t provoke us anymore. We want to tell the rich and the powerful that they are playing with fire. This is not the way a country can run,”

(With inputs from PTI)

Also Read: 

Sexual Harassment allegations against CJI: 2-judge bench to hear the matter after CJI opts out mid-way

Sexual Harassment allegations against CJI: Order on advocate’s claims of conspiracy to frame CJI Gogoi reserved

Sexual Harassment allegations against CJI: Justice AK Patnaik to look into ‘conspiracy’ angle

Case BriefsSupreme Court

Supreme Court: A special 3-judge bench of Arun Mishra, Rohinton Nariman and Deepak Gupta, JJ has appointed former Supreme Court judge, Justice A. K. Patnaik, to hold an inquiry into the allegations made in the affidavits.to probe an advocate’s claim that there was a “conspiracy” to frame Chief Justice Ranjan Gogoi in a sexual harassment case.

The bench, however, clarified that the outcome of the inquiry shall not affect the in-house procedure/inquiry which is pending in the administrative side in any manner whatsoever. It said,

“this inquiry shall not be with respect to the alleged misbehaviour involving Hon’ble The Chief Justice of India. This is with respect to the contents of the affidavits, whether the affidavits are correct or not.”

The Court also asked the Director of Central Bureau of Investigation (CBI), the Director of Intelligence Bureau (IB) and the Commissioner of Police, Delhi, to cooperate with the Hon’ble Judge as and when their services are required at any point of time for the purpose of investigation of the matter.

Asking Justice Patnaik to submit a report to this Court on the basis of the inquiry as to the allegations mentioned in the affidavits, the bench said that it will next take up the matter after the report is submitted.

On 24.04.2019, Advocate Bains had submitted an affidavit in Court in a sealed cover. The bench had directed that,

“It is to be kept in a sealed cover in total confidentiality, as it contains highly sensitive information pertaining to the alleged conspiracy, according to him, to frame Hon’ble The Chief Justice of India into a case of sexual harassment.”

Naming Tapan Kumar Chakraborty and Manav Sharma and others in his affidavit, Advocate Bains had mentioned that,

“the disgruntled employees have ganged together in order to frame Hon’ble The Chief Justice of India in the false charge of sexual harassment after their dismissal from their services.”

He has also alleged that they have asserted that they could fix the Bench of the Judges.

The Court had, on 24.04.2019, said,

“Considering the seriousness of the allegations as the system has absolutely no place for such fixers, we cannot leave the matter at that. It becomes our responsibility to keep this Institution clean as well as to ensure that the image of this Institution is not tarnished by such allegations to undertake the probe in the matter.”

[In Re : Matter of great public importance touching upon the Independence of Judiciary, 2019 SCC OnLine SC 604, order dated 25.04.2019]

Also read:

Sexual Harassment allegations against CJI: Order on advocate’s claims of conspiracy to frame CJI Gogoi reserved

Sexual Harassment allegations against CJI: Advocate claiming ‘conspiracy’ to appear before SC tomorrow

Sexual Harassment allegations against CJI: 2-judge bench to hear the matter after CJI opts out mid-way

Hot Off The PressNews

Supreme Court: A special 3-judge bench of Arun Mishra, Rohinton Nariman and Deepak Gupta, JJ has reserved its order on the issue of setting up an inquiry committee to probe an advocate’s claim that there was a “conspiracy” to frame Chief Justice Ranjan Gogoi in a sexual harassment case. The bench will pronounce its order later in the day.

During the course of the hearing, advocate Utsav Bains, who made the claim about a conspiracy to frame Justice Gogoi, submitted an additional affidavit on the direction of the court. In his affidavit, Bains submitted that he cannot share the names of the “fixers” as “privileged communication under the Advocates Act” cannot be disclosed.

Attorney General KK Venugopal said the claim of privilege under Section 126 of the Evidence Act is not applicable to any communication between Bains and the alleged fixers. He said that a court can ask for any document relevant to a case.
Supporting the Attorney General’s argument, Supreme Court Bar Association (SCBA) president Rakesh Khanna submitted that there is “no sacrosanct right” to withhold any document. He said that the court has the power to seek production of documents over which privilege
is claimed.

