Four judges who criticised CJI Dipak Misra not on Bench that will hear 7 key matters

Written by ANANTHAKRISHNAN G | New Delhi | Updated: January 16 2018 7:09 am Chief Justice of India Justice Dipak Misra (Express Photo by Tashi Tobgyal/File) Three days after four senior judges questioned the conduct of Chief Justice of India Dipak Misra in the allocation of cases the Supreme Court Monday put out a list of seven cases which will be heard by a Constitution Bench starting January 18. Not one of the four judges Justices J Chelameswar Ranjan Gogoi Madan B Lokur and Kurian Joseph figure in this Bench. The Constitution Bench formed earlier to hear the matter of the challenge to Aadhaar comprises CJI Misra and Justices A K Sikri A M Khanwilkar D Y Chandrachud and Ashok Bhushan. It will now take up for hearing the challenge to criminalisation of homosexuality (Section 377 case); restrictions on entry of women into the Sabarimala temple; the question raised by a Parsi woman that bars her entry into a fire temple because she had married outside her religion; a petition challenging the adultery provision in the Indian Penal Code which says a woman cannot be punished for adultery and only the man can be punished; and a petition on whether legislators facing criminal cases should be disqualified at the stage of charges being framed against them. The sixth petition before the Bench concerns taxation while the seventh deals with consumer law. Also Read | Four most senior Supreme Court judges target CJI Dipak Misra question his conduct Justices J Chelameswar Ranjan Gogoi Madan B Lokur and Kurian Joseph address the press in New Delhi on Friday (Express Photo/File) Two petitions demanding an independent probe into the 2014 death of CBI Special Judge B H Loya too will come up before a bench of Justices Arun Mishra and Mohan M Shantanagoudar on Tuesday. The matter was listed for Monday but was moved to Tuesday since Justice Shantanagoudar was not available. Last Friday the four senior judges who held a press conference said they had raised the question of allocation of the Loya matter with the CJI when they met him that morning. For all the latest India News download Indian Express App Tags: Dipak Misra supreme court shankar nJan 16 2018 at 7:28 amMr prashant bhushan has sent a manuscript requesting a probe on cji many indians will surely welcome it ... many indians may privately question the integrity of justice misra(1)(1) Reply Ramesh BhatJan 16 2018 at 7:23 amThe four judges behaved like a kid throwing tantrums for not getting their wish of candy. Had they raised their concerns on judicial corruption nepotism long list of pending cases etc which are denying the justice to common man then people of this country would have been very grateful. But alas..So Shameful behaviour....................(4)(3) Reply Madan GuptaJan 16 2018 at 6:37 amthey should be booked for holding press conference no government employee can do that. it is against conduct rules. allow state central and city government employees also to hold press conference as and when they desire.(6)(26) ReplyMohamed KhanJan 16 2018 at 7:10 amMoron supreme court is not under govt .........(13)(1) Reply There are many ways to look at last Friday s imbroglio in the Supreme Court. But like most things in life the timing of the implosion is significant if not intriguing. That much was wrong inside the grand premises on New Delhi s Tilak Marg has been a poorly kept secret for long. Corruption in the higher judiciary has been spoken of not only in hushed tones inside chambers and corridors but sometimes even in open court. Eminent lawyers like Ram Jethmalani and Shanti Bhushan have submitted to the reigning chief justices of the day names of retired CJIs and judges who in their view would have failed the https://www.edocr.com/user/kkabhi   Caesar s wife test. However in a closed club of senior counsels and former judges impeachments have been all too rare. Similarly differences and conflicts between judges are not unknown. As eminent barrister Harish Salve pointed out anyone making it to the highest judiciary of the land would by definition have a robust intellect . Judges after all are also human and it would be highly unnatural if strong individuals do not have occasional disagreements. File image of Chief Justice of India Dipak Misra. PTI Salve said in his long years of practice he has seen such bouts of tensions from close quarters and as Solicitor General he was personally privy to quite a few such situations. But those were always resolved within closed doors among the bench. Surely there could not have been a unanimous agreement always and at times brother judges would have had to bury their differences in a spirit of agree to disagree . A few retired judges like Justice RS Sodhi and Justice Santosh Hegde who appeared on television expressed similar views. Unfortunately this time around the family linen has tumbled out of the washing machine into the lawns of a judge s residence. Justice Chelameswar s discomfort with the Collegium precedes the present