The unprecedented Press Conference by four senior-most judges of the Supreme Court has exposed a grave constitutional crisis. The four judges felt compelled to alert the citizens of the country that the key constitutional principle of the judiciary’s independence from the executive might be compromised. In other words, they suggested that the Chief Justice of India might be misusing his powers as ‘master of the roster’ to assign sensitive cases to selective benches in the hope of verdicts that could favour the Government.
If the Government is able to meddle in judicial independence and influence judiciary in its favour, the country’s democracy is in danger. We cannot forget that during the Emergency, the judiciary’s loyalty to the Indira Gandhi regime was one of the the most serious symptoms of the crisis of democracy. Indira Gandhi had superseded three senior-most judges in 1973 to appoint a CJI who was loyal to her regime. During the Emergency. These three judges, who had delivered the majority judgement in the historic Kesavananda Bharati case, ruling that the parliament cannot amend the basic structure of the Constitution, resigned in protest following the supersession. During the Emergency, the majority of judges in a five-judge Constitution Bench gave the infamous ruling in the A.D.M. Jabalpur v Shivkant Shukla case that the fundamental rights could be suspended during the Emergency. Justice HR Khanna, the lone dissenting voice on the Bench, resigned in 1977 after being superseded for the post of CJI. These dissenting judges who resigned are now viewed as heroes who defended the Constitution instead of genuflecting to power. Today, the four judges who alerted the(Four Supreme Court judges have alerted the country to ‘democracy in danger.’ The people of the country can ignore this warning only at our own peril. The Prime Minister, speaking in staged ‘interviews’ to ‘godi’ (lapdog) journalists, airily dismissed the issue as being one ‘internal’ to the judiciary. But the issue is not merely one relating to the judiciary – the spotlight is directly on the Modi Government and top BJP leaders who are implicated in attempts to subvert the independence of the judiciary. The death of Judge Loya is only the most sinister and troubling of these alleged attempts. Liberation examines the issues.) people about the unspoken Emergency, deserve the same respect and applause that their dissenting predecessors command.
Apologists of the Modi government say that the issues raised by the four judges are an ‘internal matter’ and a ‘family dispute’ which should not have been aired publicly and can be resolved mutually over a cup of tea. Nothing could be further from the truth. If the Government and ruling party are able to secure potentially pliant benches in courts that are likely to deliver a favourable verdict, it is a clear and present danger for democracy – and every citizen has a right to know about such a danger. Transparent norms and rules must be applied in the CJI’s exercise of his powers as master of the roster.
The case that reportedly was the final trigger for the judges’ historic press conference was the petition regarding the suspicious death of Judge Loya. The questions around Judge Loya’s death also raise the possibility of bench fixing. The Supreme Court had ordered that the Sohrabuddin murder case be heard in Maharashtra, not Gujarat, and that it be heard from start to finish by the same judge. However, Judge JT Utpat who was hearing the case was abruptly transferred from the CBI Court. Was his transfer a case of bench fixing? Judge Loya replaced him, and according to his sister, he was approached by the then Chief Justice of the Bombay High Court with a bribe to give a judgement that would favour BJP President Amit Shah. Was his suspicious death, soon after he reportedly refused the bribe, also a sinister way of bench fixing – that is, of paving the way for a judge who was more likely to give a favourable judgement to a leader of the ruling party? Why was such a sensitive case given by the CJI to a junior judge with a reputation of favouring the BJP Government? The fact that the CJI eventually had to withdraw the Loya case from the said junior judge’s court is welcome; it is hoped that the case will be reassigned to a more credible Bench. The press conference held by Loya’s young son asking the media and activists to leave his family alone also raises questions about who brought pressure on Loya’s family to silence the questions that Loya’s own sister and father were the first to raise. Moreover, the fact remains that if a crime is suspected, it is a crime against society – and it is not for the family of any alleged victim to decide whether or not a crime is to be investigated.
Facts show that it is not just the handling of the Loya case for which the CJI has to answer. Transcripts of tapped phone conversations recorded by the CBI reveal accused persons in the Medical College bribery case to be referring to bribes offered to judges in Allahabad and Delhi. The CJI himself headed all the benches that gave favourable judgements to the Glocal Medical College and Super Speciality Hospital and Research Centre run by the Prasad Education Trust. A five-judge bench headed by the CJI not only dismissed a petition seeking that he recuse himself from hearing cases relating to this scam, but nullified a decision given by Justice J. Chelameswar and S. Abdul Nazeer to set up a constitutional bench of the court’s five senior-most judges to hear a petition about judicial corruption that involved the Medical College bribery scam. The CJI also denied permission to the CBI to file an FIR against Justice Narayan Shukla of the Allahabad High Court, in spite of evidence in the CBI’s possession pointing to the judge’s having accepted a bribe from the medical college.
Several other crucial cases – which pertain to the fundamental rights of India’s people and are also of great interest and importance to the political fortunes of the ruling party – are pending in the Supreme Court, including the Aadhaar case and the Ayodhya case. It is most important that the concerns raised by the four SC judges be addressed, to ensure that the judicial process be seen to be transparent, unbiased, and just.
Till now, there is little sign on the CJI’s part of any step taken to reassure the country that his senior-most colleagues’ concerns are being addressed. In fact, the four dissenting judges have been excluded from the Constitution Bench formed by the CJI to examine several pending cases including the Aadhaar case. The questions relating to Judge Loya’s death also remain. It is imperative that an impartial probe be ordered into Judge Loya’s death, and also that transparent norms be adopted for the management of the Supreme Court roster. These questions do not pertain merely to the Chief Justice of India – they are questions about the intentions and actions of the Modi Government. It is apparent that in every institution in India – Universities, Courts, investigative agencies, RBI, Election Commission, media – there is a struggle between those upholding the Constitution and those who instead subvert the Constitution to serve the Modi Government. The people of India must stand firm with the four dissenting judges as well as with all those who are defending the Constitutional and democratic norms in every arena.