“Whatever he (Bains) divulged to us, in any case, our power to inspect the documents is there,”

Mishra, J said,

“There is systematic attempt/game, so many things have not come out. The truth has not come out. These things are in the air for a long time and people of the country must know the truth. There has been a systemic attack against the Supreme Court,”

“We are in anguish the way this institution is being treated for the last 3-4 years is as if this institution will die. This is the court made by the likes of Fali Nariman, Nani Palkhiwala, K Parasaran. … Every day we hear about bench-fixing, every day we hear of wrong practices in this court. This has to go. The day has come when we have to rise to the occasion and tell the rich and powerful that they cannot run the Supreme Court. … Don’t provoke us anymore. We want to tell the rich and the powerful that they are playing with fire. This is not the way a country can run,”

Senior advocate Indira Jaising told the court that the inquiry headed by Justice S A Bobde into the sexual harassment charge and the case before the court should be conducted together.

Mishra, J, however, clarified that that the outcome of this inquiry into the conspiracy charge will not affect that inquiry into the sexual harassment charge. He remarked,

“Three to five per cent lawyers are giving a bad name to this institution. Don’t provoke us any further, we are worried as judges. We will see
how it can be an independent inquiry.”

On Tuesday, a three-member committee of the court led by Justice Bobde, the senior-most judge after the Chief Justice, was formed to look into the allegation of sexual harassment made by a dismissed employee against Justice Gogoi. The other two members of the committee are Justices NV Ramana and Indira Banerjee. Justice Ramana is the third in the seniority list in the Supreme court and will the Chief Justice after the retirement of Justice Bobde.

(Source: ANI)

Also read:

Sexual Harassment allegations against CJI: Advocate claiming ‘conspiracy’ to appear before SC tomorrow

Sexual Harassment allegations against CJI: 2-judge bench to hear the matter after CJI opts out mid-way

Hot Off The PressNews

Supreme Court: A 3-judge bench of Arun Mishra, RF Nariman and Deepak Gupta, JJ has sought response from advocate Utsav Bains, who claimed that there is a conspiracy to frame up the Chief Justice Ranjan Gogoi in a sexual harassment case. The Court has posted the matter for hearing tomorrow and has sought Utsav Bains’s presence before it.

The bench was hearing a case relating to the sexual harassment allegations against CJI Gogoi. The charges have been leveled by a dismissed
woman employee of the Supreme Court.

Advocate Utsav Bains on Monday filed an affidavit saying there was a larger ‘conspiracy’ playing out to compel the CJI to resign. He claimed that when he refused to take up the case on finding several loopholes in her story, the person offered him Rs 50 lakh, which was raised to Rs 1.50 crore. Bains further claimed that on inquiry, he found that “certain fixers”, who claim to be engaged in illegally managing judgments in exchange for cash, were behind the plot as the Chief Justice had taken decisive action to crack down on such fixers.

“The said fixer Romesh Sharma was running a ‘cash for judgment’ racket in cahoots with businessmen and politicians and had exercised considerable influence for years, which ultimately was brought to an end by the present CJI, as he took decisive action against them after becoming CJI.”

He further claimed,

“There was a conspiracy against the Chief Justice of India to force him to resign and thereby threaten every judge with dire consequences for being free and fearless in dispensing justice while pronouncing judgments against the rich and powerful in the country.”

On Saturday, a Special bench met for a sitting to discuss online media reports of sexual harassment allegations against CJI Ranjan Gogoi. The bench said,

“The independence of the judiciary is under very serious threat and there is a larger conspiracy to destabilise the judiciary,”

The hurriedly constituted 3-judge special bench headed by CJI Ranjan Gogoi, in the case related to allegations of sexual harassment against the CJI, was reduced to a 2-judge bench when CJI left it to justices Arun Mishra and Sanjiv Khanna to take a call on the issue of passing judicial order.

As the hearing progressed, the CJI opted out midway from passing any judicial order and said,

“I am not going to be a part of the judicial order. Justice Arun Mishra is the senior most judge available in Delhi and he will dictate the order,”

The bench, however, did not pass any judicial order and left it to the wisdom of the media to decide on the publication of reports in order to protect the independence of the judiciary.

(Source: ANI)

Hot Off The PressNews

Supreme Court: A hurriedly constituted 3-judge special bench headed by CJI Ranjan Gogoi, in the case related to allegations of sexual harassment against the CJI, was reduced to a 2-judge bench when CJI left it to justices Arun Mishra and Sanjiv Khanna to take a call on the issue of passing judicial order.