chief justice (he refused to attend Collegium meetings even in CJI TS Thakur s tenure). The current saga ostensibly began with a letter the four senior judges had written to the chief justice a couple of months ago. The concerns raised by them were certainly worthy of consideration. But Justice Dipak Misra is not the first CJI whose administrative decisions have raised eyebrows. There were other CJIs during the tenure of these four eminent judges in the Supreme Court who did not have a lily-white reputation. Not that any of that can be a justification no specific instances were cited at the press conference at Justice Chelameswar s residence which can be deemed as posing a grave danger to democracy . It is only after persistent prodding by some journalists and non-journalists (who had gate-crashed into the presser) that Justice Ranjan Gogoi yielded the Judge Loya case had something to do with the impasse. Obviously more was left unsaid than said leading to avoidable inferences insinuations and innuendos. Sections of the media and a few notable members of the bar were quick to extrapolate that the crisis had arisen out of arbitrary decisions of the chief justice in allotting cases between the various benches. While reluctantly admitting the CJI as master of the roster they hinted that his decisions to assign certain sensitive matters to relatively junior judges were not innocuous. Among the political parties quite predictably Congress with its battery of legal eagles came out all guns blazing. Stopping short of accusing the chief justice of acting at the behest of the government they questioned his prerogatives. It was repeatedly said that he is at best the first among equals with no special powers and can be held accountable even for administrative decisions. Rahul Gandhi in an entirely unwarranted intervention went a step ahead to advise that the senior-most judge of the Supreme Court must hear the Judge Loya case (which many thought was a sheer giveaway of the Congress game plan). Some loose cannons in the press and from the lawyer fraternity plainly talked of government interference in the Judiciary. However to a lay observer if one were to go by the government s track record in the Supreme Court over the last three years it has been at the receiving end more often than not. In fact legal management was never seen as a forte of the Narendra Modi government unlike the Congress which has historically been a party of lawyers. Therefore if the BJP government tried to meddle with the courts it has certainly not been very successful or effective at that. Dhananjay Mohapatra of The Times of India one of the most experienced and knowledgeable Supreme Court reporters has compiled a list of cases from the past twenty years to show there is no precedence that sensitive cases must go to the senior-most judges. Then there is also the question of who or what criterion determine a case is sensitive or not? On this too Salve commented tongue firmly in cheek to a TV Channel reporter: ... you should ask these questions to lawyers who handle matters of national interest and not to me who deals with cases of petty commercial interest . This is what makes the timing of the press conference curious. The letter of the judges released to the press was written several weeks ago. So what exactly precipitated the showdown? Was Justice Loya s case of such tremendous national importance for the judges to take it to the peoples court or the nation as Justice Chelameswar announced? If that was indeed so does it not betray a certain predisposition in the minds of the four judges which itself may have been a reason for the CJI to refer it to another bench. This is what lends credence to the theory that there was more to it than meets the eye. It is not for this writer to infer if this could be a spillover of the Medical College bribery case which the CJI had taken away from Justice Chelameswar s court. While Justice Chelameswar would have reasons to be miffed it is difficult to believe that someone of his stature would have taken it personally to heart. However the lawyers who were rebuffed did not make any secret of their hostility and coincidentally these are the same people who have been most vocal against the CJI over the weekend. Similarly it would be tempting to attribute reactions of the Congress to their discomfiture over Justice Misra s order to reopen SIT investigations on the 1984 Sikh riots or his presiding over Ram Janmabhoomi case hearing that is slated to commence soon. But that would be entering the realms of speculation which is best avoided in a legally loaded issue. However it is clear from the developments of the last few days that the incumbent CJI is isolated among his colleagues of the Collegium and a certain section of the Bar who have very clear ideological and political affiliations. This reflects a kind of polarisation that one is seeing in many institutions of the country and here Justice Misra is the quintessential outsider in an eco-system that was kept watertight till recently. A pattern seems