Supreme Court; Allocation of cases is CJI’s prerogative

 Supreme Court: Allocation of cases is CJI’s prerogative

The Chief Justice of India (CJI) is a high constitutional office entrusted with the duty to constitute Benches and allocate cases for the smooth dispensation of justice by the Supreme Court, the court held in a judgment on Wednesday while dismissing a public interest litigation (PIL) petition filed by Asok Pande for a transparent and codified procedure for constitution of Benches and allocation of cases in the court.
Supreme CourtThe office of the CJI is an institution in itself, the judgment by a Bench,  also comprising Justices D.Y. Chandrachud and A.M. Khanwilkar, observed.

Pronouncing the judgment on behalf of the Bench, Justice Chandrachud said, “There cannot be a presumption of distrust against the Chief Justice of India in his exclusive prerogative, granted by the Constitution, to set up Benches and allocate cases to judges.”

Second declaration

This is the second time the court has declared the CJI as the master of roster. On both occasions, Chief Justice Misra headed the Benches.  This time, the court said the question should be put to rest finally with Wednesday’s judgment.

Mr. Pande’s petition came up for hearing almost immediately after the Supreme Court’s number two judge, Justice Jasti Chelameswar, attacked the Chief Justice of India’s discretionary powers to constitute Benches and allocate cases.

A Bench, comprising Chief Justice Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud dismissed a PIL plea seeking framing of guidelines for allocation of cases

“Unfettered power is being exercised by the Chief Justices in the matter of formation of Benches, and so, the same is liable to be regulated through specific Rules,” the petition contended.

It said specific provisions should be incorporated in the Supreme Court Rules of 2013 that the three-judge Bench in the Chief Justice of India’s court should consist only of the Chief Justice of India and the court’s two senior-most judges. That is, in the present scenario, Chief Justice Misra and Justices Chelameswar and Ranjan Gogoi.

The petition demanded that the Constitution Bench of the court should consist of the five senior most judges — the CJI, Justices Chelameswar, Gogoi, Madan B. Lokur and Kurian Joseph — or a combination of the three senior-most and two junior-most judges. That would be the CJI, Justices Chelameswar and Gogoi followed by Justices Navin Sinha and Deepak Gupta.

Justices Chelameswar and Gogoi – who is the next in line as CJI under the seniority norm, Lokur and Kurian, at a press conference held on January 12, accused the recent trend of CJIs selectively allocating cases to preferred Benches.

“Subject-wise roster” of cases

Subsequently, Chief Justice Misra published a “subject-wise roster” of cases to be handled by the Supreme Court judges. However, the roster did not ease criticism. As proof, Justice Chelameswar, responding to a question why all the important cases continue to be heard by Chief Justice Misra, responded rather drily: “He is the master of roster… If he [CJI Misra] has the energy to do the entire work, let him do it”.

Mr. Pande’s petition follows an earlier petition filed by former Union Law Minister Shanti Bhushan for a declaration that the authority of the CJI as ‘master of roster’ should not be reduced to an absolute, singular and arbitrary power.

Mr. Bhushan had specifically asked the Supreme Court Registry not to place his petition before a Bench of which Chief Justice Misra is a part of.

NEW DELHI, APRIL 11, 2018

Unaccounted flow of funds to NGOs a ‘major problem’: SC

Unaccounted flow of funds to NGOs a ‘major problem’: SC

Noting that a lack of law to regulate the “mind-boggling” funds NGOs get annually is a “major problem”, the Supreme Court on Wednesday stepped in to consider directing the Law Commission of India to recommend the Centre to frame an effective law to control and watch the flow of money to a total 29.99 lakh NGOs functioning in the country.

NGOs

“This is a major problem. They are getting money from all over the world. Mind-boggling…” Chief Justice of India T.S. Thakur observed.

The Bench, also comprising Justice A.M. Khanwilkar, appointed senior advocate Rakesh Dwivedi as amicus curiae to assist it in finding a way to deal with the issue and, if necessary, refer to the Law Commission.

