Know thy Judge

The day marks as the death anniversary of former Chief Justice of India, Hon’ble Mr. Justice Y.V. Chandrachud who was born in Poona on 12-07-1920. He graduated with History and Economics in 1940 from the Elphinstone College, Bombay and had obtained his law degree in 1942 from ILS Law College, Pune. He enrolled as an advocate in High Court of Bombay in 1943. He was a part time professor of law in Government Law College, Bombay, from 1949 to 1952. He was appointed Judge, High Court Bombay, on 19-03-1961 and Judge, Supreme Court, on 28-08-1972. He was appointed the Chief Justice of India on 22-02-1978 and he was the longest serving CJI in India’s history at 7 years and 4 months and retired on 11-07-1985.

His son, Hon’ble Dr. Justice D.Y. Chandrachud who is currently acting as Judge, Supreme Court recalls that he was alert till his last breath and even after retirement in 1985, he was actively involved in mediation and arbitration. He has several times mentioned as to how his father had a special place for criminal law in his heart and how the former CJI’s verdicts served a reformative role rather than only serve the “penological purpose.”

A true jurist, he was known to be a liberal judge and for his path breaking judgments.

His landmark judgments include:

  • Minerva Mills Ltd. v. Union of India [(1980) 3 SCC 625] where he had laid down how a balance between fundamental rights and directive principles had to be achieved.
  • Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565] clearly showed his empathy for criminal law where he had laid down the law of anticipatory bail. He had held that anticipatory bail must be left to judges who have the experience to take a wise decision.
  • Mohd. Ahmed Khan v. Shah Bano Begum [(1985) 2 SCC 556] where he had ruled that  divorced Muslim women were entitled to claim maintenance from husbands under the Civil Procedure Code, which overrides the Muslim Personal Law.
  • Olga Tellis v. Bombay Municipal Corpn.  [(1985) 3 SCC 545] where he had extended Article 21 (Right to Life) of the Constitution to slum dwellers, ruling that they had the right to a roof over their heads.
  • While looking at the famous judgments no one can turn a blind eye towards the case of A.D.M. Jalbalpur v. Shivakant Shukla [(1976) 2 SCC 521] famously known as the ‘Habeas Corpus case’ which had famous for the wrong reasons, where he along with Justice P.N. Bhagwati, had decided that the right to life itself could be suspended during an emergency. He went on to bec­ome chief justice and later apologized for the decision. Justice Bhagwati also publicly repented for the same.

Did you know? In the recent privacy judgment, K.S. Puttaswamy v. Union of India, [(2017) 10 SCC 1] his son, Hon’ble Dr. Justice D.Y. Chandrachud found occasion to correct a historical wrong and held that the ADM Jabalpur decision was seriously flawed and ruled against it.

Suchita Shukla, Legal Editor has put this story together

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: In yet another historic verdict, the 5-judge constitution Bench of Ranjan Gogoi, CJ and NV Ramana, Dr. DY Chandrachud, Deepak Gupta and Sanjiv Khanna, JJ has held that the office of the Chief Justice of India comes under the purview of the Right to Information. In the 250-pages long judgment, Justice Sanjiv Khanna wrote the mjority opinion for the Bench and Justices NV Ramana and DY Chandrachud gave separate but concurring opinion.

Majority Verdict penned by Sanjiv Khanna, J

“Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence.”

Section 8(1)(j) vis-à-vis Section 11 of the RTI Act

Section 8(1)(j) specifically refers to invasion of the right to privacy of an individual and excludes from disclosure information that would cause unwarranted invasion of privacy of such individual, unless the disclosure would satisfy the larger public interest test. This clause also draws a distinction in its treatment of personal information, whereby disclosure of such information is exempted if such information has no relation to public activity or interest.

On the relative scope of both the provisions, the Court said,

“the scope of ‘information’ under Section 11 is much broader than that of clause (j) to Section 8 (1), as it could include information that is personal as well as information that concerns the government and its working, among others, which relates to or is supplied by a third party and treated as confidential. Third-party could include any individual, natural or juristic entity including the public authority.”

Public Interest Test

The Court said that the public interest test in the context of the RTI Act would mean reflecting upon the object and purpose behind the right to information, the right to privacy and consequences of invasion, and breach of confidentiality and possible harm and injury that would be caused to the third party, with reference to a particular information and the person.

Some of the important aspects highlighted by the Court are as follows:

    • Public interest has no relationship and is not connected with the number of individuals adversely affected by the disclosure which may be small and insignificant in comparison to the substantial number of individuals wanting disclosure.
    • Public interest is not immutable and even time-gap may make a significant difference
    • The type and likelihood of harm to the public interest behind the exemption and public interest in disclosure would matter. The delicate balance requires identification of public interest behind each exemption and then cumulatively weighing the public interest in accepting or maintaining the exemption(s) to deny information in a particular case against the public interest in disclosure in that particular case.
    • ‘Motive’ and ‘purpose’ for making the request for information is irrelevant and being extraneous cannot be a ground for refusing the information. However, this is not to state that ‘motive’ and ‘purpose’ may not be relevant factor while applying the public interest test in case of qualified exemptions governed by the public interest test.