to be emerging in which the old empire is trying to repeatedly strike back by rendering institutions dysfunctional through well engineered and orchestrated attacks. Whether the Supreme Court is its latest target can only be a subject of conjecture. If one were to subscribe to conspiracy theories then this could easily pass as an attempt by elements in the Opposition to impeach by subterfuge since they neither have justiciable evidence (as Pratap Bhanu Mehta calls it) nor the numbers in Parliament to move an impeachment motion. All this while the chief justice himself has not uttered a single word on the issue and is going on with his court work as usual. The government to its credit has maintained a studied silence calling it an internal matter of the Judiciary. Barring some unconfirmed report of the prime minister s principal secretary being spotted in a car outside the chief justice s residence it would appear they have at best left the matter to the attorney general s wisdom and standing in the Judiciary. It is entirely possible that after the outburst truce will be restored the crisis will blow over and the judges will return to the bench as indeed they have done today. But the earth would have moved a few inches after the weekend tremors. NEW DELHI: The four senior most Supreme Court judges today virtually revolted against Chief Justice of India (CJI) Dipak Misra who has been a part of several key and sensitive verdicts including that of confirming the death sentence of Mumbai blasts convict Yakub Memon during a midnight hearing. Before being elevated as the 45th CJI attempts were made to stall his elevation but Justice Misra took oath as the head of the judiciary on August 28 last year. Misra who has a 13 month-long tenure till October 2 has been having a tough time in dealing with his colleagues and often reports have surfaced that there have been serious disagreements between him and other senior judges of the five-member collegium and Justice J Chelameswar has often made his displeasure public. Not only from within but activist lawyers have also been critical of his functioning which was manifested in a medical college matter when the CJI and advocate Prashant Bhushan had a heated exchange of words in a packed courtroom. CJI Misra had to hurridely constitute a five-judge bench of his choice after a two-judge bench headed by Justice Chelameswar had ordered setting up of a five-judge bench of senior most judges to hear the petitions by an NGO and a lawyer levelling serious allegations of bribes being taken in the names of judges to get favourable order in a medical college case. The CJI-headed bench had overturned Justice Chelameswar s order and asserted that Chief Justice of India is the master of the roster . The vexatious Ayodhya land title dispute in the Babri Masjid case which is being heard by a bench headed by CJI Misra has also witnessed war of words between Justice Misra and senior lawyers like Kapil Sibal and Rajeev Dhavan. Besides these controversies Justice Misra one of the most eloquent judges in the apex court has been part of several key verdicts including the December 16 gangrape and murder case in which four men were sent to gallows. He headed the bench which in an unprecedented pre-dawn hearing in 2015 when the doors of the apex court were opened at 1 AM rejected last-ditch efforts by Memon to get his execution stayed. He is also hearing several crucial issues such as SEBI- Sahara payment row BCCI reforms 1984 anti-Sikh riots matters related to real estate majors. Justice Misra who was elevated to the apex court bench on October 10 2011 from the Delhi High Court where he was the Chief Justice has already presided over several key cases and verdicts. He headed the apex court bench which upheld the constitutional validity of 156-year-old penal laws on defamation holding that the reputation of one cannot be allowed to be crucified at the altar of the other s right of free speech . Justice Misra had also mandated the playing of the national anthem before the screening of films in cinema halls. The order was recently modified and the top court made it optional for cinema halls to play the national anthem before screening of a film. Another significant judgement by Justice Misra was one directing states and union territories to upload FIRs on websites within 24 hours of their registration to enable the accused and others to file appropriate pleas in the courts for redress. Justice Misra who was enrolled as an advocate in 1977 has practised in constitutional civil criminal revenue service and sales tax matters in the Orissa High Court and Tribunals before being elevated to the High Court bench. He was appointed Additional Judge of the Orissa High Court in January 1996 after which he was transferred to the Madhya Pradesh High Court in March 1997. In 2009 Justice Misra became the Chief Justice of the Patna High Court and assumed charge as the Chief Justice of the Delhi High Court in May 2010. He was appointed a Judge of the Supreme Court of India on October 10 2011. A day after