Parliamentarian | Crisis Of Justice | Rise And Fall Of The Indian Judicial System

Crisis Of
Justice
Rise And Fall Of The
Indian Judicial System
ktstulsi | Rajeev Dhavan |alam srinivas | sankar ray
ParsaVenkateshwar Rao Jr | G Ulaganathan
geeta singh |virag gupta | Chandrani Banerjee
Also inside : Interviewwith Kapil Sibal
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MARCH2018
RNI No.: DELENG/2014/56253 Postal Registration No.: DL(S)-17/3519/2017-19 Registered Post at Lodi Road HPO, New Delhi-110003.
Month: March 2018. Price: Rs. 100 Per Copy. Pages: 92 (with cover). Date of Publishing: 1st
of every month. Posted on: 3rd
& 4th
of Every Month.
MARCH 2018

3march 2018 l PARLIAMENTARIAN
T
he conundrum arising out of the
dramatic ‘Mann Ki Baat’ by the four top
judges of the Supreme Court against the
Chief Justice of India refuses to die down.
There have been issues in the judiciary earlier too,
but those had been kept under careful wraps. Never
has there been such an open confrontation that had
come out in the open.
There was a feeling, under which we Indians have
been living in denial. Till the January 12 press
conference, in which a letter sent by the four judges
to the CJI had been read out, there had been a sense
of assurance – delusional, as it now turns out – that
whichever political institution might have failed us,
we were still safe under the top judiciary. Despite all
the scams that have hit the Indian polity, we still
believed that the apex court would not let the Indian
people down. This, despite the fact that a few top
Supreme Court judges – even chief justices – had
been named for wrongdoing. But now it is just no
holds barred.
What is interesting is that like in all fields of
public significance, like in the control of the
academia, or the film industry’s
fermentation plate of the FTII, the
so-called board of film certification,
the control over one of the best
academic institutes, the Teen Murti
Library, and so forth, there is a
‘saline ingression’ which has
corroded the sanctity of these time-
honoured bodies. Such is also the
case with the highest portal of
justice. And that saline ingression is
the arm-twisting by saffron brigade,
which is now manifest everywhere.
The sudden quietude after the January 12 press
meet, which our Senior Editor Parsa Venkateshwar
Rao Jr has written on, headlined as “The Lull after
the Gale”, is worrisome. As one of the top legal
luminaries of the country, KTS Tulsi has written in
this edition, this is the threat of Hindutva-
controlled judiciary, and this will come out truly in
the apex court’s handling of the Ram Janambhoomi
land dispute. That judgement has the potential of
tearing the country asunder. Whether the apex
court will take that kind of a stand simply cannot be
predicted, nor does one have the right to assume
anything of the sort, but the potential is there.
As a media organisation we hold as supreme that
the court’s judgement cannot be predicted nor
commented upon. But senior lawyer Prashant
Bhushan’s comment recently that the goings on
stinks like a fish market gives us goose pimples.
It is perhaps in anticipation of this that the four
judges raised the question of apportioning of cases
by the CJI. From now, it will not be easy for anyone
to just turn on the saffron switch so easily.
Whether the four top judges have done this
calculatedly also cannot be said, for
they too have gone silent.
But we only hope and pray that
come what may, the judicial system
at every level stays in the public
interest and is not dented by any
power, red, saffron or otherwise.
The common Indian needs one
good parent, and here is hoping
that the Supreme Court stays that
way, Sire.
One Third Reich in a few
centuries is enough!
The fracas within the apex court has worried every Indian,
and we need the assurance of a stable, apolitical judiciary
Deep Craving
for Justice,
Milord!
T R I D I B R A M A NEDITORIAL
Follow me
We only hope and
pray that come
what may, the
judicial system at
every level stays in
the public interest
and is not dented
by any power of
any hue

4 PARLIAMENTARIAN l March 2018
The social and economic landscape as
seen from the table of the Chief Editor
EDITORIAL03
A platform for you to react to our
contents in the form of your letters
open forum8
Juicy incidents which don’t make it to
newspaper headlines and yet deserve reading
political buzz12
OveraperiodoftimetheSupremeCourthas
expandeditsroleandIndiansarepayingtheprice
the
expensi
ve
expansion
24
Despitebeingthemostpowerfulcourtintheworld,
thereisseethingangeramongtopIndianjudges
an
gst
under
blac
k
robes
18
A
seriesofjudgements,startingwiththeoneon
theArushimurdercase,hasworriedmany
cloa
k,da
gger
,conni
vance
...
30
A
scathingindictmentoftherulingpartyfrom
Kapil
Sibal,oneofIndia’stopmostlegalluminaries
“BJP
w
ants
to
sa
ffronise
ever
ythin
g”
36
TheIndianjudiciaryistodayplaguedwithproblems,
especiallygrosspoliticalinterference
the
crisis
of
justice
14
co
n
ten
ts
cover
story
front of
the book
cover illustration
DHIR
cover design
satyajit datta

subscription
question hour
The Nirav Modi scam shows that crony
capitalism is very much alive in the country
The South Bangalore MP is quiet, sobre but
has become immensely powerful
bank bombed
ananth kumar
72
80
Snapshots of those making news in the world of
sports and entertainment
news makers88
India is crucial in world affairs so there is no need to sulk,
and attacking the Canadian premier was not needed
last word90
Numerous films have been made in India
dealing with the court.Here is a pick...
Review
of a brilliant book byAbhinav
Chandrachud on democratic rights
co
urtrooms
in
cell
uloid
re
public
of
rhetoric46
86
The judiciary in the US is forcefully resisting
PresidentTrump’s right-wing pressures
america
unabas
hed
66
The‘master of the roster’ issue has literally roasted
the upper echelons of the judiciary
the
iss
ue
of
judicial
re
forms
40
09
10 PEOPLE l POWER l POLITICSwww.parliamentarian.in march 2018
cover
story
Renuka Puri captures many a scenario with her
imagination, and her lens is just an extension
a lady’s lens54
photo feature
backofthebook
Year-4 Issue - 3

Edited, Printed and Published by
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RNI. No. DELENG/2014/56253
Editor-in-Chief
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Open Forum
Letters to the Editor
anti modi?
Your magazine seems
to be a permanent Modi
baiter. In every article there is
serious criticism of Narendra
Modi. Having said that, I
would hasten to add that I do
not see any personal agenda
in your stance. What makes
me say that is all the articles
are fact-based and written by
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some of the best names. Alam
Srinivas has been lambasting
Modi’s economics regularly,
but he too deal with his
articles factually. Then, who
could think of even doubting
the credentials of an erudite
social worker such as Sandeep
Pandey, the name of whose
article on Swachh Bharat
Mission has been brilliantly
put as Sarvanash Bharat
Mission. I only hope that you
never lose your objectivity.
Kamla Das
Jharsuguda, Odisha
women deserting!
Inever realised that the
Bharatiya Janata Party’s
women voters are deserting
them in such large numbers.
Your report”The Bitter Half’
claims that more than 10
per cent of Modi’s women
voters dropped out in the
last state elections in Modi’s
own state Gujarat. Author
Reshme Sehgal argues that
they are feeling run up the
garden path on all fronts,
whether it be education for
the girl child, spurt in child
rapes, AADHAR failure, etc.
This is a dangerous trend for
BJP and Modi, for no party
can survive if the women
folk ditches it. Women are
powerful opinion makers at
home and outside, one should
not forget that.
Basanthi Nagarajan
Chennai
modi’s mania
Parsa Venkateshwar Rao’s
Governance piece on PM
Narendra Modi truly brings
out the megalomaniac in him.
Rao has correctly pointed out
that Modi wants to think big,
that he is a man who wants to
weild power and takes immense
pleasure in doing so, and
that this was clear in his huge
statement during the launch of
the Pradhan Mantri Jan Dhan
Yojana, about how insurance
companies had never before
issued 1.5 crore insurances in a
single day.
Dasrath Kumar
New Delhi
Hukum Singh
was an Indian
politician who served as
the Member of Parliament
from Kairana in Uttar
Pradesh. He belonged to
the Bharatiya Janata Party
(BJP). He was a member of
the Panel of Chairpersons
of the 16th Lok Sabha
and the Chairperson of
the Standing Committee
on Water Resources.
Shri Singh hailed from
the Gurjar community
(Chauhan). A seven-
time MLA from UP and
state ministers under
both BJP and Congress
governments, Singh had
entered the Lok Sabha for
the first time in 2014.
Obituaries
Chintaman
Vanaga was an
Indian politician from
Maharashtra and
was a member of the
Bharatiya Janata Party.
Mr. Wanga, a three-time
MP, was elected to the
Lok Sabha from Palghar
in Maharashtra. He was
a Member of the 11th
and the 13th Lok Sabha
as well. An advocate by
profession, he was the
Thane district president of
the BJP from 1990 to 1996.
He was a member of the
Parliamentary Standing
Committee on Rural
Development and the
Committee on Welfare of
SCs and STs.
(5 April 1938 – 3 February 2018) (01 June 1956 – 30 January 2018)
poignant!
The photo-feature in
the February 2018 issue
of Parliamentarian carried
some poignant pictures from
everyday life. They show the
common touch which is rare.
Mahima Singh
Patna, Bihar