As the hearing progressed, the CJI opted out midway from passing any judicial order and said,

“I am not going to be a part of the judicial order. Justice Arun Mishra is the senior most judge available in Delhi and he will dictate the order,”

The notice issued by the Supreme Court registry, that became public around 10:15 AM said,

“Take note that a special bench consisting of the Chief Justice of India, Justices Arun Mishra and Sanjiv Khanna is being constituted to have a special sitting at 10:30 AM. Today, i.e. the 20th April, 2019 in the Chief Justice’s Court to deal with a matter of great public importance touching upon the independence of judiciary, on a mention being made by Tushar Mehta, Solicitor General.”

When contacted, Supreme Court Secretary General Sanjeev Sudhakar Kalgaonkar said the story come out in several news portals Saturday morning around 8-9 AM and they came to know about it at around 9-9:30 AM. He said the matter was mentioned before the CJI by Solicitor General Tushar Mehta and the court took it up.

On the query that the CJI’s name is not reflected in the order uploaded on the Supreme court website, Kalgaonkar said the CJI mentioned in the court whatever his lordship wanted to say and, thereafter it was taken over by the other two judges on the judicial side.

He also made it clear that the CJI is the “master of roster” and “whatever bench the lordship will constitute, the said bench will hear the matter” and it will listed for further hearing in due course.

(Source: PTI)

Hot Off The PressNews

In an unprecedented move, the 4 senior most judges of the Supreme Court felt the need to address the nation in an effort to preserve not only the sanctity of the judicial institution but also the democracy. Justice J. Chelameswar, along with Justice Ranjan Gogoi, Justice Madan B. Lokur and Justice Kurian Jospeh, held a press conference at his residence to put an end to the speculations making rounds over the differences between the judges and the Chief Justice of India, Justice Dipak Misra, over the assignment of cases.

At the end of the address, the judges released a letter that they had written, addressed to the Chief Justice of India. Below is the text of the letter:

“Dear Chief Justice,

It is with great anguish and concern that we have thought it proper to address this letter to you no as to highlight certain judicial orders passed by this Court which has adversely affected the overall functioning of the justice delivery system and the independence of the High Courts besides impacting the administrative functioning of the Office of the Hon’ble the Chief Justice of India.

From the date of establishment of the three chartered High Courts of Calcutta, Bombay and Madras, certain traditions and conventions in the judicial administration have been well established. The traditions were embraced by this Court which came into existence almost a century after the above mentioned chartered High Courts. These traditions have their roots in the anglo saxon jurisprudence and practice.

One of the well settled principles is that the Chief Justice is the master of the roster with a privilege to determine the roster, necessity in multi numbered courts for an orderly transaction of business and appropriate arrangements with respect to matters with which member/bench of this Court (as the case may be) is required to deal with which case or class of cases is to be made. The convention of recognizing the privilege of the Chief Justice to form the roster and assign cases to different members/benches of the Court is a convention devised for a disciplined and efficient transaction of business of the Court but not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues.

It is too well settled in the jurisprudence of this country that the Chief Justice is only the first amongst the equals – nothing more or nothing less.

In the matter of the determination of the roster there are well-settled and time honoured conventions guiding the Chief Justice, be the conventions dealing with the strength of the bench which is required to deal with a particular case or the composition thereof.

A necessary corollary to the above mentioned principle is the members of any multi numbered judicial body including this Court would not arrogate to themselves the authority to deal with and pronounce upon matters which ought to be heard by appropriate benches, both composition wise and strength wise with due regard to the roster fixed.

Any departure from the above two rules would not only lead to unpleasant and undesirable consequences of creating doubt in the body politic about the integrity of the institution. Not to talk about the chaos that would result from such departure.

We are sorry to say that off late the twin rules mentioned above have not been strictly adhered to. There have been instances where case having far-reaching consequences for the Nation and the institution had been assigned by the Chief Justices of this Court selectively to the benches “of their preference” without any rationale basis for such assignment. This must be guarded against at all costs.

We are not mentioning details only to avoid embarrassing the institution but note that such departures have already damaged the image of this institution to some extent.

In the above context, we deem m it proper to address you presently with regard to the Order dated 27th October, 2017 in R.P. Luthra vs. Union of India to the effect that there should be no further delay in finalizing the Memorandum of Procedure in the larger public interest. When the Memorandum of Procedure was the subject matter of a decision of a Constitution Bench of this Court in Supreme Court Advocates-on-Record Association and Anr. vs. Union of India [(2016) 5 SCC 1] it is difficult to understand as to how any other Bench could have dealt with the matter.