four Supreme Court judges decided to come out in public with complaints against Chief Justice of India Dipak Misra the Supreme Court Bar Association on Saturday said that those allegations were not substantial and the press conference was ill-planned .On Friday justices Jasti Chelameswar Ranjan Gogoi Madan B Lokur and Kurian Joseph the four most senior judges in the country after Misra openly protested against the chief justice bypassing established traditions in court to assign cases to benches. If they had to come for a press conference they should have said something substantial Supreme Court Bar Association President Vikas Singh told ANI on Saturday. Just creating doubts in the minds of people will not serve the interest of the judiciary. Singh added that now people will wildly guess about what is happening inside the top judicial body and all kinds of things will be said about the Supreme Court . The Supreme Court Bar Association will now be proactive and make sure that this doubt instilled in the minds of the public is dealt with Singh told News18. He said the matter was avoidable and because of the drama people are very sceptical about the impartiality of the Supreme Court .The association is expected to meet on Saturday evening to discuss the matter and will later hold a press conference. Singh also said that there was no question of impeachment of CJI Misra.The Bar Council of India said holding a press conference on a minor issue of roster is saddening . Its Chairman Manan Kumar Mishra said a delegation from the council will meet the rebel judges the chief justice and other senior judges on Sunday and request them to not bring issues like these in front of the public .Holding a PC on a minor issue of roster is saddening. We have a meeting at 5 pm today & tomorrow our delegation will meet those senior judges CJI & other judges & request them to not bring issues like these in front of public: Manan Kumar Mishra Chairman Bar Council of India pic.twitter.com/qrKzR4wgc2 ANI (@ANI) January 13 2018 In a letter that the four judges wrote to Justice Misra which was released to the media on Friday they alleged that the chief justice had violated conventions in his role as the master of the roster. They were referring to Chief Justice Misra s allocation of cases in the Supreme Court which many have questioned most vocally after he moved the Medical Colleges bribery scam from Justice Chelameshwar s court to his own in November 2017.The press conference had evoked mixed reactions from various members of the society.Later in the day Attorney General KK Venugopal had said that the judges should have avoided speaking to the media. The Congress called for a full court to investigate the allegations against Misra amid rumours that the party was considering moving impeachment proceedings against the chief justice. The Bharatiya Janata Party then accused the Congress of politicising the matter. Written by Pratap Bhanu Mehta | Updated: January 15 2018 11:00 am Supreme Court (File) Related News Supreme Court crisis: See a political conspiracy what judges did is unforgivable says senior RSS leaderMedical Council of India bribery scam: Prashant Bhushan sends transcripts to four rebel plus Justice Sikri says probe CJIFour judges who criticised CJI Dipak Misra not on Bench that will hear 7 key mattersIn times of deep institutional crisis the invocation of moral conscience a reminder that posterity will adversely judge those who sold their souls is on the face of it an important and courageous gesture. Four Supreme Court Justices with formidable reputations have taken the unprecedented step of going public with their disquiet about the chief justice. They have confirmed that the Supreme Court is facing a serious crisis of legitimacy. Their concerns deserve serious attention. If handled well this could be a moment for the regeneration of the Court. But Indian institutions are also replete with examples where self-validating moral consciences quickly descend into a grammar of anarchy. The challenge will be to ensure that this does not happen. This case is particularly tricky because of the nature of the charge. The core issue in this instance is that the justices have lost confidence in the chief justice Dipak Misra. They are alleging grave misconduct on his part. In that sense the allegations are personal. Long-standing structural issues relating to the power of chief justices Memorandum of Procedure appointments etc are in the backdrop of this case. The Court has been acting arbitrarily in a lot of cases. This crisis has been built up over a number of years with the complicity of a large number of justices. But this case is not about these issues. The judges can institutionally advocate reform. Some of the individuals will also as future chief justices have opportunities to initiate reform. Debate or advocacy over judicial reform does not require this kind of a public accusation. The core issue in this instance is the conduct of this particular chief justice. This column is no fan of the chief justice. But