January 15, 2018 NEW DELHI:
The dramatic press conference by four senior-most Supreme Court judges to allege that sensitive and important cases were being assigned to "select benches" headed by junior SC judges in the last few months — a charge intended to target Chief Justice Dipak Misra — appears contrary to the way such cases have been allotted in the last 20 years.
TOI tracked 15 'super sensitive cases of
national importance' in the last two decades, including those relating
to Bofors, Rajiv Gandhi assassination, L K Advani's trial in Babri
masjid demolition, Sohrabuddin Sheikh
fake encounter, Best Bakery and the case that changed how BCCI is run.
All of them have one thing in common — they were assigned by the then
CJIs, not to any of the four senior-most judges of the SC but to 'select
benches' headed by junior judges.
There is little evidence to suggest that
seniority of judges is a criterion for allocation of cases as was
suggested by the quartet of Justices J Chelameswar, Ranjan Gogoi, Madan
Lokur and Kurian Joseph in their letter to the CJI.
The manner in which successive CJIs have assigned cases points to a
more random selection of benches. Though the dissenting judges did not
mention particular cases, apart from confirming that the case of Judge
BH Loya was one, the view that "less senior" benches are not as
competent does not seem to have cut ice with past CJIs.
Some legal experts have also argued that the
argument raised by the seniors casts a shadow over the independence of
other benches and this requires some supportive evidence. Other opinion
has held that there is merit in the charges of 'bench fixing' levelled
by the senior judges and requires a response by the CJI who has held
that the roster is his domain as has been the case in the past. Those
who disagree with the rebel judges point out that the suggestion that an
effort to discreetly "help" the government in cases that might
embarrass it needs to be backed up or could be seen as a means to
pressure benches hearing various cases.
The petition challenging the validity of
Aadhaar was the only exception to the general rule as it was assigned to
court number 5, headed by Justice B S Chauhan. Still the judges with
seniority at two, three and four could harbour a grievance why it was
not assigned to them by the CJI.
The first of the important cases tracked by
TOI relates to appeals filed in 1998 by Nalini and others challenging
their conviction and death sentence in the Rajiv Gandhi assassination
case. At that point of time, it was the most high profile case in the
country. But the then CJI assigned it to three junior judges — K T
Thomas, D P Wadhawa and S S M Qadri who sat in courts much farther than
those headed by the fifth senior-most SC judge. No questions were raised
over the selection.
In 1999, the CBI
filed a new chargesheet in the Bofors case, making stunning
allegations. NRI industrialist brothers Srichand and Gopichand Hinduja
were made accused. The trial court refused bail. When they came to the
SC seeking bail, the then CJI assigned it to court number 8, headed by
junior judge M B Shah. They got bail by putting Rs 15 crore bonds. This
was not regarded as 'bench fixing' by the then CJI.
Advocate Lily Thomas filed a writ petition in
2005 seeking disqualification of MPs and MLAs upon their conviction and
sentence for two or more years. Elected representatives were used to
holding on to their memberships in Parliament and assemblies by filing
an appeal. This game changing petition was assigned by the then CJI to
court number 9, which was headed by Justice A K Patnaik, then a junior
judge.
The Best Bakery case came to the SC in 2004
through a writ petition filed by Zahira Habibullah Sheikh. The Gujarat
riots case, which earned the then Gujarat government the tag of 'modern
day Nero', was handled by then junior judge Justice Arijit Pasayat
sitting in court number 11.
Rubabuddin Sheikh, brother of Sohrabuddin who
was killed in a fake encounter case, filed a writ petition in 2007. The
case, which turned out to be politically crucial for Amit Shah
and Gujarat police, was assigned to a bench sitting in court number 11
headed by Justice Tarun Chatterjee, one of the junior most SC judges at
that time. Orders from the court created trouble for BJP and its
leadership in Gujarat and did not attract any comment from activist
lawyers about possible 'bench fixing'.
In 2009, renowned advocate Ram Jethmalani
launched a crusade against black money by filing a petition in the SC.
The case, which became an election issue in 2014, was handled by court
number 9 and by a bench of then 'junior judges' Justices B Sudershan
Reddy and S S Nijjar. A year later in 2010, an NGO led by advocate
Prashant Bhushan brought the case relating to alleged irregular
allotment of 2G spectrum and the then CJI assigned it to court number 11
of Justices G S Singhvi and A K Ganguly. No one can fault the way they
handled the case despite being juniors.
The same year, the Delhi HC gave a landmark
judgment decriminalising consensual sexual relationship in private
between adults of LGBTQ community. The appeal by one Suresh Kumar
Kaushal in the SC was assigned by to court number 11 where a bench
headed by Justice G S Singhvi heard it for the first time.
In 2011, the CBI filed an appeal, after much
dithering, questioning the Allahabad HC decision to drop conspiracy
charge against L K Advani and a host of BJP stalwarts in the Babri masji
demolition case. In March 4, 2011, the case was heard in court 8 by a
bench of Justices V S Sirpurkar and T S Thakur. The bench changed to
Justices H L Dattu and Chandramauli Prasad in court 11, then to court
number 9 of Justices M Y Eqbal and Arun Mishra in 2016. It passed on to
court number 6 of Justices P C Ghose and R F Nariman which gave judgment
on April 19 last year reviving the conspiracy charge.
In 2012, four explosive PILs were filed —
irregular allotment of coal blocks that came close to singe then PM
Manmohan Singh, validity of Aadhaar, validity of 66A of Information
Technology Act and an alleged sexual assault case against Rahul Gandhi.
The coal scam petition by advocate M L Sharma was assigned to a bench
headed by Justice R M Lodha sitting in court number 7.
An appeal filed by one Kishore Samrite
presented a curious judgment passed by Allahabad HC, which had dismissed
Samrite's petition with a cost of Rs 50 lakh, of which Rs 20 lakh was
to be given to Rahul Gandhi. The then CJI assigned this to a bench of
Justices V S Sirpurkar and T S Thakur in court number 8 and then changed
the bench to Justices B S Chauhan and Swatanter Kumar, which dismissed
it with a cost of Rs 5 lakh on Samrite.
Source: THe Economic Times
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