The above apart, subsequent to the decision of the Constitution Bench, detailed discussions were held by the Collegium of five judges (including yourself) and the Memorandum of Procedure was finalized and sent by the then Hon’ble the Chief Justice of India to the Government of India in March 2017.

The Government of India has not responded to the communication and in view of this silence, it must be taken that the Memorandum of Procedure as finalized by the Collegium has been accepted by the Government of India on the basis of the order of this Court in Supreme Court Advocates-on-Record Association (Supra). There was, therefore, no occasion for the Bench to make any observation with regard to the finalization of the Memorandum of Procedure or that that issue cannot linger on for an indefinite period.

On 4 July, 2017, a Bench of seven Judges of this Court decided In Re, Hon’ble Shri Justice C.S. Karnan [(2017) 1 SCC 1]. In that decision (referred to in P.P. Luthra), two of us observed that there is a need to revisit the process of appointment of judges and to set up a mechanism for corrective measures other than impeachment. No observation was made by any of the seven learned judges with regard to the Memorandum of Procedure.

Any issue with regard to the Memorandum of Procedure should be discussed in the Chief Justices’ Conference and by the Full Court. Such a matter of grave importance, if at all required to be taken on the judicial side, should be dealt with by none other than a Constitution Bench.

The above development must be viewed with serious concern. The Hon’ble Chief Justice of India is duty bound to rectify the situation and take appropriate remedial measures after a full discussion with the other members of the Collegium and at a later stage, if required, with other Hon’ble Judges of this Court.

Once the issue arising from the order dated 27th October, 2017 in R.P. Luthra vs. Union of India, mentioned above, is adequately addressed by you and if it becomes so necessary, we will apprise you specifically of the other judicial orders passed by this court which would require to be similarly dealt with.

With kind regards,

J. J. Chelameswar

J. Ranjan Gogoi

J. Madan B. Lokur

J. Kurian Joseph”

To read the details of the press conference, click here.

Hot Off The PressNews

In a first, the senior most judge of the Supreme Court of India, Justice J. Chelameswar, along with Justice Ranjan Gogoi, Justice Madan B. Lokur and Justice Kurian Jospeh, held a press conference at his residence to put an end to the speculations making rounds over the differences between the judges and the Chief Justice of India, Justice Dipak Misra, over the assignment of cases.

Addressing the nation through the press conference, Justice Chelameswar said:

“With no pleasure we are compelled take the decision to call a press conference. The administration of the Supreme Court is not in order & many things which are less than desirable have happened in last few months.”

He further added that being the senior most judges of the institution of judiciary, they owed a responsibility to the institution and to the nation and hence, they tried to persuade the CJI to remedy and measures but since none of their efforts worked, they had to call for a press conference.

He said:

“We met CJI with a specific request which unfortunately couldn’t convince him that we were right therefore, we were left with no choice except to communicate it to the nation that please take care of the institution.”

Stating that it was important for the nation to know what is what, Justice Chelameswar said:

‘All four of us are convinced that unless this institution is preserved and it maintains its equanimity, democracy will survive in this country, or any country.”

The judges also provided a copy of the letter that they had written to the CJI. On the principle of Chief Justice being the ‘master of the roster’, the letter states:

“The convention of recognizing the privilege of the Chief Justice to form the roster and assign cases to different members/benches of the Court is a convention devised for a disciplined and efficient transaction of the business of the Court but not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues.”

Though the judges did not mention the details in the letter, they said that they did so in order to avoid embarrassing the institution but note that such departures have already damaged the image of this intuition to some extent. The judges, through the letter, told the CJI:

“There have been instances where case having far-reaching consequences for nation & the institution had been assigned by Chief Justice of this court selectively to benches ‘of their preference’ without rationale basis. This must be guarded against at all costs.”

It is important to note that earlier, the Court number 1 of the Supreme Court witnessed a high voltage drama when a 7-judge bench headed by the Chief Justice of India, Justice Dipak Misra, assembled for reviewing the 2-judge bench order calling for constitution of a Constitution Bench of the first five judges of the Supreme Court to hear the matter wherein it was alleged that attempts were made to bribe some Supreme Court Judges in the matters relating to Medical admission scam. The bench of J Chelameswar and S. Abdul Nazeer, JJ had given the said order on 09.11.2017 .