we have to carefully parse out the issues. The core claim seems to be the chief justice has departed from convention and seems to be allocating cases in ways his colleagues find objectionable. But the gravity of this charge comes from two implications. First that this is not just a departure from convention but an attempt to fix cases or manipulate the outcome perhaps in politically sensitive cases. The charges are serious only for this reason. Otherwise the most you can accuse the chief justice of is lack of administrative skills and lack of judgement when it comes to handling processes. These are not trivial matters. But if it were merely these matters they could have held their noses for a bit. It is only when you think that the stench of wrong doing is so overwhelming that you go public. Justice Chelameswar Ranjan Gogoi Madan Lokur and Kurian Joseph at the press conference. (Express Photo/Abhinav Saha) The second implication is that those judges to whom cases are being assigned will also somehow at least in the chief justice s mind be amenable to being fixed. So the issue is not just four justices versus the chief justice. The issue is four justices questioning not just the integrity of the chief justice but also by implication of their colleagues. We are disposed to believe the truth of these accusations because there is a distrust in the integrity of the Court (like there was distrust of politicians). But two difficulties arise. How do we adjudicate this core accusation? The charge is serious. For all we know it may very well be true. But do we have justiciable evidence? The charge is so serious that if there is evidence it warrants formal proceedings against the chief justice. If any political party has evidence that the chief justice has exercised his discretion to fix cases they should initiate impeachment proceedings. And the judges who went public will have to be material witnesses. On the other hand if the charge does not rise to this level of seriousness or there is no justiciable evidence then is it right to accuse the chief justice of wrongdoing publicly? The justiciable standard may be too high but it is the only one that can apply when such a grave accusation is made. Or else you have the grammar of anarchy. It is alarming when legal luminaries from judges to lawyers now use hearsay to pronounce guilt or innocence. Or the entire discourse has become about inferring motives. Poor Justice Karnan must be wondering why his more direct accusations against judges invited contempt. The core issue in this instance is that the justices have lost confidence in the chief justice Dipak Misra (File) There is no half-way house when it comes to guilt or innocence. The judge s press conference and the artfully evasive letter seem to suggest there is. But now that they have gone public they have to follow through on the seriousness of the charge; otherwise this is just pressure tactics. It is dangerous pressure tactics because one implication will be that any pro-government decision on a bench allotted by the chief justice will now have the imprimatur of doubt over it. But the question is who will do the adjudication of the chief justice s guilt? There is now no way of avoiding this question. The second dilemma is this. It is a good thing that everyone talking about institutional reform. Some like a little more formalisation of the powers of the chief justice are good things. But given the nature of the accusation those reforms are not what is at stake here. What is at stake is: How do you punish an errant chief justice? The Constitution secured the independence of the judiciary by making it nearly impossible to act against judges. The question is: Do you want to lower that protection? On the one hand the implicit claim is that as it is the government is finding it easy to influence the judiciary. Will giving the government more role in appointing judges or disciplining them weaken or strengthen judicial independence? So the dilemma will be this. The judiciary s spectacular own-goal will increase calls for new mechanisms of accountability. But will those new mechanisms weaken or strengthen judicial independence? The political thrust of the current crisis and the punitive mood within the judiciary will increase the likelihood of reform that will threaten independence. Can the judiciary recover? If Dipak Misra as an act of statesmanship addresses the fact that he has lost the confidence of the collegium and finds ways to recover it perhaps. But this is unlikely. Taking charges the logical conclusion will be difficult. If they don t follow through then the whole drama becomes a saga of pressure tactics intrigue and innuendo. The future does not look good. The usual Indian solution will be to sit out the crisis. The only silver lining is that in a year with so many important cases the judiciary can redeem itself by the cogency of its reasoning and display its integrity. This first appeared in print under the headline A chance to reform . The writer is vice-chancellor of Ashoka University. Views are