Judicial Independence

The independence of judiciary is not limited to judicial appointments to the Supreme Court and the High Courts, as it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It consists of many dimensions including fearlessness from other power centres, social, economic and political, freedom from prejudices acquired and nurtured by the class to which the judges belong and the like.

The Court said that it cannot be doubted and debated that the independence of the judiciary is a matter of ennobled public concern and directly relates to public welfare and would be one of the factors to be taken into account in weighing and applying the public interest test. Thus, when the public interest demands the disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion. It, however, said,

“we should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information. Independence in a given case may well demand openness and transparency by furnishing the information.”

The Court concluded by saying that in each case, the public interest test would be applied to weigh the scales and on balance determine whether information should be furnished or would be exempt. Therefore, a universal affirmative or negative answer is not possible. However, independence of judiciary is a matter of public interest.

Delhi High Court’s Judgment

The Court upheld the 2010 Delhi High Court verdict where it had directed the CPIO, Supreme Court of India to furnish information on the judges of the Supreme Court who had declared their assets. The Court said that such disclosure would not, in any way, impinge upon the personal information and right to privacy of the judges.

NV Ramana, J’s separate but concurring opinion

“Right to information should not be allowed to be used as a tool of surveillance to scuttle effective functioning of judiciary.”

Stating that transparency cannot be allowed to run to its absolute, considering the fact that efficiency is equally important principle to be taken into fold, Justice Ramana talked about a 2-step process to ascertain whether the information should be disclosed. He laid down non-exhaustive lists of considerations that need to be considered while assessing both the steps

First Step: Whether information is private or not

  • The nature of information.
  • Impact on private life.
  • Improper conduct.
  • Criminality
  • Place where the activity occurred or the information was found.
  • Attributes of claimants such as being a public figure, a minor etc and their reputation.
  • Absence of consent.
  • Circumstances and purposes for which the information came into the hands of the publishers.
  • Effect on the claimant.
  • Intrusion’s nature and purpose

Second step: Whether the public interest justifies discloser of such information under Section 8(1)(j) of the RTI Act

  • Nature and content of the information
  • Consequences of non-disclosure; dangers and benefits to public
  • Type of confidential obligation.
  • Beliefs of the confidant; reasonable suspicion
  • Party to whom information is disclosed
  • Manner in which information acquired
  • Public and private interests
  • Freedom of expression and proportionality.

Chandrachud, J’s separate but concurring opinion

“To use judicial independence as a plea to refuse accountability is fallacious. Independence is secured by accountability. Transparency and scrutiny are instruments to secure accountability.”

Though Chandrachud, J noticed that to be independent a judge must have the ability to decide ‘without fear or favour, affection or ill will’ and that the Constitution creates conditions to secure the independence of judges by setting out provisions to govern appointments, tenure and conditions of service, he, however, said

“But constitutional design must be realised through the actual working of its functionaries. Mechanisms which facilitate independence are hence a crucial link in ensuring that constitutional design translates into the realisation of judicial independence. Facilitative mechanisms include those which promote transparency. For true judicial independence is not a shield to protect wrong doing but an instrument to secure the fulfilment of those constitutional values which an independent judiciary is tasked to achieve.”

He further said that the judiciary, like other institutions envisaged by the Constitution, is essentially a human institution. The independence of the judiciary was not envisaged to mean its insulation from the checks and balances that are inherent in the exercise of constitution power.

[Central Public Information Officer v. Subhash Chandra Agarwal, 2019 SCC OnLine SC 1459, decided on 13.11.2019]

Hot Off The PressNews

Supreme Court: CJI Ranjan Gogoi has recused himself from hearing the plea challenging appointment of M Nageswara Rao as the interim director of CBI as he is a part of the selection committee that will choose the new CBI Director. The high-powered selection committee comprises the prime minister, the leader of the largest opposition party and the CJI or his nominee judge of the Supreme Court.

The bench of CJI and Justice Sanjiv Khanna was hearing a PIL filed by NGO Common Cause challenging the appointment of Rao as interim CBI director. The matter will now be taken up by a new bench on January 24, 2019.

(Source: PTI)

Hot Off The PressNews

Supreme Court: The Bench comprising of CJ Dipak Misra and AM Khanwilkar and Dr DY Chandrachud JJ., received suggestions from the Attorney General KK Venugopal on the matter regarding the proposal of live streaming of court proceedings being the “need of the hour”.

Attorney General KK Venugopal stated that video recording and live streaming of judicial proceedings can be undertaken on a trial basis in constitutional matters being heard by the Chief Justice of India’s court. Live streaming can be undertaken on an experimental basis for one-three months to ascertain how it functions technologically.