The four judges are the senior most judges of the Supreme Court of India after the CJI. While Justice Chelameswar, Justice Lokur and Justice Jospeh are set to retire this year, Justice Ranjan Gogoi is next in line to be the Chief Justice of India after CJI Justice Dipak Misra retires on 02.10.2018.

Case BriefsSupreme Court

Supreme Court: Dismissing the petition filed by advocate Kamini Jaiswal wherin it was alleged that that attempts were made to bribe some Supreme Court Judges in the matters relating to Medical admission scam, the 3-judge bench of RK Agrawal, Arun Mishra and AM Khanwilkar, JJ held that there was no question of registering any FIR against any sitting Judge of the High Court or of this Court as it is not permissible as per the law laid down by a 5-judge Constitution Bench in K. Veeraswami v. Union of India, (1991) 3 SCC 655 ,wherein this Court observed that in order to ensure the independence of the judiciary the apprehension that the Executive being largest litigant, it is likely to misuse the power to prosecute the Judges.

Noticing that the FIR mentioned by the petitioner did not reflect the names of any of the Supreme Court judges, the bench said:

“The entire judicial system has been unnecessarily brought into disrepute for no good cause whatsoever. It passes comprehension how it was, that the petitioner presumed, that there is an FIR lodged against any public functionary.”

It was held that there cannot be registration of any FIR against a High Court Judge or Chief Justice of the High Court or the Supreme Court Judge without the consultation of the Hon’ble Chief Justice of India and, in case there is an allegation against Hon’ble Chief Justice of India, the decision has to be taken by the Hon’ble President, in accordance with the procedure prescribed in the said decision.

Upon the contention that a judicial order cannot be violated, and it could not have been rendered ineffective by the Constitution Bench decision of this Court dated 10.11.2017 and that by doing so the Chief Justice was being a judge in his own case, the bench relied upon the 3-judge bench decision in Dr. D C Saxena v. Chief Justice of India, (1996) 5 SCC 216, where it was held:

it was the duty of the Chief Justice to assign judicial work to brother Judges. By doing so, he did not become a Judge in his own cause. It is contempt to imply that the Chief Justice would assign it to a Bench which would not pass an order adverse to him.”

Regarding the contention that A.M. Khanwilkar, J. should have recused himself from the bench as he was a member of the Bench which disposed of the matter of Prasad Education Trust vide order dated 18.9.2017, the Court said that it was nothing but another attempt of forum hunting which cannot be permitted. The bench said:

“it is the duty of the Bench to take up such matter firmly; such unscrupulous allegations and insinuations cannot be allowed to be hurled by oral prayer made on behalf of the petitioner for recusal.”

To conclude, the bench said:

“Though it is true, that none of us is above law; no person in the higher echelons is above the law but, at the same time, it is the duty of both the Bar and the Bench, to protect the dignity of the entire judicial system.”

Coming down heavily upon the petitioner, who after arguing at length, at the end, submitted that she was not aiming at any individual, the Court said:

“If that was not so, unfounded allegations ought not to have been made against the system and that too against the Hon’ble Chief Justice of this country.”

Upon the question of unprecedented situation being created on 10.11.2017, the bench said:

“As Hon’ble Chief Justice of India had to assign it to a Bench, situation of dilemma was created for Hon’ble Chief Justice of India whether to assign the matter of CJAR to an appropriate Bench or to go by the judicial order by constituting a Bench of 5 senior Judges on 13.11.2017.”

The Court said that it deprecated the practice of forum hunting and that it cannot fall prey to such unscrupulous devices adopted by the litigants, so as to choose the Benches, as that is a real threat to very existence of the system itself and it would be denigrated in case we succumb to such pressure tactics. [Kamini Jaiswal v. Union of India, 2017 SCC OnLine SC 1322, decided on 14.11.2017]

Know thy Judge

Ministry of Law and Justice has finally put rest to the speculation over the appointment of the next Chief Justice of India and has notified that Justice Dipak Misra will be the 45th Chief Justice of India after the incumbent Chief Justice, Justice JS Khehar, who is set to retire on August 28, 2017, had recommended Justice Misra’s name as his successor. Justice Misra, who was born on October 03, 1953, will serve as the Chief Justice of India till October 02, 2018.