personal For all the latest Opinion News download Indian Express App More Related News Supreme Court crisis: Back to work but not back to business as usual Coal scam probe against CBI director Ranjit Sinha slow says Supreme Court Tags: Dipak Misra supreme court rishiJan 16 2018 at 12:52 am who grabs the headlines is the issue.......as evident from the way congressi and cpi scavengers along with other bankrupt members of the opposition pounced on the muck thrown by the four scoundrels of the judiciary! Time shall tell who the billion-plus well-wishers of the Nation make accountable for the joke played on the Indian tax-payer who pays for the high s-a-laries and l-u-x-urious perks of the judges . To my understanding it was at best an anti-NDA rhetoric as all that transpired before during and after the media address by the four scoundrels points to....there was certainly NO JUDICIAL CRISIS of the magnitude it was made out to be by the four scoundrels......it was a creation to provide headlines to the opposition against the current dispensation.....and to that extent it succeeded in its purpose so far.....it is for the NDA to respond with the same degree of toughness that it showed against corruption....this is a case of indiscipline and fooling the people !(1)(4) ReplyrishiJan 16 2018 at 1:47 amraghuram rajan was rightly shown the door when he digressed into tolerance-intolerance politics....we need to see what punishment is meted to these four scoundrels for openly indulging in anti-NDA rhetorics under cover of imagined judicial crisis where there wqas none as evident from the swiftness with which the reconciliation came and the the matter of so-called judicial crisis was brushed under the carpet....all within 72hrs and without a whimper but from the bankrupt opposition scavengers who did pounce on the unpardonable practical-joke played by the four scoundrels on the tax-payers of the Nation.(9)(4) Reply Indian BharatJan 16 2018 at 12:23 amThis shameless corrupt culprit CJI Depak Mishra should step down because of whom all this happen. He was not following SC system and passing case to lower bench of his chella to get decision in favour of his political aka. All the cases refer by him should reinvestigate and clean correct judgement should come out. If found gulti CJI should be behind bar for his role. Jai Hind(3)(2) Reply Gulabchand ShahJan 15 2018 at 11:33 pmThe Indian Judiciary has been in crisis for at least 30 years given that crores of people are in jail awaiting trial by the courts yet people like the twice convicted Lalu Yadav can very easily get bail to enjoy his loot of crores of rupees.(7)(0) ReplyRajendra BabuJan 16 2018 at 12:07 amAgree with you. Worst is Amit Shah was on bail and has now been let so easily.(5)(2) Reply gopal vaidyaJan 15 2018 at 10:22 pmThe judiciary is riddled with nepotism (many judges are children of previous judges or of members of the bar council). The quality of judgments is low - witness the number of judgments that conflict with each other. Same cases aren t heard for years - others are heard on a day notice and then reheard multiple times within a week. Judges are so political that they are encourage PILs to issue threats (a previous CJI did it openly). The judicial prin ls of standing and conflict-of-interest have long been ignored - mostly to allow judges to overreach. There is no mechanism for enforcing judicial discipline and the criterion for appointment is totally opaque. The current crisis shows us how external dysfunction is related to internal problems. Our intelligentsia including this author appear to be blind to the external dysfunction. How can they suggest an solution without even considering the external manifestation of an insttution that has failed totally.(8)(0) Reply Annu ChopraJan 15 2018 at 10:13 pmDEMOCRACY WAS NOT IN DANGER WHEN RAHUL GANDHI S G MOTHER IMPOSED EMERGENCY IN 1975 While lakhs of hindus have been butchered by muslims over the centuries while Sohrabuddin Sheikh was involved in extortion murders terrorism indians are bent upon hindus for his death in an encounter fake or otherwise. No justice has ever been sought by the same secular gang for hindu pilgrims roasted alive in godhra.The way things are going on soon India will become an Islamic state. Looks like likes of khilji aurangjeb etc. have left behind their admirer seculars to carry on their unfinished agenda What about thousands of sikhs murdered by Congress agents?