Kalikho Pul, Judge Loya and Why the Four Senior Judges Were Right

Read an exclusive excerpt from Arun Shourie’s new book on why the four SC judges had no alternative but to go public

Arun Shourie and his new book, Anita Gets Bail

(Photo: Harsh Sahani/The Quint)

Arun Shourie’s new book Anita Gets Bail, published by Harper Collins India, is an insightful examination of the numerous problems that plague our courts and justice system. To make his arguments, Shourie, a former Union minister in the Atal Bihari Vajpayee government and a veteran journalist, has used the most pertinent examples – whether from his own or his family’s personal experience (from where the book derives its name) to some of the biggest cases in India, including a lucid review of the miscalculations in the former Tamil Nadu chief minister J Jayalalithaa case.

In one of the most fascinating chapters of the book, Shourie defends the actions of the four senior-most Supreme Court judges who expressed concerns over the functioning of the top court at an unprecedented press conference in January this year.

Countering those who have criticised the judges for having gone public, Shourie reveals how there had been blatant violations of well-established conventions for some time at the apex court, including the shoddy way the Kalikho Pul case was handled by former chief justice of India JS Khehar, and the way in which cases like Aadhaar or Judge Loya’s case were assigned to judges by the current CJI, Dipak Misra.

Read his superb analysis of why this was so serious, and why the failure of the CJI Misra to address their concerns left them with no option but to go public.

Chapter 7: Bane hain Ahlehavas Muddai Bhi Munsif Bhi...

In recent years, the conventions have got diluted. Perhaps the convention that has suffered the most is that of smaller benches adhering to what larger benches have held. Apart from some viewing themselves as ‘progressive’ and, therefore, having a duty, so to say, to change the direction of rulings, there is by now such a plethora of judgments, and so many of the judges have been so prolix, that it has become easier and easier to find the passage one requires for buttressing the position one has set out to affirm. This has compounded uncertainty.

But in the last two years, mere uncertainty has given way to apprehension that a pattern is afoot. Sensitive case after sensitive case – in particular, cases in which the current rulers have had a stake – have come to be assigned to a bench headed by a particular judge. Cases that were part-heard have been taken away from a set of judges and reassigned to others, often they have been taken over by the Chief Justice himself.

Former CJI JS Khehar (left) and his current counterpart Dipak Misra under whose tenure the issue with allocation of cases has been pronounced.(Photo: Altered by The Quint)

Judges who had been hearing the case, and these cases again happened to be ones in which the current rulers had special interest—Justice Gogoi in the instance of the appointment of a director of the CBI, Justices Chelameswar and S.A. Bobde in the matter of Aadhaar—would suddenly find themselves pointedly excluded from the bench which would henceforth hear the part-heard case.

When, say, a bench of two judges felt that the issues in a case were so important that it ought to be heard by a larger bench, the larger bench would indeed be constituted but, in the face of well-settled convention, the new bench would exclude the judges who had been hearing the case.

Senior judges in particular came to be excluded from sensitive cases: the Sahara-Birla diaries case was assigned to a bench headed by Justice Arun Mishra overlooking ten benches that had judges who had more experience and seniority—this was a case about which the rulers were deeply apprehensive, for their names, along with those of several other prominent persons, figured as having received huge piles of monies; similarly, the Kalikho Pul case which we have encountered earlier was assigned to a bench overlooking eleven benches consisting of judges of higher seniority and experience.

Former Arunachal Pradesh Chief Minister Kalikho Pul(Photo: Harsh Sahani/The Quint)

Worse, senior judges began to be conspicuously excluded even from constitutional cases – Justice AP Shah, the former Chief Justice of the Delhi High Court, gave a telling example: Chief Justice Dipak Misra had constituted constitutional benches in seven cases; each of these was headed by himself, and not one of the four senior-most judges figured in any one of them.

As such occurrences became more and more frequent, an alarming breach, reminiscent of the Minerva Mills episode, occurred in a case. A lawyer, RP Luthra, filed a petition in the Supreme Court asserting that he had been deprived of his right to be appointed as a judge of the Supreme Court. He said that as the Memorandum of Procedure for the appointment of judges had not been finalized, all appointments that had been made in the preceding months were void. The case was assigned to two judges.

They rejected the claim of Luthra, but in the course of their judgment, they remarked that, indeed, the Memorandum of Procedure ought to be finalized without further delay. But the matter had already been settled by a Constitution Bench of the Supreme Court. After that judgment, there had been detailed discussions in the collegium of the five senior-most judges. Justice Chelameswar and his senior colleagues wrote to the Chief Justice about this peculiar observation by the two judges to whom he had assigned Luthra’s case.

Seven months have passed since the procedure that was finalized was sent to government, they pointed out. Its silence must be construed as consent, and the court must proceed on this basis.

No genius was required to see that the observation that had fallen from the two judges would be grabbed by the rulers to proclaim that, on the saying of the Supreme Court itself, the Memorandum of Procedure had not been finalized. The question would be reopened and the rulers would try a second time within two years to wrest a larger say in the selection of judges.

Two months passed and there was no response from the Chief Justice.

And then the case of Judge Loya’s death in which, as we have seen, the rulers were not just apprehensive, they were mortally apprehensive, was also assigned to Justice Arun Mishra, bypassing all the seniors: he may have been the most upright of judges but his family’s proximity to the ruling party was well known and, on the incessantly repeated maxim that justice must not only be done but be seen to be done, this seemed just too much to disregard as a mere coincidence. The deflection of this case became the last straw.

Judge BH Loya.(Photo: Altered by The Quint)

The judges were confronted by what Gandhiji used to call ‘an intolerable wrong’. They had tried other methods: they had written to the Chief Justice, they had met him. To no consequence. They were left with no alternative: they made known their misgivings to the people.

As this book goes to press, a small change has been made: the registry has put up on the Supreme Court website the list setting out which judges will hear cases relating to which subject. But clearly it is but a small change.

No institutional mechanism for assigning cases has been put in place: the four judges had suggested that a committee of the Chief Justice and of those who are in line to be Chief Justices decide the benches – nothing like that has been instituted. The prerogative has been retained solely in the hands of the Chief Justice. The assignments of subjects to specified judges is ‘till further orders’. Furthermore, the order is to apply only to future cases.

(From L-R) Justices Kurian Joseph, Jasti Chelameswar, Ranjan Gogoi and Madan B Lokur at the press conference on 12 January 2018.(Photo: IANS)

And, most significantly, all cases originating from PILs, all cases relating to elections and all cases relating to the appointment of constitutional functionaries—that is, precisely all cases in which the current rulers are most liable to have a stake—have been retained by the Chief Justice.

The optimistic feel that the change is but the first step, that the Chief Justice will see the gravity of the matter and will eventually put in place institutional mechanisms. Others go by the record thus far—including the record of the executive.

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