Justice Misra has been serving as a Supreme Court Judge since October 2011. He began his career as an Advocate in 1977 and practiced in Constitutional, Civil, Criminal, Revenue, Service and Sales Tax matters in the Orissa High Court and the Service Tribunal. In 1996, he was appointed as an Additional Judge of the Orissa High Court and was later transferred to the Madhya Pradesh High Court in 1997 and became a permanent Judge in December 1997. Justice Misra has also served as the Chief Justice of the Patna and Delhi High Courts before being elevated to the Supreme Court.

While we wait for Justice Misra to take oath on August 28, let’s take a look at some of his notable Supreme Court judgments:

  • Nirbhaya Verdict[1]: The Nirbhaya case needs no introduction. The world waited for almost 5 years to know the fate of the men responsible for the heinous crime of gang rape and torture committed in a moving bus in Delhi on the night of December 16, 2012 which led to the death of a 23-year-old girl. As an aftermath, the whole world came together to demand justice for the girl and the prime accused committed suicide in his jail cell. Justice Misra headed the 3-judge bench that sent the 4 offenders to the gallows. In the 429-page long judgment, Justice Misra wrote that ghastly manner in which the offence was committed “sounded like a story from a different world where humanity has been treated with irreverence.”
  • Yakub Memon Hanging[2]: Justice Misra headed the 3-judge bench that held that there was no procedural flaw in the curative petition decided by the Supreme Court and the issuance of the death warrant by the TADA Court, thereby, ensuring the hanging of the 1993 Bombay Bomb Blast convict. Considering the urgency of the matter, the bench conducted an unprecedented midnight hearing and Yakub Memon was executed on the following morning. After Yakub Memon’s execution on July 30, 2015, it was reported that Justice Misra had received death threat via a letter that said that he will not be spared.[3]
  • National Anthem Case[4] : The 2-judge bench headed by Justice Misra made it mandatory for all cinema halls to play National Anthem, with the National Flag on the screen, before the film starts.
  • Nitish Katara Verdict[5]: Sentencing Vikas and Vishal Yadav to 25 years imprisonment for brutally murdering Nitish Katara who was in love with their sister, Justice Misra used strong words to condemn ‘honour killing’ and said that “neither the family members nor the members of the collective have any right to assault the boy chosen by the girl. Her individual choice is her self-respect and creating dent in it is destroying her honour. And to impose so called brotherly or fatherly honor or class honor by eliminating her choice is a crime of extreme brutality.”
  • Constitutionality of Criminal Defamation[6]: Justice Misra headed the bench that upheld the constitutionality of Criminal Defamation as an offence under Sections 499 and 500 IPC and held that an individual’s right to criticise is not absolute and right to free speech cannot mean right to defame others.
  • Online availability of FIRs[7]: Justice Misra was also one of the judges who directed the Union of India and the States to upload the FIRs on the official websites of police within 24 hours of registration so that the accused can download it and file appropriate application before the court.

Justice Misra, who, also serves as the Executive Chairman of the National Legal Service Authority, was the brain behind the idea of establishing Nyaya Sanyog i.e. Legal Assistance Establishments in all the State Legal Services Authorities in order to facilitate easier access to information with regard to the legal services.

Justice Misra is presently hearing some very important cases like the Whatsapp data privacy issue, Sahara matter, search engine regulation matter, etc. Justice Misra was also a part of the 7-judge bench that imposed 6 months imprisonment on Justice CS Karnan for being in contempt of court. He is also a part of the 3-judge bench that will be hearing the Ayodhya matter from August 11.

Trivia: Did you know that Justice Misra will be the second person from his family to serve as the Chief Justice of India? His uncle Justice Rangnath Misra was the 21st Chief Justice of India.

 

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[1] Mukesh v. State, (2017) 6 SCC 1

[2] Yakub Abdul Razak memon v. State of Maharshtra, (2015) SCC Online SC 661

[3]http://www.thehindu.com/news/national/supreme-court-judge-dipak-mishra-who-handled-yakub-memon-case-receives-threat-letter/article7511506.ece, last visited on 09.08.2017

[4] Shyam Narayan Chouksey v. Union of India, (2017) 1 SCC 421

[5] Vikas Yadav v. State of UP, (2016) 9 SCC 541

[6] Subramanian Swamy v. Union of India, (2016) 7 SCC 221 

[7] Youth Bar Asso. Of India v. Union of India, (2016) 9 SCC 473