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PEOPLE l POWER l POLITICS

lender in a timely fashion, which includes
principal and interest amount. No
change in this practice, or any other steps
in this regard, is under consideration of
the Government.
GST PLAGUING AYURVEDA
Query from UDIT RAJ
Has the Government received any
representation requesting to rectify the
anomalies in Goods and Services Tax
(GST) in fixing the tax slab for
Ayurveda and if so, the reaction of
Government thereon?
Reply from Shiv Pratap Shukla
MOS Ministry of Finance
Representations have been received
seeking reduction in the GST rates for
ayurvedic medicines. Considering the
same, the GST Council had
recommended reduction in GST rates
from 12% to 5% for Medicaments
(Ayurvedic, Unani, Siddha, Homeopathic
or Bio-Chemic systems), manufactured
exclusively in accordance with the
formulas described in the authoritative
books specified in the First Schedule to
the Drugs and Cosmetics Act, 1940 (23 of
1940) or Homeopathic Pharmacopoeia or
the German Homeopathic
Pharmacopoeia, as the case may be, and
sold under the name as specified in such
books or pharmacopoeia, which was
notified vide notification No.
34/2017-Central Tax (Rate), dated 13th
October, 2017.
CONSERVATION OF VELLAYANI LAKE
Query from SHASHI THAROOR
Has the ministry of Environment,
Forests and Climate Change received
any request from the State Government
of Kerala seeking funds and other
assistance for the conservation of the
SMALL BEING HIT
Query from PR SUNDARAM,
SUPRIYA SADANAND SULE
Is it true that small businessmen are
unable to get loans approved due to
their Credit Information Bureau (India)
Limited (CIBIL) negative reports for
defaulting a very small amount which
they have to pay? What is the number of
such defaulters whose applications for
loans have been rejected even after
repayment of their dues?
Reply from Arun jaitley
MINISTER OF FINANCE
Lenders exercise their commercial
judgement to grant loan or otherwise to
borrowers based on the Board-approved
policies of banks and financial
institutions (FIs). Information contained
in Credit Information Reports (CIRs)
obtained from Credit Information
Companies (CICs, which include
TransUnion CIBIL Limited, formerly
Credit Information Bureau (India)
Limited) is one of the factors in the credit
appraisal process. The decision to approve
or reject a loan is taken on a holistic basis,
taking into account all relevant factors
forming part of the credit appraisal
process, and not on the basis of CIRs
alone, and as such non-approval of loan
cannot be ascribed solely to defaults.
No information is maintained regarding
whether a customer has become a
defaulter knowingly or unknowingly. RBI
has directed CICs to provide access in
electronic format, upon request, one Free
Full Credit Report once in a year to
individuals whose credit history is
available with CICs. CICs only provide
CIRs and do not provide any defaulters
list. As per the reporting practice of Trans
Union CIBIL Limited, amount overdue is
displayed in CIR and indicates the total
amount that has not been paid to the
Vellayani Lake? Has the Ministry
written to the State Government of
Kerala offering assistance to conserve
the lake; and
Reply from Dr Mahesh Sharma
MOS, ENVIRONMENT, FOREST
AND CLIMATE CHANGE
The Ministry has been supplementing
efforts of the States & Union Territories
under the scheme of National Plan for
Conservation of Aquatic Eco-systems
(NPCA) for conservation of identified
lakes and wetlands in the country on cost
sharing basis between the Central and
State Governments. No proposal has
been received for conservation of
Vellayani Lake in Kerala under the
scheme of NPCA.
GENETIC DISEASES
Query from SUNIL KUMAR
SINGH, VINOD KUMAR
BOIANAPALLI
Is a large number of people in India
suffering from rare genetic diseases,
including Sickle Cell Anaemia and
Thalassemia especially in tribal areas
and if so, the details thereof along with
the number of people suffering from
rare genetic diseases in the country;
and is it true that the diagnosis rate of
genetic diseases is extremely low?
Reply from JP Nadda
Minister of Health and
Family Welfare
An estimated number of 1,20,000 to
1,50,000 patients are affected by Sickle
Cell Disease in India with 20-35% carrier
rate in tribals and other backward
communities. The estimated number of
beta Thalassemia cases is 1,00,000 to
1,20,000 with a carrier rate of 3-4% in
overall population. Diagnosis facilities
are available for screening, control and
management of Hemoglobinopathies
(Thalassemia, Sickle Cell disease)
disorders. However, no study has been
conducted on the diagnosis rate of other
rare diseases in India. International data
indicates that diagnosis of a rare disease
may take upto several years. According
to a recent report, it takes patients in the
United States (USA) an average of 7.6
years and patients in United Kingdom
(UK) an average of 5.6 years to receive an
accurate diagnosis. A majority of rare
diseases are inherited diseases and not
QUESTION Hour

entities who are trading and
encouraging acceptance of such crypto
currencies, if so, the details thereof and
if not, the reasons thereof?
Reply from Pon.
Radhakrishnan
MOS, MINISTRY OF FINANCE
The Government is studying the role of
operators dealing with trading in crypto
currencies/crypto assets. The
Government, in a statement issued on
December 29, 2017, cautioned people
against the risks of investing in virtual
currencies. The Reserve Bank of India
has cautioned the users, holders and
traders of Virtual Currencies vide their
Press Release dated December 24, 2013,
February 1, 2017 and December 5, 2017,
about the potential financial,
operational, legal, customer protection
and security related risks.
KHAP PANCHAYATS
Query from SAUGATA ROY
Is the Government aware of the
serious punishments awarded by
Khap panchayats in various parts of
the country? Has the Supreme Court
has asked the Government to take
strict action in this regard? If so, the
details of the action taken during the
last three years. Is there any proposal
to ban Khap panchayats in the
country; and
Reply from Hansraj
Gangaram Ahir
MOS, HOME AFFAIRS
The Hon’ble Supreme Court has issued
directives, condemning Khap
Panchayats and Honour Killings in
Arumugam Servai versus State of Tamil
Nadu (Criminal Appeal No. 958 of
2011) dated 19th April 2011 and in
BhagwanDass Vs State (NCT) of Delhi
(Criminal Appeal No. 1117 of 2011 @
SLP (Crl )No. 1208 of 2011) dated 9th
May 2011.
As such law and order is a state subject,
but the ministry of Home Affairs has
issued a detailed advisory on crime
against women dated 4th Sept., 2009, to
all the State Union Territory
Governments wherein the States have
been directed to conduct a
comprehensive review of the
effectiveness of its law and order
machinery in tackling the problem of
violence against women and to take
appropriate measures aimed at
increasing its responsiveness to such
violence. The advisory specifically
dwells on the need to take special steps
to curb the ‘Violation of Women’s
Rights by so called Honour Killings, to
prevent forced marriage in some
northern States, and other forms of
Violence’.
QUESTION Hour
www.newsz.in
News Means NEWSZ
treatable by vaccine. Also no vaccines
are currently available for treatment of
rare diseases. Some diseases like Sickle
Cell anemia may be benefitted by
pneumococcal vaccine in addition to the
vaccines routinely recommended. These
vaccines are provided free of cost by the
States.
The Ministry of Health and Family
Welfare has also formulated a National
Policy for treatment of Rare Diseases in
India to progressively build India’s
capacity to respond comprehensively to
rare diseases.
BITTER BITCOIN
Query from KIRIT SOMAIYA
Is the Government is aware about the
role of the operators dealing with
virtual currencies Bitcoin in the
country? Has the Government received
list of major entities and parties who
are facilitating Bitcoin trading? Does
the Government propose to take
corrective and legal action against the

Political
Buzz
Rahul’s
Rahagiri
Congress President Rahul
Gandhiappears to have changed.
Where once he was a loner in the
Central Hall, today he enjoys the
undivided attention of journalists.
In the recent past when Rahul
was surrounded by a crowd of his
favourite journalists, he could be
heard boasting of the Gujarat victory
and how he stumped the Modi-Shah
illustrations:dineshpatel
BJP’s ally-hunt
Aweek ago, there was a gathering
of BJP heavyweight leaders at
Union Home Minister Nitin Gadkari’s
residence on Motilal Nehru Road, New
Delhi. Trusted sources say that Amit
Shah himself was present to attend this
very important meeting. Apart from
Shah, Rajnath Singh and Arun Jaitley
were gracing the occasion. Sources say
that the meeting was convened to seek
solutions to the issues facing the BJP’s
grassroots activists; to what extent the
organisational changes should be made
Naidu’s diktat
Recently, the atmosphere of
the Upper House was heated.
Trinamool Congress was furious, while
Telugu Desam Party too had notified
regarding the Andhra Package. As
soon as the speaker, Venkaiah Naidu
entered the House at 11 am, sensing the
upcoming he adjourned the House till
2 pm. That way, both question hour and
zero hour were avoided. In reality there
is no tradition of adjourning the House
for more than one hour in a go. After
this, when Deputy Chairman Kurien
took over charge, Ghulam Nabi Azad
of the Congress said: “The House must
follow the rules.” On this, Kurien told
them to settle the issue with Naidu.
duo in the elections. In the course of
this interaction, he started discussing
the growing interference of the Sangh,
and then began to explain the future of
organisations like Sangh in a country
like India. In the meantime time,
Sonia Gandhi passing by saw Rahul
confidently talking to the journalists
and decided to join in. When Rahul
continued thrashing the Sangh with
his words, then his mother Sonia
interrupted him saying that we should
express our opinion, so why discuss
others? When his mother interrupted
him, Rahul quietened down for a
moment and stared at her and then
resumed talking. Sonia loved this new
confidence of her son.
Then Rahul questioned Rajdeep
Sardesai- “Who are you media people
afraid of? Why don’t you come upfront?
Why don’t you question the Rafael
Deal?” Here Rahul’s meeting concluded
and in the regular press briefing of at 4
O’clock, Randeep Surjewala raised the
issue of Rafael Deal.
in the party and how the achievements
of the Modi government should be
popularised among the public. Sources
reveal that Shah wanted to create a
work plan that would help shape PM
Modi’s agenda for adressing his MPs.
Attendance at the meeting was a must,
even for senior ministers.
Sources reveal that in this meeting
concerns were also expressed about
the changed roles of NDA ally parties.
In Bihar, Upendra Kushwaha is upset;
Om Prakash Raj in UP; Shivsena in
Maharashtra gets angry for the sake
of vote bank; Chandrababu Naidu in
Andhra wants a big package for the state;
the anger of the Akalis is understandable
that they’ve been allotted an ordinary
ministry which is not upto the mark.
During the Vajpayee ear, the number
of NDA constituents had reached 22.
But when it contested the elections, the
number of allies reduced down to mere
six. Now the same situation is once again
haunting the Modi aides. Those biggies
who were being cold-shouldered by the
Shah-en-Shah are also being considered
for opinions and suggestions. The
weather may have not changed, but the
wind has for sure changed its direction.