(5)(10) ReplyRajendra BabuJan 16 2018 at 12:11 amBig Joke. Ha Ha Ha. That is the trust and faith in Indian Army you have. Sad(1)(1) Reply Load More Comments New Delhi: The Supreme Court will tomorrow hear a plea seeking an independent investigation into the death of special CBI judge BH Loya who was hearing the Sohrabuddin Sheikh encounter case.A bench comprising Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud today took note of the submission seeking urgent hearing on the plea for an investigation into Mr Loya s death on December 1 2014.The plea was filed by Maharashtra-based journalist BR Lone. He submitted that a fair investigation was needed into the mysterious death of  https://www.gutefrage.net/nutzer/kkamazon judge BH Loya who was hearing the sensitive Sohrabuddin encounter case in which various police officers and BJP president Amit Shah were named.Mr Loya died of a cardiac arrest in Nagpur on December 1 2014 when he had gone to attend the wedding of a colleague s daughter.The issue came under the spotlight in November last year after media reports quoting his sister fuelled suspicion about the circumstances surrounding his death and its link to the Sohrabuddin case.A total of 23 accused including police personnel are facing trial for their involvement in the alleged fake encounter of Sohrabuddin Shaikh his wife Kausar Bi and their associate Tulsidas Prajapati in Gujarat in November 2005. CommentsClose X The case was later transferred to CBI and the trial was shifted to Mumbai.A PIL seeking investigation into the judge s death was also filed before the Bombay High Court on January 8 by the Bombay Lawyers Association. One of the main triggers for the events on Friday at the Supreme Court was the issue of the assignment of the Judge Loya case. Some background. Judge BH Loya was a CBI Special Sessions Judge who was hearing the Sohrabuddin Sheikh fake encounter case. One of the main accused in this case was BJP President and now Rajya Sabha MP Amit Shah. Amit Shah was discharged in the case but not by Judge Loya. He was discharged by another judge as Loya died during the pendency of the trial. The Supreme Court had directed that the judge hearing the matter should not be transferred. The Caravan had reported that the death of Loya happened under suspicious circumstances and that it warranted an investigation. The news magazine also raised questions about the conduct of the then Chief Justice of the High Court at Bombay Justice (Retired) Mohit Shah. Though these allegations came out many years after the death of Judge Loya senior retired members of the high judiciary demanded an inquiry post the article was published. File image of Judge BH Loya. Image courtesy: Facebook Now any court possessing writ jurisdiction is empowered to order the inquiry. Both the Supreme Court as well as the high courts are empowered under the Constitution to hear and entertain public interest litigations into causes such as this. The question though is one of protocol and propriety. Which would be the ideal forum to hear and supervise an inquiry into the death of a member of the lower judiciary a sessions judge in this case? Both the high courts and the Supreme Court are creatures of one Constitution. They both however exercise their jurisdictions in very different spheres. A high court possesses a power the Supreme Court does not. And that is the power of superintendence ie the power to supervise the functioning of courts that are within its territorial jurisdiction. A high court is an ultimate court in a state or states that are within its jurisdiction. It can be both an original as well as an appellate court both in criminal and civil matters. Though there are no longer trials before a high court in criminal matters (except under special laws) despite the fact that the procedural law envisages them a high court s power of superintendence is not one that is found with the Supreme Court. The Supreme Court doesn t supervise the high courts in India. Even though the high courts are bound by the Supreme Court s rulings on law the Supreme Court can only hear appeals. It cannot revise procedural rulings or interim orders of a high court. The natural forum therefore to entertain a petition or to conduct such an inquiry is the high court that had the superintendence of the court which the judge presided over in this case it s the Bombay High Court. The Bombay High Court had taken up a matter filed by the Bombay Lawyers Association seeking an inquiry into the death of Judge Loya. This matter was mentioned before a division bench of the high court and it had decided to take the matter up on 23 January. Since this question was pending before the high court it meant the high court was seized of the matter. Once the high court is seized of the matter the Supreme Court cannot and should not have entertained it. In fact when the matter was taken up on 12 January there were objections at the Bar of the Supreme Court raising this very point. Dushyant Dave representing the Bombay Lawyers Association said The Bombay High Court is seized of the matter and in my opinion the Supreme Court should not hear this matter. If the court goes ahead with the hearing it may have implications before the high court. The Supreme Court said it would examine the objection when it hears the matter. But this raises a serious issue of propriety once more. The Supreme Court should have let the Bombay High Court finish hearing the matter before it took up the matter on appeal. Since the Bombay High Court was already hearing this matter there was no need to take this unprecedented step of hearing the same matter. A high court is bound by a decision