“This is a major problem. They are getting money from all over the world. Mind-boggling…” Chief Justice of India T.S. Thakur observed.

Advocate M.L. Sharma, who filed the petition, submitted that 80 per cent of the NGOs get foreign funds. He claimed that “retired government employees and politicians run these NGOs drawing on their influence.”

“We can refer to the Law Commission to bring a law to control the NGOs… at least for the future, we want to know whether we can do some exercise to regulate these organisations,” Chief Justice Thakur observed, posting the case for urgent hearing on Monday next.

Advocate M.L. Sharma, who filed the petition, submitted that 80 per cent of the NGOs get foreign funds. He claimed that “retired government employees and politicians run these NGOs drawing on their influence.”

To this, the CJI reacted: “What is an NGO? Anyone can register a society and it becomes an NGO… There is no legal brainwork done at the Central level to control them. Unless some mechanism is put in place centrally, nothing can be done”.

NEW DELHI, September 14, 2016

No evaluation applications for appointment of judges

Chief Justice of India’s no to panel to evaluate applications for appointment of judges

The Chief Justice of India has rejected the government’s move to put in place a committee of retired judges to evaluate the applications of candidates for appointment of judges before forwarding them to the collegium to decide whether to recommend their names for elevation or appointment as judges.

CJI T S Thakur expressed his reservations over the clause in the revised draft memorandum of procedure (MoP) when External Affairs Minister Sushma Swaraj, who headed the Group of Ministers which drafted the MoP, and Law Minister D V Sadananda Gowda met him at his residence on Wednesday evening.

appointment of Judges

Parliament had enacted the National Judicial Appointments Commission Act to do away with the over two-decade old collegium system where judges appoint judges. The law was struck down by the apex court on October 16 last year.

A Supreme Court bench, while deciding on ways to make the collegium system more transparent, had asked the Centre to redraft the MoP in consultation with the states.

The MoP is a document which guides the appointment of judges to the Supreme Court and the 24 high courts. At present, there are two MoPs — one for the apex court and the other for the high courts.

The government had sent the MoP to the SC collegium in March. The CJI had returned the document in May raising objections to the various clauses.

Wednesday’s meeting was aimed at narrowing down the differences between the executive and the judiciary on MoP.

At the meeting, Justice Thakur said the committee of retired judges to evaluate the applications by candidates for appointment was unacceptable, highly placed source said.

The government wanted the proposed committee to evaluate the experience of aspirants in detail before making recommendations to the collegium for taking a final call.

One committee was proposed at the Supreme Court level and 24 others for each of the high courts.

While the government and the collegium were on the same page on having secretariats in high courts to process judicial appointments, the judiciary had earlier opposed defining the role of the proposed secretariat. At the meeting, however, there was an agreement on defining the role and functions of the secretariat.

– 03 July 2016 | PTI | New Delhi

Think of harsher punishment for child rape accused: SC

Think of harsher punishment for child rape accused: SC

The Supreme Court on Monday said parliament may think of formulating laws providing for harsher punishment for those accused of rape and abuse of minor children.
An apex court bench headed by Justice Dipak Misra said this while hearing a petition filed by Supreme Court Women Lawyers Association seeking castration of child rape convicts.
The bench told the petitioner’s lawyer Mahalakshmi Pavani that emotions and sentiments could not be a basis for framing of laws for providing stringent punishment for convicts.
The court noted Attorney General Mukul Rohatgi’s submission that law-making power was within the domain of parliament and the same could not be exercised by courts.
-11 January 2016 | IANS | New Delhi