Yashwant
Sinha’s prime
ministerial
ambitions
The ways of politics are unique.
Even those in the political
wilderness do not lose their
ambitions. Take saffron rebel leader
Yashwant Sinha. In a bid to make
him the next PM, marathon meetings
are being held at Prithviraj Road-
situated residence of industrialist
and former MP Kamal Morarka.
Sources say, Yashwant Sinha, Morarka,
Shatrughan Sinha, former ambassador
KC Singh, former MP and journalist
Santosh Bharati and a few leaders of
Aam Aadmi Party participate in this
meeting.
Every evening,
the meet invites
all those who are
angry and dissatisfied with Modi and
Shah. Sources reveal that in a similar
meeting in recent past, a popular
rebel BJP MP also paticipated. The
MP had hoped that the nature of
the meeting would be very political,
but he was surprised to see that the
leaders were rather busy discussing
who will sponsor today’s food and
drinks on whom, etc. etc… Only
after the issue was settled, the actual
discussion took off!
Chandrababu’s
concerns
Andhra Pradesh Chief Minister
N. Chandrababu Naidu is
unhappy with the Modi government.
Since Vajpayee’s time, Naidu was
habituated to a big financial package
for the state, but the current Prime
‘Suitable’ PM
candidate #2
Let’s talk about PM Candidate
#2. These days, Sharad Yadav’s
meetings at his Lutyens Zone’s Tughlaq
Road-situated residence are in the
hots. And the stalwart putting Sharad
Yadav’s ambition into full throttle is his
Samajwadi partner and former MP Ali
Anwar. Anwar is without fail ringing up
the forgotten Samajwadis and inviting
them to Yadav’s residence. These leaders
are being told that “Sharad ji will talk
on the issues of farmers this evening,
kindly grace the occasion.” Sources say
that similar calls were made to some BJP
and JDU MPs, as well as a few senior
journalists. Through such meetings, the
preparations for Sharad Yadav’s Rajya
Sabha election are also being given wings.
Many new arguments are also being
fabricated in favour of Yadav as a suitable
PM candidate, for instance – Sharad
is the most suitable person to be PM,
because he also wears ‘dhoti’ like Atal
ji; He has a very good rapport with the
leaders of Opposition parties, so he can
be the face for a united-Opposition.
www.khabaria.com
Minister Modi keeps his views clear
in such cases. For the past few years,
Naidu was demanding that Andhra
be declared a backward state and
allotted a special package. But BJP’s
strategists are far more intelligent.
Sources reveal that they are internally
linked with Jagan Mohan Reddy, who
has more or less the same demand
as that of Chandrababu. The BJP
feels that for past some time, the
graph of Chandrababu’s popularity
in Andhra has dropped sharply. In
such a situation, if necessary, the BJP
can join hands with Jagan instead of
Chandrababu.

Crisis of
The Rise and Fall of the
Beyond the tornado created by the
unanticipated and almost unthinkable
press conference by Supreme Court’s four
top judges against the Chief Justice of
India, the sudden quietude suggests a war
within between the Left and the Right in
the Indian judicial system
crisisjudiciary

Justice
Indian Judicial System

A
senior Supreme Court lawyer,
in a casual conversation nearly
a month after the
unprecedented press
conference on January 12, 2018 by
Supreme Court Justices J. Chelameswar,
Ranjan Gogoi, Madan B Lokur and Kurien
Joseph airing their unhappiness with the
way senior judges were overlooked in the
allotment of important cases, said that (the
press conference) was an old story.
She said that what they (the four senior
judges) did was right and implied that they
had committed no sacrilege, and that it
was good that they came out and spoke up.
But the matter of the rebellion of the
judges was over, she said. What mattered
now was the right-wing tilt of the Supreme
Court judges, which threatens the liberal
values of the constitutional system.
As a matter of fact, the heart of the
matter is the perceived right-wing tilt of
the Supreme Court and the judges’
rebellion was incidental. In more explicit
terms, the fear of the liberals is that the
judges are delivering judgments that
favour the right-wing BJP-led NDA
government of Prime Minister Narendra
Modi. Two cases pending before the court
are cause for concern. The first is the
Public Interest Litigation (PIL) regarding
the death of CBI court judge BH Loya on
December 1, 2014.
The case was allotted to Judges Arun
Mishra and Shantana Gouder. After the
press conference of January 12, Justice
Mishra on January 16 asked the case be put
up before the “appropriate bench”. And on
February 1, Chief Justice Dipak Misra
made the roster system public and
specified the kind of cases that each of the
judges would deal with.
He has kept to himself all matters
arising out of Public Interest Litigation
(PIL). The Supreme Court bench
comprising Chief Justice Dipak Misra,
Justices DY Chandrachud and AM
Khanwilkar have made it clear that the
court will only deal with the causes of the
death of Judge Loya and it would not be
concerned with issues involved in the
Sohrabuddin fake encounter case. The
petitioners contend that there is a crucial
connection between the issues involved in
the Sohrabuddin case and the death of
Judge Loya.
The second issue is the appeal in the
Babri-Masjid-Ramjanambhoomi case
againstthe2010judgmentoftheAllahabad
High Court. There is apprehension that the
Supreme Court under Chief Justice Misra
might deliver a verdict that would favour
the Modi government. The Supreme Court
bench said that the case would not be
treated as a matter of inter-faith contest
but as a land dispute.
Politics and Camouflage
The clarifications of the Supreme Court in
the Loya and Ayodhya cases indicate that
these are being treated in purely legal
terms and that the politics surrounding
them will not be allowed to intrude into
the court. But it is the politics of these
cases, however extraneous they may be to
their judicial merits and intricacies, that
steal the limelight and dominate
discussions and perceptions.
There are three interesting, intersecting
views of the tremors caused by the January
12 press conference which is now being
sought to be dismissed as of no serious
consequence. The first is that there is
serious trouble at the top in the Supreme
Court and that personality clashes
between the judges reveal that there are
not enough rules and conventions for the
running of the Supreme Court, and it leads
to the Chief Justice of the day asserting
more power than he really should. The
second view is that the protesting judges
were really objecting to the court
kowtowing to the Modi government
because of ideological affinities. The third
is that there is an ideological conflict
between the dissenting judges and the
chief justice. It really boils down to a clash
between Chief Justice Mishra and other
spotlight
The shaking event of the four
top judges of Supreme Court
castigating the CJI is past
Currently, the fear is that the
SC is being manipulated by
Hindutva forces
The two top cases involve the
death of Justice Loya and the
Babari Masjid demolition
In both, the Supreme Court
seems to suggest it will deal
with only legalities
Parsa Venkateshwar Rao Jr
Parsa Venkateshwar Rao Jr is a
Delhi-based journalist, who’s worked with
Indian Express in multiple editions, and
with DNA in Delhi. He has also written
for Deccan Herald, Times of India, Gulf
News (Dubai), Daily Star (Beirut) and
Today (Singapore). He is now a Senior
Editor with Parliamentarian
crisisjudiciary

judges like Justice Arun Mishra who is
seen to be favoured by the chief justice on
the one hand, and the four dissenting
judges on the other. The issue becomes a
little more complicated when observers
and critics infer that the chief justice is
seen to leaning towards the right-wing
ideology of the BJP, and that the four
conscientious objectors are liberals and
secularists. Chief Justice Misra was part of
the majority of the Constitution Bench
headed by then chief justice JS Khehar
which declared the National Judicial
Appointments Commission (NJAC) Act
to be unconstitutional because it infringed
upon the concept of the independence of
the judiciary, which is seen as one of the
basic features of the Constitution. Hence,
any constitutional amendment that
violates the basic structure is held to be
unconstitutional. And it was Justice
Chelameswar, who wrote the lone
dissenting judgment, upholding the
validity of the NJAC Act.
What gave rise to the apprehension that
Chief Justice Mishra was a right-winger
was the ruling he gave that all the cinema
halls should play the national anthem and
that it will help inculcate the spirit of
nationalism. But later, a Supreme Court
bench of which Chief Justice Mishra was
a member modified the order saying that
it was not mandatory to play the anthem.
Justice D.Y.Chandrachud of the same
bench had observed that it was not
necessary to wear patriotism on one’s
sleeve. At the conference of the Chief
Justices of High Courts in Delhi in
November, 2017, Chief Justice Mishra
ticked off Union Law Minister Ravi
Shankar Prasad saying that it is for the
judiciary to interpret the constitution,
even if that meant reviewing policy.
Collegium Conundrum
The court has not yielded ground on the
issue of the appointments of judges. As
pointed out by Supreme Court lawyer and
Congress politician Kapil Sibal in an
interview to Parliamentarian has pointed
to the instance of the government
rejecting the name of Uttarakhand Chief
Justice K.M.Joseph for the Supreme
Court. If the court were really leaning
towards the government of the day, then it
should have had no problem in getting its
recommendation through. There is then a
battle that is on between the government
and the judiciary, and Chief Justice Dipak
Mishra is indeed the face of the judiciary at
the moment.
There is an uneasy, brittle truce between
the government and the Supreme Court at
one level. At another level, there are
dissonances in the Supreme Court. The
January 12 press conference of the four
judges is a sign of the intra-court friction.
There is of course nothing momentous
either with the tautened relationship
between the judiciary and the executive, or
the stresses and strains among the judges
of the apex court.
What is surprising is there is no
redrawing of the dividing lines nor is there
any definitive redefining of roles.
A senior law officer speaking on
condition of anonymity felt that the
developments arising out of the press
conference as well as the foregrounding of
cases like that of the Ayodhya dispute or
that of the case concerning Judge Loya’s
death in suspicious circumstances have
been shaped by implicit political agendas of
all those involved, and that when things
come to the Supreme Court they are not
considered on the basis of intrinsic merits
but for political fallout.
it is the politics
of the loya
and ayodhya
cases in the
supreme court
that steals the
limelight in
discussions

lawyersjudiciary

ANGST UNDER
BLACK
ROBES
For all their immense powers, the men who man the
Indian judiciary are an unhappy lot, partly because of
political interference, partly because of burdening itself
with silly things, and now a head-on has come about