of the Supreme Court. If the Supreme Court decides first a high court cannot pass final judgement. Now that the Supreme Court is seized of the matter the high court cannot in the interest of propriety go ahead and hear it. Though in law it can. What the Supreme Court has essentially done is issue a de facto prohibition to the Bombay High Court from hearing the matter at all for now. This is exercising superintendence over a high court a power the Supreme Court does not have. This may be why the four judges took that unprecedented step. The matter was listed when it should have ideally been not-listed till the Bombay High Court had decided on the matter. That s not all though. Not only was the matter listed in the Supreme Court it was also heard and de-facto superintendence was exercised. And that too in a case that may have implications for a sitting Rajya Sabha MP and the President of the ruling party in power. It raises serious questions of propriety. Institutions are about how they project themselves. The whole idea of propriety is not just about doing the right thing but also about doing it in a manner that it appears to everyone that you are doing the right thing. It must be beyond doubt and leave no room for baseless speculation. The actions of India s top court must be such that they are beyond such doubts. This is perhaps the point the four judges were trying to make when they went public with their letter about case allocations. The Supreme Court hearing the Judge Loya case when the Bombay High Court is seized is something that is not proper. But it happened nonetheless. Only time will tell us if the country is richer or poorer for it. By: PTI | New Delhi | Published: January 10 2018 7:23 pm Chief Justice of India Justice Dipak Misra (Express Photo by Tashi Tobgyal/Files) Related News Medical Council of India bribery scam: Prashant Bhushan sends transcripts to four rebel plus Justice Sikri says probe CJIFour judges who criticised CJI Dipak Misra not on Bench that will hear 7 key mattersSupreme Court crisis: Back to work but not back to business as usualChief Justice of India (CJI) Dipak Misra today recused himself from hearing the pleas of Karti Chidambaram son of former Union Minister P Chidambaram and two firms challenging Enforcement Directorate s decision to provisionally attach their properties in connection with a money-laundering probe in the Aircel-Maxis deal case. The CJI who was presiding the bench comprising Justices A M Khanwilkar and D Y Chandrachud said he as the Chief Justice of the Delhi High Court had heard the case pertaining to 2G spectrum allocation and hence would not like to hear the instant petitions. I have heard the 2G case in Delhi High Court the CJI said. The bench said another bench headed by Justice Arun Mishra which is already seized of a similar case would hear the present matters. Senior advocate Anand Grover who was appointed by the apex court as special prosecutor in the 2G cases and was representing the ED told the bench that a similar matter was listed on January 16 before the bench headed by Justice Mishra. Karti and two companies including Advantage Strategic Consulting Private Ltd (ASCPL) have challenged the ED s decision to provisionally attach their assets under the Prevention of Money Laundering Act in connection with alleged proceeds of crime in the Aircel-Maxis deal. The probe agency on September 25 last year had attached assets worth Rs 1.16 crore of Karti and a firm allegedly linked to him in connection with the probe in the Aircel-Maxis deal case. A provisional attachment order signed by Joint Director and investigating officer of the 2G spectrum allocation cases Rajeshwar Singh was issued under the PMLA for attaching the assets. The case pertains to the Foreign Investment Promotion Board (FIPB) approval granted in 2006 by P Chidambaram with the agency saying it was probing the circumstances of said FIPB approval granted by the then finance minister . The agency had said FIPB approval in the Aircel-Maxis FDI case was granted in March 2006 by the then finance minister even though he was competent to accord approval on project proposals only up to Rs 600 crore and beyond that it required the approval of the Cabinet Committee on Economic Affairs (CCEA). In the instant case the approval for FDI of 800 million USD (over Rs 3 500 crore) was sought. Hence CCEA was competent to grant approval. However approval was not obtained from CCEA it had alleged. It had also said a payment of Rs 26 lakh was made by Aircel Televentures Limited to ASCPL the firm allegedly linked to Karti within a few days of the FIPB approval. The agency is probing the Aircel-Maxis deal under the PMLA after taking cognisance of a 2011 CBI FIR in the case. For all the latest India News download Indian Express App More Related News Supreme Court refuses to take note of lawyer s plea on four judges presser Business as usual in Supreme Court today no move by CJI Dipak Misra so far to reach out to the four Justices Tags: 2G spectrum case Aircel Maxis deal Dipak Misra No Comments.