The All India People’s Forum (AIPF) held a public meeting on January 15 at Delhi on the ‘Suspicious Death of a Judge: Implications for Democracy’, in which questions around the death of Judge Loya were raised. The meeting was attended by several hundred people.
Gautam Mody of NTUI introduced the meeting, and explained the urgent need to break the silence on the issue and raise the questions forcefully. Kavita Krishnan of CPI(ML) introduced the speakers and conducted the meeting.
The first speaker was Niranjan Takle, the journalist whose investi(Four Supreme Court judges have alerted the country to ‘democracy in danger.’ The people of the country can ignore this warning only at our own peril. The Prime Minister, speaking in staged ‘interviews’ to ‘godi’ (lapdog) journalists, airily dismissed the issue as being one ‘internal’ to the judiciary. But the issue is not merely one relating to the judiciary – the spotlight is directly on the Modi Government and top BJP leaders who are implicated in attempts to subvert the independence of the judiciary. The death of Judge Loya is only the most sinister and troubling of these alleged attempts. Liberation examines the issues.)gative report in the Caravan first broke the story of the grave issues surrounding the Judge’s death. Niranjan Takle said that journalists and citizens must fearlessly ask questions and listen to questions – even if those in power order us to shut our eyes, ears, and mouths to questions. As a journalist, he said, it was his job to ‘tell the truth and shame the devil.”
Uday Gaware, former President of the Latur Bar Association and a close friend of Loya’s, said that Loya’s friends had begun suspecting a “premeditated murder” since the very day of his funeral in Latur. “If the worshippers of the pen sleep, then worshippers of the nation will sell off the country. Loya embraced death but never sold his integrity,” Gaware said. He added, “Judge MB Gosavi replaced Loya withn 15 days of his death, and within 15 days, he read the 10,000-page CBI chargesheet and discharged the president of a party. This case (Sohrabuddin encounter case) was going on from 2005, but the new judge understood the case within 15 days?” He also asked why Supreme Court judges were being criticised for addressing the Press but the two Judges who spoke to newspapers to try and belie Takle’s story about Loya’s death are not being similarly criticised. He said “If probes take place today whether Mahatma Gandhi died of three bullets or four, decades after his murder, why can’t a death that took place a mere three years ago be probed?”
The Caravan’s political editor, Hartosh Bal, said that the Loya story went to the heart of the rot of the current regime. He said that corruption during the UPA regime involved three of the four pillars of democracy – legislature, executive and media; communal hatred and corruption during the NDA regime involves all the four pillars, including the judiciary. He ended by saying that the first person to seek an impartial probe into the Loya matter ought to be Amit Shah himself.
Former judge of the Bombay High Court, Justice BG Kolse Patil, said that there was an atmosphere of fear – if the truth about Loya’s death were not probed, every judge would remain in fear that he too could be killed if he refused a bribe.
Senior advocate Indira Jaising said that the key question was “Is the executive interfering with the functioning of the judiciary?”. She said that the judiciary can collapse from within but only if the government interferes in its functioning. She compared the judges’ Press Conference to the resignation of Supreme Court judges during the Emergency, and said that it is important today that judges do not resign but instead alert the people of the country about the rot in the judiciary.
John Dayal, on behalf of AIPF, summed up the concerns of people and thanked all those who helped make the meeting a success.
14th January 2018
Dear Chief Justice,
The four senior puisne Judges of the Supreme Court have brought to light a serious issue regarding the manner of allocation of cases, particularly sensitive cases, to various benches of the Supreme Court. They have expressed a grave concern that cases are not being allocated in a proper manner and are being allocated arbitrarily to particular designated benches, often headed by junior judges, in an arbitrary manner. This is having a very deleterious effect on the administration of justice and the rule of law.
We agree with the four Judges that though the Chief Justice of India is the master of roster and can designate benches for allocation of work, this does not mean that it can be done in an arbitrary manner such that, sensitive and important cases are sent to hand picked benches of junior judges by the Chief Justice. This issue needs to be resolved and clear rules and norms must be laid down for allocation of benches and distribution of cases, which are rational, fair and transparent. This must be done immediately to resto(Four Supreme Court judges have alerted the country to ‘democracy in danger.’ The people of the country can ignore this warning only at our own peril. The Prime Minister, speaking in staged ‘interviews’ to ‘godi’ (lapdog) journalists, airily dismissed the issue as being one ‘internal’ to the judiciary. But the issue is not merely one relating to the judiciary – the spotlight is directly on the Modi Government and top BJP leaders who are implicated in attempts to subvert the independence of the judiciary. The death of Judge Loya is only the most sinister and troubling of these alleged attempts. Liberation examines the issues.)re public confidence in the judiciary and in the Supreme Court. However till that is done, it is important that all sensitive and important cases including pending ones, be dealt with by a Constitution Bench of the 5 senior most Judges of this Court. Only such measures would assure the people that the Supreme Court is functioning in a fair and transparent manner and that the power of the Chief Justice as master of roster is not being misused to achieve a particular result in important and sensitive cases. We therefore urge you to take immediate steps in this regard.
Justice P.B. Sawant,
(Retd.) former Judge, Supreme Court of India
Justice A.P. Shah,
(Retd.) former Chief Justice, Delhi High Court
Justice K. Chandru,
(Retd.) former Judge, Madras High Court
Justice H. Suresh,
(Retd.) former Judge, Bombay High Court