C
reated by the British, India’s
judiciary is over two centuries
old, with several High Courts
being born in 1861, the
antecedents going back to an earlier time.
Why did Indians flock to British Indian
Courts for just about everything – as,
indeed, they still do – and create a huge
backlog till High Court level? This backlog
is not new. The George Rankin Committee
reported massive arrears way back in 1924.
Today the position is worse: the present
backlog in lower courts in India is 2 to 3
crores. The situation is endemic. It arises
because if in any one year institution of
cases is greater than disposal in that year,
the cumulative effect is that each year’s
arrears are added to the next. The problem
of arrears will never be resolved. So why
do Indian people file in India’s Courts
when they know justice may transcend
into old age and death? The funny thing
is that disputes were not just about land.
The nineteenth century analysis of civil
and criminal disputes is fascinating.
British Indian Courts were adopted by
Indians despite the frustration of corrupt
lawyers, the process and indeterminacy.
There are traditional and quasi-legal
avenues of settlement like lok adalat. But
there is a culture not of conciliation but
anger with determination – as litigants
threaten to go “right up to the Supreme
Court”. India’s litigation habits will
continue. The kala coat persists as the faith
in judicial decisions remains.
Political Edge
The Constitution of India made a sea-
change in the empowerment of the Indian
High Courts and Supreme Court, which
unlike their predecessors, had the power
to challenge government decisions and
legislation. In other words, the equation
was soon projected as Courts versus
government. This was a dramatic turn in
Indian governance. My own research
shows that in the fifties and sixties
government legislation was struck down
in few cases. But the few cases made
controversy and history. Right from 1950,
the zamindar cases, for acquisitions and a
few censorship cases portrayed a new turn
of events. Nehru wanted the ancient
in a dramatic turn of events, the
equation was soon projected as courts
versus the government
Rajeev Dhavan
Rajeev Dhavan is a Senior Advocate, a
human rights activist, and a Commissioner
of the International Commission of Jurists.
He is the author or co-author of numerous
books on legal and human rights topics,
and is a regular columnist in the leading
newspapers in India
spotlight
Since British rule, Indians
have flocked to the courts for
just about everything
The Constitution made a sea-
change in the empowerment
of the Indian High Courts
Abolition of zamindari became
the political moment in India’s
judicial history
The SLP needs to be
terminated, but this remains,
as it is a source of ‘funding’
lawyersjudiciary

regime of princes, zamindars and rural
landlords to be abolished with niggardly
compensation. The High Court and
Supreme Court wanted a proper
compensation to be paid. The British paid
market value under the Land Acquisition
statutes for acquisitions. Why shouldn’t
Indian courts?
The challenge was: was the court with
Parliament or the zamindars. This was the
political moment in India’s judicial history.
The Supreme Court believed they were just
followers of the “rule of law”. Politicians
never believed this, portraying these
erring judges as anti-development, rooted
in un-Indian jurisprudence. So for the
entire period, 1950-1977, the courts did
massive work in all departments (civil,
criminal revenue or constitutional) but the
of 1996 (T.N. Godavarman) continues
even now. The two areas that affected
industry were especially forests and
mining. Even Cabinet Ministers were
pulled up for disturbing the environment.
But the political nexus of the mining,
timber and industrial lobby was
amazingly strong. In time, the Court
partly backed off; yet it continued with
the force of its own compulsions. A right
wing court replaced its left wing. Still the
Supreme Court felt it could do anything,
carrying the general public with them to
become the seat of opposition to
government.
The next concurrent phase of the
Court was targeting corruption such as
in the 2G and other cases. Corruption is
everywhere and nobody really cares
about low level corruption without
political mileage. From Bofors (1987) to
now, big corruption has unseated
governments. The Courts play a careful
hand. But they have acquired sufficient
support from the public. I was returning
from a case in Mumbai in 2009 and
showed my Supreme Court Identity card
at the airport. The police officer
examining it said “For the Supreme
fed up with their
judgements being
overturned, the
court has denied
this power of the
legislature
wanted “committed judges” to support her
and the regime. During the Emergency, the
judiciary buckled. Some judges even played
to Mrs. Gandhi’s ego during and after the
Emergency, and on her return to power in
1980.
New Judicial Weapon
The eminence of the Supreme Court in the
eyes of the public would have died due to
its atrocious failures in the Emergency, but
for the gang of four (Krishna Iyer, Bhagwati,
Chinnappa Reddy and Desai) – perhaps
with Chandrachud thrown in for good
measure, who relied on the banner of social
justice to open up the Court to letter
petitions and causes galore. The epistolary
petition to locate any public grievances
became unmanageable and died.
During the 1980s, and to some extent in
the 1990s, the Court was dramatic. They
decreed on bonded labour, cheap labour
and atrocities. But the symbolic effect of all
this was immense. India is a country of
unabated atrocity. The Bihar Blindings case
(1980) exposed much that was rotten.
The next target was environment which
affected “business” more directly. This has
continued till today. In 2018 the forest case
reputation ascribed to them was their
political reputation as anti- catalysts. Two
great controversies seized this period. The
first, zamindari, land and the
compensation cases. The second was the
“Amendment” controversies. The courts
got fed up with their judgements being
over-ruled and constrained Parliament’s
power to amend the Constitution. During
the Emergency (1975-77), Mrs. Gandhi’s
primary target (apart from reversing the
Election case against her) was to rein in the
judiciary. In the Rajya Sabha she declared
that some, not all, judges were bad like
Koka Subba Rao. No doubt some lawyers
who masterminded these cases, such as
Palkhivala, were bad even though she
prevailed on him to appear for her in her
Election case in pre-Emergency 1975. She
Justice Markandey Katju had once
ordered sea water to be made potable

Court we can even stop a plane”. Little do
theyknowoftheCourt’sinnerweaknesses!
The Court does many silly things
outside its domain: cleaning the Ganga,
connecting all the river basins, and in one
instance the ebullient Justice Katju, on his
own, ordered that sea-water be processed
into potable drinking water. It ventured
too far to rewrite police laws and is close
to capturing governance. The liquor
judgments of 2017 bear witness to the
Supreme Court’s arbitrarily self-
promoting views on drinking and
highways - contrary to all State laws
without examining them. A virulent
opponent of the judiciary Somnath
Chatterji, then Speaker of the Lok-Sabha,
used to give dinner parties to people (I
attended one) to reduce the intimations of
power of Supreme Court and High Court
judges.
But what cemented the Supreme
Court’s power was the huge support it got
from a new breed of social-politico lawyers
and groups (some funded from abroad)
who dominated the court’s direction. They
became the new brokers of power. Enough
research has not been done on how these
public interest gladiators found their place.
The Court itself grieved that some of this
litigation is “paisa interest litigation” and
“publicity interest litigation”.
Present Discontents
India’s higher judiciary, and especially the
Supreme Court, have become amazingly
powerful both in their social standing as
well as the width of their jurisdiction. The
Indian Supreme Court is the most
powerful in the world. It decides virtually
everything. It survives criticism against its
iconic presence. One primary discontent
is that it is flooded with arrears of cases.
Its methods of dealing with this are
primitive: Taking rent or land acquisition
cases, or service cases and dealing with
them in the manner of quick disposal
justice. But try as it might, it has not
managed this flood except by sloppy
justice. Yet the flood continues.
I do not think that it will ever be
resolved. The arrears of all cases in the
Supreme Court in 1950 was 690 out of
1037; in 2016, 79,244 filings; 36105
disposals and cumulative arrears of 62,537.
Of course, we divide this into admission
and regular cases. But the admissions take
30-40% of the Supreme Court’s time.
The biggest segment is that of the
Special Leave Petition (SLP). The only way
is to either abolish the SLP jurisdiction, or
deal with them by circulation without
court hearings. When I suggest this,
lawyersjudiciary
the indian supreme court is
the most powerful in the
world, for it decides virtually
everything or every issue

lawyers howl with protest because the SLP
is primary source of money fattened
lakhpatis and crorepatis. Supreme Court
judges are not too happy because they have
a declining faith in High Courts (where
most come from) and feel they must
examine all cases as if they are the sole
proprietors of justice. But the Supreme
Court, high courts less so, refuses to
examine any structural proposals for
reform. Second, the Supreme Court’s
funding depends on negotiations with
government. Earlier, I had worked on the
budgets of the Allahabad High Court and
Supreme Court to come to the conclusion
that our courts are the “least expensive
branch”. Alan Gledhill in 1964 had called
it the most successful nationalised
industry. That may well be so if we add
stamp fee to courts’ fee. The chief justices
are happy to look at its administration. In
many countries, court administration is
left to professionals.
Undisciplined Judges
The third discontent is that the High
Courts and the Supreme Court have no
effective way to discipline judges who
misbehave or are corrupt. The
constitutional criteria for impeachment
are “proven incapacity or misbehaviour”.
But that is to get rid of the judge by a
parliamentary process which has never
succeeded, but in some cases caused high
court judges to resign. There is no
procedure to discipline judges short of
removal. The in-house procedures of high
courts over district judges is arbitrary;
over themselves non-existent. The next
discontent is over appointments. One
aspect is elevating high court judges who
retire at 62 years to Supreme Court judges
who retire at 65 years. But the real tussle
for power is over judicial appointments.
Before 1982, this was done jointly by the
Executive and Supreme Court. In 1982,
1993, 1994 and 2016 the Supreme Court
wrested this power to themselves. The
attempt to appoint a National Judicial
Commission was mired with political
edge. The present system is faulty and
needs a proper National Judicial
Commission. At present the standards of
judicial appointment are weak and not
immune from influence and corruption.
There is a savage fight between government
and the Supreme Court over who should
be appointed. In this exercise, caste, power
and influence has been far from absent.
Will majoritarian Hindutva create a
Hindutva judiciary?
We cannot think of courts without
lawyers. Some of them are very good. But
there are too many lawyers chasing the El
Dorado of money. Lawyers are rarely
pulled up. At lower levels and high courts,
they are the most unruly in the world,
despite excellence higher up.
Judiciary’s Politics
I have given a potted review of the Supreme
Court showing that it has always been a
political institution – although its politics
is not democratic politics but institutional
politics for wise judges (many unwise) to
temper government. Such a polarity makes
for healthy constitutionalism by pinning
down and juxtaposing democratic (often
majoritarian) politics against the rule of
law (including social justice, on which the
Court is getting weaker). But the fear is
that parliamentary and political party
politics intimidates judicial independence.
Myfearisthattheevolving“Hinduized”
politics to destroy the secular democratic
framework is yet another battle that
scourges. Courts and lawyers are class-
driven for the well-off despite public
interest possibilities at the top. Just as in
many other constitutional and other
institutions of governance in post-colonial
governance, the Indian judiciary dwarfs
other judiciaries nearby. But a rule-of-law-
based social judiciary is needed for good
governance for all. There is a struggle
ahead to achieve this.
in the savage fight between government
and sc over appointments, issues of
caste and influence have been active