Venugopal would further collate all the suggestions coming up for the said matter and present them to the Court.

Further, the bench of the Supreme Court listed the said matter for further hearing on 30-07-2018.

[Source: PTI]

Case BriefsSupreme Court

Supreme Court: Dismissing the petition seeking drafting of set Procedure for constituting the benches and allotment of jurisdiction to different benches in Supreme Court, the 3-judge Bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ held that there cannot be a presumption of mistrust against the Chief Justice of India. The Bench held that in the allocation of cases and the constitution of benches the Chief Justice has an exclusive prerogative. The authority which is conferred upon the Chief Justice is vested in a high constitutional functionary and is necessary for the efficient transaction of the administrative and judicial work of the Court. The Court said:

“In his capacity as a Judge, the Chief Justice is primus inter pares: the first among equals.”

The order that was penned by Chandrachud, J also stated that the writ of mandamus filed by the petitioner was manifestly misconceived as it is a well settled principle that no mandamus can issue to direct a body or authority which is vested with a rule making power to make rules or to make them in a particular manner. The Supreme Court has been authorised under Article 145 to frame rules of procedure.

Regarding the contention that certain categories of cases or certain courts must consist only of the senior-most in terms of appointment, the Bench held that every Judge appointed to this Court under Article 124 of the Constitution is invested with the equal duty of adjudicating cases which come to the Court and are assigned by the Chief Justice. Seniority in terms of appointment has no bearing on which cases a Judge should hear. It was held:

“To suggest that any Judge would be more capable of deciding particular cases or that certain categories of cases should be assigned only to the senior-most among the Judges of the Supreme Court has no foundation in principle or precedent. To hold otherwise would be to cast a reflection on the competence and ability of other judges to deal with all cases assigned by the Chief Justice notwithstanding the fact that they have fulfilled the qualifications mandated by the Constitution for appointment to the office.”

Regarding allocation of cases in the High Courts, the Court explained:

“The High Courts periodically publish a roster of work under the authority of the Chief Justice. The roster indicates the constitution of Benches, Division and Single. The roster will indicate the subject matter of the cases assigned to each bench. Different High Courts have their own traditions in regard to the period for which the published roster will continue, until a fresh roster is notified. Individual judges have their own strengths in terms of specialisation. The Chief Justice of the High Court has to bear in mind the area of specialisation of each judge, while deciding upon the allocation of work. However, specialisation is one of several aspects which weigh with the Chief Justice.”

Noticing that the averments which have been made by the petitioner, an advocate, were scandalous, the Court asked the petitioner to be more responsible for the manner in which he seeks to draft pleadings in future filings. [Asok Pandey v. Supreme Court of India, 2018 SCC OnLine SC 361, decided on 11.04.2018]

To read the details of another petition filed on similar lines by former Law Minister and Senior Advocate Shanti Bhushan and the timeline of events that led to the filing of the said petition, click here.

Hot Off The PressNews

Former Law Minister and Senior Advocate Shanti Bhushan has filed a petition before the Supreme Court challenging the power of the Chief Justice of India (CJI) to assign cases to Benches. In his petition, he has said that CJI’s authority as ‘master of roster’ should not be absolute, singular and arbitrary and hence, the allocation of cases to the Benches should not be done by the CJI but by the Collegium. He said:

“the collective opinion of a collegium of senior judges is much safer than the opinion of the Chief Justice alone.”

In the petition in which CJI Dipak Misra has been named as a party, Shanti Bhushan has sought clarification on the administrative authority of the CJI as the master of roster and for the laying down of the procedure and principles to be followed in preparing the roster for allocation of cases. The petition says:

“Master of roster cannot be unguided and unbridled discretionary power, exercised arbitrarily by the Chief Justice of India by hand-picking benches of select Judges or by assigning cases to particular judges.”

The said petition has been filed in the light of the recent crisis that the Indian Judiciary is going through. Below is the timeline of events that led to the filing of this petition:

  • A petition is filed by Advocate Kamini Jaiswal alleging that attempts were made to bribe some Supreme Court judges, including CJI Dipak MIsra, in the matters relating to Medical admission scam.
  • Bench of J Chelameswar and S. Abdul Nazeer, JJ directs that the matter be heard by the Constitution Bench of the first five Judges of the Supreme Court.
  • A 7-judge bench headed by CJI Dipak Misra, recalls the 2-judge Bench order calling for constitution of a Constitution Bench of the first five judges of the Supreme Court. CJI assigns the Medical Scam case filed by Kamini Jaiswal to a 3-judge Bench of 3-judge bench of RK Agrawal, Arun Mishra and AM Khanwilkar, JJ. Sikri and Bhushan, JJ later recused themselves from the matter and the Bench of remaining 5-judge held:

“There can be no doubt that the Chief Justice of India is the first amongst the equals, but definitely, he exercises certain administrative powers.”

“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.”

(With inputs from The Hindu)