Expensive
The Supreme Court of India
has expanded its territorial
waters beyond that of
dealing with matters of law
to deal with political issues,
from environment activism
to a PIL against Aishwarya
Rai “marrying a tree’, to
issues of disinvestment
and socialism, causing a
damaging overload
overloadjudiciaryphoto:SAJJADHUSSAIN/AFP

Expansion

C
hief Justice Earl Warren of
the US Supreme Court at the end
of his career (1969) was asked,
“What was the most important
case of your tenure?” He did not say it was
the case that dealt with segregation in
schools; he did not say it was the right of
the attorney to remain silent. He said
Baker v. Carr. Why was this case so
important? It is perhaps so because it
created a boiling feud between the judges.
One judge suffered a nervous breakdown
and another landed up in hospital but this
case changed the course of US Supreme
Court forever.
The reason why we dwell upon this
from the US Supreme Court is the political
import of the case in the Indian context,
where political overlaps by the apex court
has created issues which have finally boiled
over in the recent temblor where four SC
judges practically rebelled against their
head, the Chief Justice of India.
Baker was a simple enough case with
regard to redrawing of boundaries of
electoral districts every 10 years. This, it
was claimed, was necessary on account of
vast disparities between the value of votes
of rural and urban voters. A Republican
voter, Charles Baker, claimed that he was
denied equal protection of laws because his
vote was devalued.
Relying on the doctrine of political
question, the defendant, Tennessee
Secretary of State, argued that the court
cannot provide remedy to this issue. Three
judges of the Middle District of Tennessee
Court dismissed the suit but the US
Supreme Court overruled the judgement
and held that citizen’s right to vote, free
from arbitrary impairment, was judicially
recognised and that denial of equal
protection presented a justified
constitutional cause of action, although
Justices John Harlan and Felix Frankfurter
dissented.
The above judgement of the US
Supreme Court resulted in streamlining
the doctrine of political question. It held
that the Court would withhold its opinion
on the following six issues –
• When the matter pertains to another
branch of government such as the power
of the President in foreign affairs;
• A lack of judicially manageable standard
for resolving the issue;
• Need for initial policy determination
which cannot be done by the court;
• A situation which would violate the
separation of powers framework;
• The need to strictly adhere to previous
political decision; or
• Tthe possibility of clash between
branches of government resulting in
embarrassment.
Indian Denial
As against the US Supreme Court adhering
to the position that courts could not
provide a remedy on these issues in view
the us supreme court laid down six
conditions when it will not handle a
case as a ‘political question’
kts tulsi
KTS Tulsi is an politician and a senior
advocate in the Supreme Court of India.
He has represented many notable people in
various significant cases
overloadjudiciary
spotlight
Unlike in the US, the Indian
Supreme Court didnt debar
itself from ‘political question’
It insisted that the Constitution
does not recognise anything
like a ‘political power’
This has led to an incessant
tussle between the Indian
judiciary and the legislature
Legislation has become so
burdensome that the SC now
says most PILs are bogus
courtesy:fkmahia.wordpress.com

of the political questions doctrine, the
Supreme Court of India has chosen to
chart its own course.
In a recent case dealing with the
promulgationofordinanceandsatisfaction
of the President, a 7-Judges Bench of the
Supreme Court of India in Krishna Kumar
Singh & Anr. v. State of Bihar & Ors.
(2017) 3 SCC 1 considered the
development regarding constitutional
mechanism with respect to the doctrine of
political question.
It referred to the earlier cases where it
has been laid down that political questions
were also liable to be tested as the
Constitution does not contemplate their
exclusion. In fact in A K Roy Vs. Union of
India (1982) 1 SCC 271 the Supreme
Court has held that there is nothing like a
political power under our Constitution.
It also held that the doctrine of political
question that was evolved in the US was
on the basis of the system of “rigid
separation of power, unlike ours”. It also
held that the express bar created in way of
judicial review of dissolution of Assemblies
has been consciously and deliberately
removed by the Parliament.
The Supreme Court went to the extent
of holding in the landmark Bommai case
that “…the refusal to interfere…would
amount to abdication…” It justified
interference in cases “involving fraud on
power or an abuse of power”. It further
elaborated that if the exercise of power is
based on extraneous grounds, interference
of the court may be warranted. Thus
gradually,allexecutivefunctionsincluding
the grant or refusal of mercy petitions have
been brought within the mandate of
judicial review and the doctrine of political
question has been thrown overboard.
PIL Paradigm
While it is not known whether there was
a deliberate link between the apex court
insisting on dwelling on the political
question and its inherent psyche to expand
its powers, eventually that is what
revolution.
In the second phase, PIL expanded
dramatically and involved issues of
environment, corruption, sexual
harassment, relocation of industries, rule
of law and good governance. By now, the
courts had become more assertive and
unconventional. They lay down
guidelines in areas of legislative gaps,
began monitoring criminal investigation
but at the same time, in the second phase,
the misuse of vast proportions was also
noticed. In this phase, the courts also took
to judicial legislation.
In the next century, came the third
phase. It came to be believed that anyone
can file any petition. A PIL was filed to
prevent the marriage of Aishwarya Rai to a
tree. The Supreme Court ventured into
disinvestment plan of the government, and
in one case of State of Punjab Vs. Devans
Modern Breweries opined that “socialism
might have been a catch word from
history…this view that the Indian society
is essentially wedded to socialism is
definitely withering away.”
The rise of PIL and growing activism has
made Supreme Court of India the most
powerful court in the world. The court has
interpreted the “due process” to be a part of
Article 21 of the Constitution in the Maneka
Gandhi case. While this case was a turning
point in the human rights jurisprudence,
in a recent case, a
seven judge bench
of the supreme
court considered
the development
on constitutional
mechanism
petitions related to the rights of the
disadvantaged sections of society. These
were child labourers, bonded labourers,
prisoners, mentally challenged, pavement
dwellers, women, etc.
In the first phase, the relief was mainly
sought against the Executive on the
ground that the action or non-action
amounted to breach of fundamental
rights. In this phase, the PIL sought to
bring about social transformation/
happened in the form of the PIL, or Public
Interest Litigation.
This expansion of the jurisdiction of the
constitutional courts (Supreme Court of
India and High Courts has been in three
phases. The first phase began in 1970 and
lasted till 1980, in which it concerned itself
mainly with the “subject matter” as the
focus of the PIL. At that time, journalists,
social activists, academicians and lawyers
filed most of the PILs and most of these

the fact is that the Constituent Assembly
had expressly rejected the due process
doctrine. The courts also created new
fundamental rights taking a cue from the
Directive Principles and established “basic
feature doctrine” creating implied limit on
power of the Parliament to amend the
Constitution.
PIL Plague
There has been positive as well as a dark
side to the PIL. On the positive side, it lent
constitutional protection to the
disadvantaged sections like prisoners,
destitute children, bonded labourers,
women, SC/STs amongst others. In that
sense, it heralded a social revolution, but
on the dark side, it increased the work load
on the Supreme Court and High Courts
tremendously.
This resulted in ever increasing
pendency and arrears which in turn
resulted in depriving justice to the people
whose cases had to wait for longer periods.
Prisoners remained stuck in prison,
landlords had to wait longer, officials
aggrieved by executive action became
worst victims as their causes lapsed.
Besides, it created friction and
confrontation with other organs of the
government when the courts entered upon
policy issues like privatisation,
disinvestment, advertisements on rocks,
pollution of rivers, relocation of industries
or even regulation of traffic and out of turn
allotments of government houses.
The courts took up cases of smoking in
public places, employment of children,
right to strike, right to health, right to
education, externment of wild monkeys,
nude pictures in newspapers, kissing of
Indian actress by Richard Gere and a PIL
against a stage show on the New Year Eve.
This brought into focus the nuisance of
PIL and inefficient use of limited judicial
resources. According to a critical review
of Surya Deva publication on Public
Interest Litigation in India, there has also
been criticism of PIL being used for
judicial populism. Justice Dwivedi in
Keshavananda Bharti case sounded a note
of caution saying that the Court is not
chosen by the people and is not responsible
to them in the sense in which the House
of the People is. It is also perceived as a
mere symbolic justice because a number
of government issues dealt with by the
judiciary have not resolved the problems.
Issues like sexual harassment,
procedure of arrest, right to life, right to
food, right to education, right to health &
shelter and a horde of social rights had not
changed the ground reality. On the other
side of the spectrum is the view that the
PIL has disturbed the constitutional
balance of power. Even if the Constitution
does not follow strict separation of powers,
it still embodies the doctrine of checks and
balances which should be respected by the
judiciary. Thus, the judiciary needs to
exercise self-restraint when it goes on to
legislate, settle political questions, take
over governance and monitor executive
agencies.
In a critical appraisal in his work, Fifty
Years of Supreme Court of India, Jain says
that, “PIL…should not encroach upon the
sphere reserved by the Constitution to the
executive and legislature.” Academicians
have also noted lack of consistency in the
application of PIL. In some cases, the court
wades into the policy issues whereas in
others, “it hid behind the shield of political
question”. The author gives the example of
sexual harassment, custodial torture and
adoption of children, where it intervened
and the cases of uniform civil code,
ragging, height of Narmada Dam, where
it refused to intervene.
Whether the expansion of the PIL
jurisprudence has led to greater
accountability of the legislature and
executive is also debatable. Also, in many
situations, the activist role of the court has
led to the Executive and the Legislature
taking a back seat and preferring to wait
for judicial intervention. Thus, it is
believed, that the overuse of PIL may have
diluted the original commitment where it
was meant to be confined to enforcing
human rights of the victimised
disadvantaged groups. In spite of the
court’s endeavour to prevent misuse of PIL
jurisdiction, a large number of PILs
continue to be filed daily. In fact, the
Supreme Court has itself on a number of
occasion expressed their frustration over
the over burdening of indian judiciary
has gone to a level that a pil was filed
to stop aishwarya ‘marrying’ a tree
overloadjudiciary

the misuse of PIL and has noted that 95%
of PILs are frivolous.
Overstepping & Arrears
All the problems with judiciary today arise
out of overuse of PIL on one hand and
delay in the disposal of cases on the other.
The appointment procedure has also
brought the court in conflict with the
Executive. The issue of appointment of
judges has been reduced to a tug of war by
both the sides.
The Supreme Court believes that the
power of selection must exclusively vest
with the Court as any outside influence
will adversely affect the independence of
judiciary. At the same time, no other
country follows a procedure of judges
appointing judges. The Supreme Court
itself is dissatisfied with the manner in
which the collegium has functioned.
This difference of opinion has led to an
unprecedented delay in appointment of
judges and the government continues to
arm-twist the judges by refusing to tow
their line. The root cause of the problem
behind the press conference of the four
senior most Judges of the Supreme Court
of India last month seems to be lack of any
institutional mechanism in dealing with
the complaint against judges.
In the UK, there is a clear cut judicial
complaint procedure which provides that
the Chief Executive will deal with the
complaint within a period of three
months. It provides that if the complaint
relates to the President of the Supreme
Court, then the Deputy President or the
senior most member of the Court deals
with the same after consulting the next
senior member. Notice of complaint is
given to the subject and formal action
begins with the report to the Lord
Chancellor. The Tribunal which deals with
the complaint is established by the Lord
Chief Justice of England and Wales, Lord
President of the Court of Session and Lord
Chief Justice of Northern Ireland. There
are two independent persons of high
standing also who are nominated by the
Chancellor. The member is informed of
full details, the Tribunal investigates and
makes a report, summarising the facts as
found, and deliver the report to the Lord
Chancellor. Whether the report is to be
published or not is decided by the
Chancellor.
A similar procedure was envisaged by
the earlier government at the Centre in
2013 through the Judicial Standards and
Accountability Bill, which provided for a
comprehensive mechanism for handling
complaints made by citizens on grounds
of alleged misbehaviour and incapacity
against judges of the Supreme Court and
high courts. However, the bill lapsed after
2014 General Elections. In December 2016,
responding to a question in the Lok Sabha,
the then Law Minister DV Sadananda
Gowda stated that “…the Judicial
Standards and Accountability Bill has
lapsed…we are working on it…decision
will be taken after taking suggestions from
stakeholders...”
Feet Dragging NDA
Until now, no step seems to have been
taken by the government in this regard.
On the contrary, in a reply to another
question asked by me in this respect in the
Rajya Sabha, the Minister of State for Law
& Justice, PP Chaudhary, stated on
09.02.2018 that “…as per two resolutions
adopted by the Supreme Court of India, in
its full Court meeting on 7th May, 1997…
any complaint against the Judges of
Supreme Court and High Courts are
handled as per the ‘in-house procedure...”
From the above reply it is apparent, that
the government seems to have jettisoned
any such exercise which can provide a
comprehensive mechanism to look into
the judicial complaints and replace the
NJAC Act with a better law to lay down a
transparent procedure for appointment of
judges to the constitutional courts. A
legislation in this regard, which passes
constitutional muster, should have at least
been introduced in three years after NJAC
Act was struck down by the Supreme
Court, but the aforesaid answer of the
Minister seems to suggest that the
government is against any such proposal.
After all, sky is the limit for Parliament to
evolve a different legislation with wider
consultations.
The dream of true democracy can be
realized only when we have efficient judges
free from fear and prejudices of power
centres, for which transparency in their
appointments through an independent
commission & their accountability
thereafter through a proper & efficient
grievance redressal forum is an urgent
need of the hour.
according to a critical review of the pil
system, it has been said it was used for
judicial populism in india

Cloak,
Dagger &
Connivance…
About 40 witnesses die in just one
single scam investigation running in the
courts… a double-murder in the family
of a ‘well connected’ doctor family goes
unresolved… the problem lies in crime
agencies’ purposely framing faulty cases
destroying evidencejudiciary

imaging:satyajitdatta

T
he Noida double murder case of
Arushi (Talwar) and her family’s
in-house domestic help, Hemraj,
refers to the unsolved murders of
the 14- year-old girl and 45-year-old
Hemraj Banjade. This was by the family of
doctors Nupur and Rajesh Talwar, in
Noida. Arushi and Hemraj were killed on
the night of 15–16 May 2008 at the former’s
home. The police were heavily criticised
for failing to secure the crime scene
immediately.
After ruling out the family’s ex-
servants, the police considered Aarushi’s
parents—Dr Rajesh Talwar and Nupur
Talwar — as the prime suspects. The police
suspected that Rajesh had murdered the
two after finding them in an
“objectionable” position, or because
Rajesh’s alleged extra-marital affair had
led to his blackmail by Hemraj and a
confrontation with Aarushi.
The accusations enraged the Talwars’
and friends, most of them highly
influential and politically connected, who
accused the Uttar Pradesh police of
framing the Talwars to cover up the
botched-up investigation.
The case was then transferred to the
CBI, which exonerated the parents and
said they suspected the Talwars’ assistant,
Krishna Thadarai and two domestic
servants—Rajkumar and Vijay Mandal.
Based on the ‘Narco test’ conducted on
The talwars challenged the decision
in the allahabad high court, which
acquitted them on 12 October 2017
Chandrani Banerjee
Chandrani Banerjee has studied at the
Columbia Journalism School, and covered
the US elections, 2016. She has also filed an
experience report for UN office of Drug and
Crime about the Indian migrant workers,
and worked with Outlook
spotlight
In the Arushi murder case, the
CBI played such games that
the case went unresolved
In the Vyapam scam, nearly 40
witnesses were killed, and
nothing has been resolved
In the NRHM scam, two well
known doctors were shot dead
in broad daylight in Lucknow
The problem, thus lies, with
the fact that the investigators
file loose cases, willing to lose
unanswered questionsjudiciary

the three men, the CBI suspected that the
Rajkamal-Mandal duo had killed Aarushi
after an attempted sexual assault, and
Hemraj for being a witness to that.
The CBI was accused of using dubious
methods to extract a confession, and all
the three men were released after the
agency could not find any solid evidence
against them.
In 2009, the CBI handed over the
investigation to a new team, which
recommended closing the case due to
critical gaps in the evidence. Based on
circumstantial evidence, it named Rajesh
Talwar as the sole suspect, but refused to
charge him due to lack of any hard
evidence. The parents opposed the closure,
calling CBI’s suspicion on Rajesh as
baseless.
Subsequently, a special CBI court
rejected the CBI’s claim that there was not
enough evidence, and ordered proceedings
against the Talwars. In November 2013,
the parents were convicted and sentenced
to life imprisonment but many critics
argued that the judgment was based on
weak evidence. The Talwars challenged the
decision in the Allahabad High Court,
which acquitted them on 12 October 2017,
calling the evidence against them
unsatisfactory and giving them the benefit
of the doubt.
Vyapak Vyapam
The Vyapam scam related to an entrance
examination, admission and recruitment
scam that was unearthed in Madhya
Pradesh in 2013. It involved politicians,
seniorandjuniorofficialsandbusinessmen
and scamsters systematically employing
imposters to write papers, manipulate
exam hall seating arrangements and
supply forged answer sheets by bribing
officials.
The scam involved 13 different exams
conducted by Vyapam, till recently private
recruitment agency for specialised
professional courses, for which parents are
willing to spend their life’s savings, for
not thought to be part of an organized ring.
When major complaints surfaced in the
pre-medical test (PMT) in 2009, the state
government established a committee to
investigate the matter.
The committee released its report in
2011, and over a hundred people were
arrested by the police. However, none of the
accused has been convicted, as most of
them either suspiciously died in custody or
were released on bail. The sheer scale of the
scam came to light in 2013, when the Indore
police arrested 20 people who had come to
impersonate candidates for PMT 2009.
National Murders
NRHM Murder Case: Uttar Pradesh
NRHM scam is an alleged corruption
scandal in Uttar Pradesh in which top
politicians and bureaucrats are alleged to
have siphoned off a massive amount
estimated at ₹100 billion from the National
Rural Health Mission, a central government
program meant to improve health care
delivery in rural areas.
At least five people were allegedly
the vyapam scam related to an entrance
examination and recruitment that was
unearthed in madhya pradesh in 2013
selection of medical students and state
government employees (including food
inspectors, transport constables, police
personnel, school teachers, dairy supply
officers and forest guards) where the final
results were rigged.
The exams were taken by around 3.2
million students each year, many of who
were paid proxies for other undeserving
students. It also included an “engine-
bogie” system wherein seating
arrangements were manipulated so that
a paid smarter student was seated
between two others to allow the latter to
copy answers from the former.
This scam also led to between 23 and
40 ‘unnatural’ deaths of involved
individuals, though unofficial figures run
well into more than a 100 custodial
deaths and deaths in staged road
accidents.
Cases of irregularities in these
entrance tests had been reported since the
mid-1990s, and the first FIR was filed in
2000.
However, until 2009, such cases were
photo:STRDEL/AFP

murdered to cover up large-scale
irregularities. Several former ministers of
the then ruling party in the state, Bahujan
Samaj Party, have been investigated by the
Central Bureau of Investigation.
The NRHM scam came to light after
two Chief Medical Officers (CEO) (the top
health functionary of the district) were
successively murdered in wealthier
localities of the state capital, Lucknow.
Dr Vinod Arya (October 2010) and Dr
BP Singh (April 2011) were shot dead in
broad daylight outside their homes, by
motorcycle assassins. Interestingly, the
same weapons were used in both crimes.
Deputy-CMO Y S Sachan, who is
thought to have had a role in the murders,
was arrested, but died mysteriously while
in custody. Subsequently, three other
functionaries who were under
investigation have also been murdered or
died under suspicious circumstances.
Green Pastures Ghaziabad
Ghaziabad PF SCAM was about sitting
and retired Supreme Court and High
Court judges. Allegedly the judges were
provided with luxury cabs, mobiles and
other services from the provident fund of
the district court.
In a mysterious way, the key accused in
the matter, Ashutosh Asthana died in jail
while the top court was monitoring the
investigation. Asthana was alleged to have
siphoned off PF funds of Class III and IV
employees of the court, in conspiracy with
other staff. This money was allegedly used
to dispense favours to several sitting and
retired judges of the high court and
Supreme Court.
The approvers in the Ghaziabad district
court provident fund fraud, who had
confessed to involvement and given
evidence against the accused, told the
Supreme Court that there was a move to
suppress the case by forcing them to turn
hostile. They alleged that the judicial
process was being subverted by recording
partial statements and that they were being
forced to depose only against retired and
not sitting judges. The Central Bureau of
Investigation was also not producing all
the evidence seized in the case, they
claimed before the court.
What is common in all these criminal
court battles? They have remained
unfinished till date. These high-profile
cases that could not pass the litmus test in
the court of law and fallen flat are mainly
because of poor investigation, inconclusive
evidence and witnesses turning hostile or
murdered.
If we pay a cursory look at the killings,
they have taken place in a way to dilute the
whole issue and despite media glare the
case could not be taken it to a conclusive
end till date. The 2G Scam probably is the
biggest projected scam, that even cost
Congress an election remained
inconclusive with wrong figures.
What are the reasons- why is there this
tendency of fearlessness that the cases can
be worked out from the beginning? Why
police investigations in most of the cases
are shoddy? Why during the trial of a
high-profile case, a prime witness gets
killed?
Speaking about this trend, former
Bombay High Court Judge Hosbet Suresh
said, “The biggest reason for such incidents
are the delay in hearing and then
subsequent progress of the cases. The
courts are hugely burdened. There is no
way that the court could expedite the pace
of the matter. Therefore, we need more
courts. The infrastructure is an issue and
we have shortage of time. So, there is only
one way that the courts should work in
shifts. Multiple shifts will work because
the same infrastructure can be used. And
there will be a speedy delivery of justice.
Law Commitment
In March 2012, Law Commission of India
came up with a report on Expeditious
Investigation and Trial of Criminal Cases
Against Influential Public Personalities.
The report widely talked about inordinate
delays in the investigation and prosecution
of criminal cases involving serious
offences and in the trial of such cases in
the Courts.
The report was prepared by the
commission on a Supreme Court directive
to the Central Government while
approvers in the ghaziabad court pF
fraud told the supreme court that there
was a move to suppress the case
unanswered questionsjudiciary

delivering an order in a Jharkhand matter
that witnessed inordinate delay. The report
clearly mentioned that the fact that
influential political personalities and their
henchmen are involved in this case
presents an added dimension to the issue
and raises questions on the efficacy of the
existing systems and practices to counter
the moves of such influential persons
facing serious criminal charges.
Public interest demands that the
criminal cases, especially those related to
serious crimes are concluded within a
reasonable time so that those guilty are
punished. Further, from the point of view
of the accused too, the right to speedy trial
is a fundamental right.
People get frustrated with the system if
at every stage there is delay and the process
of justice is not allowed to take its normal
course; more so, when deliberate attempts
are made to subvert and delay the process.
Further, with the long passage of time
between the registering of a case and its
disposal, either way, whatever evidence is
there, will vanish or eclipse.
Oral evidence, which in most of the
cases is vital to the prosecution, will take
a devious or distorted course.
Skewing Cases
Hostile witnesses and witnesses with faded
memories will be writ large in the system,
with the long passage of time. Heavy
reliance on oral evidence has telling
drawbacks.Lackofexpertiseandsustained
effort in investigation and non-utilization
of scientific methods of investigation is
resulting in low rate of convictions and
even implication of innocent persons.
According to the data compiled by
National Crime Records Bureau (NCRB),
in its 2016 report, a total of 1,1107472
cognisable criminal cases were reported at
the end of the year. These include cases
registered under IPC and special/local
laws (SLL). The number of pending cases
for trial in 2016 in various criminal courts
across country is 9,488402 while in Union
territories the number of pending cases for
trial is 9,703482.
“Pendency is an issue, but it is just one
issue. There is a bigger problem behind this
sabotage. And that is weak ‘prosecution’.
Prosecution is not free.
Unless the prosecution is free
from their political masters
and different interests, there
is no way that we can check
on this sabotage. They have
so many things on their
mind: punitive transfers,
penal postings…do we give
them the right to act freely?
I feel the prime cause of
weakening of criminal justice
system is because of the
pressured prosecution”, said
the former Chief Justice of
India, Justice VN Khare, on
the failing criminal justice
system.
Quality of investigation has also been
an issue for this poor criminal justice
system. “The saddest part is that the
networking starts from the moment a
crime is committed. When the body goes
for post-mortem the networking is done
for a favourable report. And it goes on till
the matter reaches to the court. And the
final touches are being given when the
objections raised in the court proceedings.
The loopholes become a boon for the
accused because of poor investigation”
said Abani Sahu, Supreme Court Lawyer
while speaking about the falling standards
of criminal justice system.
In 2007, a committee constituted under
the Chairmanship of Professor Madhav
Menon submitted a national draft policy
on criminal justice system to the then
Home Minister Shiv Raj Patil.
Menon,whoisaformervice-chancellor
of National Law Universities in Kolkata
and Bengaluru, speaking to
Parliamentarian said that the criminal
justice system has been affected from every
quarter. “The police, prosecution and the
whole system is inter- dependent and that
affects the system like anything. On top of
all these corruption and influence is also
there. We need to work strongly to remove
corruption and make it for workable”.
non-utilisation of
scientific methods
of investigation
is resulting
in low rate of
convictions
courtesy:news18.com

“Judiciary?
BJP just wants
to saffronise
everything!”
Congressman, Rajya Sabha MP and senior Supreme Court lawyer
Kapil Sibal does not hold back from saying things as they are, and
with an added punch for good effect. Speaking to Parliamentarian
on a Saturday afternoon, Sibal was in a thoughtful mode and
looked at the judiciary qua judiciary, and the BJP politics qua
saffronisation. The only faith he had was that the judiciary was
standing its ground Excerpts from an interview:-
kapil sibalinterview

At this point, there are two issues. I know you would not want
to talk about the press conference (by the four top judges). All
that is over now. What I want to ask you is: Is the judiciary
under the political shadow of some sort at the present
moment? Would you want to comment?
I do not think I have to say anything other than the fact that the
judges themselves have expressed concern. It is an
extraordinary step that four distinguished judges took. But I
am very much disturbed at the constitution of benches in the
Supreme Court. That is a matter that the four distinguished
judges have also alluded to. The taking up of very serious
matters and the timing of taking up those matters are of
concern to members of the legal fraternity. But I wouldn’t go to
the extent of saying that they are influenced by A, B or C.
When you mentioned at an earlier point of time in the court
that perhaps the Ayodhya case should be deferred, it did raise
a lot of flutter across the media and even in the political
circles.
I merely mentioned the fact that this matter was mentioned in a
statement of that nature. Now you know the Rathyatra has
started. I also said that it is part of the manifesto of the BJP that
they will build the temple in 2018, implications known to the
court There is nothing wrong with that. I am not attributing
anything to the court. I am attributing something to those who
are in power and to the political party backing
them, wishing that they deliver the Ram
temple to their vote bank. There is nothing
wrong in delivering anything. There is political
motivation. But no one can deny the political
motivation.
This is the kind of overlap in the political
context and the judicial cases. The Ayodhya
case is one example. That of Judge BH Loya is
another…
The court did not lodge an FIR (in the Loya
case). The court did not investigate the matter.
Then Public Interest Litigations (PIL) are filed.
Some of them may be very suspect. They have been transferred
to the Supreme Court. The case is being heard through a PIL.I
do not want to comment on what is happening in the court.
This is hardly the way of investigating whether a particular
judge died a natural death or not. Public interest litigation
cannot lead to any conclusion. What is required is an
investigation and by an independent authority.That is why,
members of 15 political parties signed a statement saying that
we want an independent SIT, just as in the 2G case, officers who
are independent, who do not belong to the NIA or the CBI, and
are monitored by the court. What is wrong with that?
Apart from that, if you look at the background, almost 30 to
35 witnesses have turned hostile. Even witnesses who gave
(Section) 164 statements have (done so). A retired judge of the
Bombay high court, Justice Thipsay made an elaborate
statement because he clearly dealt with the matter. He himself
says that that there is a lot of suspicion. If members of the
judiciary are saying it, if members of the family are saying it, if
we are saying it, there is nothing political about it. We are
protecting the rule of law. We are trying to uphold the rule of
law.
When the UPA was in power, you had introduced the
National Judicial Appointments Commission (NJAC) in the
Rajya Sabha and while doing so you had talked of the
kapil sibalinterview
“I am very disturbed
at the constitution of
the benches. That is
also a matter that four
distinguished judges
court have alluded to”

principle of separation of powers. This government has pushed
a modified NJAC bill and got it passed. But it had lost the case
in the Supreme Court. Is it a very big setback and is that what
is making the relationship between the government and the
court adversarial?
I think there also there are concerns within the judiciary.
Members of the judiciary have made the position clear. They
have asserted the independence of the judiciary. There is no
going back. An attempt was sought to reopen that issue. And the
Judiciary is very concerned about it. That also has nothing to do
with any political party. We want to make sure that judiciary’s
position as reflected in the judgment is left intact, and that there
should be no compromise. Political system should not push
people of its choice. The fact that they have objected to (K.M.)
Joseph, saying that he is not the senior-most shows the bias and
the prejudice of this government because they themselves have
discarded the concept of seniority when bringing judges to the
Supreme Court and this is the reason they use to block Joseph. It
is an absolute shame. Just because the judge has discharged the
judicial function independently and that is not looked upon with
grace and with acceptance. The judge is
being targeted and not being allowed to
come to the Supreme Court, especially
when the collegium has recommended
him. He is one of the most outstanding
judges.
Do you see this as a clear bent of mind
of this government, that the BJP wants
to influence, mould and shape the
judiciary of the future?
Forget the judiciary. They want to shape the future of this
country through saffronisation. They want everything to be
saffron from the secretariat to the buses in Uttar Pradesh to the
educational institutions, to the post of governors, to the election
commission.But judiciary so far has stood its ground and we
admire it for it.
Do you see the judiciary standing its ground and it will outlast
the pressure?
I have great faith in some of our senior-most judges. I am sure
they will resist pressure and we will stand by them.
Are there any stress points within the judiciary which would
allow the political establishment to sort of push its way?
There are stress points… human beings are human beings. As an
institution, judiciary can withstand pressure. Governors are
appointed directly (and) they will choose saffron colours. This is
true of the election commission, true of directors of IIT. This is
true of vice-chancellors. This is true of other institutions. Prasar
Bharati is resisting but that is because of one individual. In other
cases, they (the government) certainly can bulldoze them. When
it comes to judiciary, there is a difference because you can
appoint one governor for a state but you have lots of judges to
appoint. Not everybody is saffron.
It is not ironical as much as opportunism. BJP has been vocal
in its criticism of the Congress governments for influencing
the judiciary. Now, they are they doing the same.
A lot of appointments were made by us. See the judgments. They
went against us. The 2G judgment…
That is a charge.
Ex facie, it is a false charge.
Would you say that the BJP is trying to shape the judiciary,
not that they would succeed?
Without any doubt;the resistance to Joseph is itself an evidence.
They do not want independent voices.
So, this talk of independent judiciary…
They do not believe in it.
Do you think this press conference is a
passing crisis, and the judiciary will
sort out the issue from within?
It is a crisis that is endemic. It is a crisis
that has to be resolved. I hope and
believe that the institution will do it.
Without prodding from the outside…
How can anybody prod the judiciary? We all must stand
together with the judiciarysince they wish to uphold their
independence.
So, the integrity of the institution needs to propped up from
outside, indirectly and silently?
It needs to be propped up only to the extent that we should
support all attempts to retain their independence.
To that extent the BJP has a role to play. They said they would
not interfere. Was that a wise step?
They are interfering. Why do you say that they are not
interfering? They rejected a name recommended by the
collegium for a reason that is specious.
To that extent there is a tussle going on and the judiciary will
outlast the pressure…
They are attempting to influence. I do not think that the
institution will succumb.
“The fact that they
have objected to
Joseph not being
the senior-most
judge exposes the
government’s claims”

Judicial
reformsjudiciary

Reforms?The overall theme of the press conference
by the four top judges of the apex court
was accountability of judicial system to the
common people, which is also enshrined in
the Constitution
imaging:satyajitdatta

A
n unprecedented press
conference by four senior
judges of the Supreme Court
shook up the country. What has
been surprising is the silence of the judges,
government, media and the public that has
followed. The four judges themselves had
said that they had no choice left, but to talk
to the nation directly. Their letter to the
Chief Justice, which was made public at the
press conference, had also highlighted that
all is not well within the judiciary. In the
frenzied atmosphere, multiple
stakeholders, i.e. the Attorney General,
Bar Council of India, Supreme Court Bar
Association all jumped into the fray and
laid claims to a truce. However, all such
talk later became falsehood. The lull after
the clarion call, made from the highest
echelons of the judiciary is the real danger
for democracy in India.
Even though little was said in the press
conference on January 12 2018, but the
message is clear that the four judges were
invitingnationalattentiontothefollowing:
a. Discretionary powers of Chief Justice as
per the principle of master of roster
b. Challenges in appointment of judges
through Collegium System
c. Corruption in Judiciary which took a
new height in Medical College Case
The overall theme was accountability
of judicial system to the common people,
which is also provided by the Constitution.
Steps have indeed been taken to ameliorate
some of the issues, yet there is no clear way
going forward.
Master of Roster
In their letter, the four judges had said,
“One of the well-settled principles is that
the Chief Justice is the master of the roster
with the 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 members/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 recognising
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 among the equals — nothing more or
nothing less.” The four judges, as a
secondary point had also stated, “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
the particular case or the composition
thereof.”
The sync of the above two principles is
what the four judges were seeking.
However, a Constitution Bench of Supreme
Court, of which Chief Justice himself was
a member, declared Chief Justice to be the
master of the roster.
Thereafter, as the chill remained in the
corridors of the Supreme Court, different
suggestions to the allocation of cases came
to the fore. Some suggested that only the
top five judges of the Court should hear
PILs, while some favoured the allocation
of cases by the Chief Justice. Demands
were also made for the rational allocation
as the chill remained in the corridors
of the supreme court, different and
opposing suggestions on the allocation
of cases came to the fore
spotlight
The judges had said that they
had no choice left, but to talk
to the nation directly
Bar Council of India, Supreme
Court Bar Association all
jumped into the fray
It is settled in jurisprudence of
this country that the CJI is only
the first among equals
The medical college scam
brought to fore instances of
corruption in higher judiciary
judiciary
virag gupta
Virag Gupta practices at the Supreme
Court of India. He is a former IRS officer
and has worked with Ernst & Young
reforms

of cases as not every judge is well versed in
every domain of law. In fact, the former
Chief Justice of India JS Khehar had once
stated that he only knew administrative
law when he was elevated to the Bench. The
example of Delhi High Court was also
cited wherein the cases are distributed
amongst the judges as per a set mechanism.
Eventually, in a welcome move, the Chief
Justice of India did publish a roster on the
recommendation of Supreme Court Bar
Association. One hopes that it will ensure
the overall environment of a particular law
subject in court, perhaps leading to better
justice delivery. Nevertheless, the roster is
applicable only to fresh cases and such is
its generality that the only thing noticeable
is that all PILs will be heard by the Chief
Justice Bench. But what about days when
the Chief Justice is not available? There is
no answer to the same.
Appointment of Judges
The chill in bonhomie amongst the first
five judges of the Apex Court was also
given wind by the fact that the minutes of
the meetings relating to elevation of
Uttarakhand Chief Justice K.M.Joseph
and Senior Advocate Indu Malhotra were
made public after a long time. Even
otherwise, the disdain for Collegium
system was mentioned in the NJAC
judgment itself. Even as the Memorandum
of Procedure for the appointment of judges
is pending with the Government, it did
become the eye of the storm in the
judiciary. It is true that the Supreme Court
for a long time had not said anything on
the MoP (Memorandum of Procedure for
appointment of judges), except amending
and returning the draft sent by the
Government.
The letter by four judges also shows
their thinking wherein they had the
understanding that in view of the stoic
silence of Government on the draft sent by
Judiciary, the draft sent by Judiciary would
have become final. However, seemingly,
judicial impropriety killed any such
the Order in RP Luthra case has put back
the ball back in the court of the
government, it will be interesting to see
what spurs the sparring on this issue.
Corruption in Judiciary
The medical college scam brought to fore
instances of corruption in the higher
judiciary. A retired High Court judge was
arrested in what was purportedly an
effort to bribe judges of the Supreme
Court. In subsequent events, an in-house
panel was constituted by Chief Justice of
India to examine the impropriety of
judicial actions of Justice SN Shukla of
Allahabad High Court. Justice Shukla
had allegedly altered his Order regarding
clearance to a medical college. The in-
house panel constituted to examine the
conduct of Justice SN Shukla was headed
by Chief Justice of Madras High Court, a
move that does not have any serious legal
backing. Constitution has mandated
independent administrative structure for
the High Courts. Yet, the panel has
reportedly recommended withdrawal of
all judicial work from Justice SN Shukla
and has also recommended impeachment
a retired high court judge was arrested
in what was purportedly an effort to
bribe judges of the supreme court
chances as on 27th October, 2017 in R.P.
Luthra vs. Union of India, a Bench of
Supreme Court said that there should be no
further delay in finalising the MoP in the
larger public interest. As a consequence,
finalisation of MoP was given a fresh lease
of life. Subsequently in advancing their
concern, through their letter, the four
judges also pointed out that MoP was
deliberately not discussed in the Karnan
case, and that Order in R.P. Luthra vs.
Union of India did more harm.
Even as on date, the finalization of MoP
has remained stagnant. The appointments
are being made through the Collegium
System, with some of them receiving
opposition from the Centre. The minutes of
the Collegium meetings are also out in
open, giving rise to question marks over the
credibility of quite a few who are not
elevated.
The letter by four judges had stated that
“Any issue with regard to the MoP 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.” As
photo:SAJJADHUSSAIN/AFP

Parliamentarian | Crisis Of Justice | Rise And Fall Of The Indian Judicial System

Parliamentarian | Crisis Of Justice | Rise And Fall Of The Indian Judicial System

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