December 16 Delhi rape case; SC rejects plea against release of juvenile

December 16 Delhi rape case; SC rejects plea against release of juvenile

The Supreme Court today dismissed a plea of DCW Chairperson Swati Maliwal against the release of the juvenile offender in the December 16 gang rape case, saying “there has to be a clear legislative sanction” in this regard.
“If anything has to be done, it has to be done according to the law. We have to enforce the law,” a vacation bench comprising justices A K Goel and U U Lalit said while refusing to entertain the plea of Maliwal filed in her official capacity as Delhi Commission for Women (DCW) Chief.
The bench did not agree with the submission that the juvenile offender can be subjected to the reformation process for a further period of two years under the juvenile law.
“Will we not taking away somebody’s right to life guaranteed under Article 21 of the Constitution. There is nothing in the law to provide that,” the bench said when the counsel for DCW cited provisions to drive home the point that the delinquent juvenile can be allowed to go through the further reformation process.
At the outset, the counsel for DCW assailed the order of the Delhi High Court order saying that it did not consider the provisions of the Juvenile Justice (Care and Protection of Children) Act.
He said that the juvenile, who is in conflict with the law, has to undergo the reformation process and there is an Intelligence Bureau report which indicates to the contrary and that the juvenile has been rather radicalised further.
Additional Solicitor General Pinky Anand, appearing for the Centre, supported the DCW’s submissions saying that the juvenile can be kept under observation till such time the reformation process is on.
“You are supporting them without making the law,” the bench said, adding, “There must be some legislative sanction behind it. In no case it can get extended.”
“We share your concern, but cannot do anything without legislative sanction,” the bench further said, adding that the period cannot be extended beyond three years.
In an order on the intervening night of December 19-20, the Supreme Court had refused the move of DCW to stay the juvenile’s release by giving an urgent hearing. In its order pronounced at 2 AM, the apex court vacation bench had posted the matter for hearing for today.
The juvenile, who is now 20-years-old and was known to be the most brutal of the attackers, was released yesterday and sent to an NGO.
The Special Leave Petition filed by DCW against the order of the Delhi High Court, which refused to restrain the release of the convict, was referred by Chief Justice of India T S Thakur before the vacation bench of the apex court.
Lawyers opposing the release of the juvenile offender, including senior advocate Guru Krishna Kumar and Devdutt Kamath, had rushed to Justice Goel’s residence at around 1.30 AM after Maliwal was told by the court’s Registrar that the matter has been assigned to the vacation bench.
The grounds taken in the appeal against the high court order say that no mental assessment of the state of mind of the juvenile convict had been taken into account while taking the decision to release him.
Six persons, including the juvenile, had brutally assaulted and raped a 23-year-old girl in a moving bus in south Delhi on December 16, 2012. The victim had died in a Singapore hospital on December 29, 2012.
Mukesh, Vinay, Pawan and Akshay were awarded death penalty by the trial court in the gang rape and murder case which was later confirmed by the Delhi High Court. Their appeals are pending before the Supreme Court.
Accused Ram Singh had allegedly committed suicide in Tihar Jail on March 11, 2013, and proceedings against him were abated following his death.
-21 December 2015 | PTI | New Delhi

SC invokes Constitutional powers to appoint Justice Virendra Singh as UP Lokayukta

SC invokes Constitutional powers to appoint Justice Virendra Singh as UP Lokayukta
“The failure of Constitutional functionaries to comply with the orders of the highest court of the land is deeply regretted and astonishing,” a Supreme Court bench said on Tuesday before appointing former High Court judge Justice Virendra Singh as the Lokayukta of Uttar Pradesh.

The Court exercises its right under Article 142 of the Constitution to make the appointment while regretting that its several orders have not been “heeded” by the Constitutional functionaries — the Chief Minister, the leader of opposition and the Chief Justice of the Allahabad High Court.

In an unusual order, the Supreme Court on Wednesday exercised its Constitutional authority and appointed former High Court judge, Justice Virendra Singh, as Lokayukta of Uttar Pradesh after the State government failed to comply with its directives.

In an embarrassment for the Samjwadi Party government in Uttar Pradesh, the bench examined a list of nominees and ordered the appointment.

“The failure of Constitutional functionaries to comply with the orders of the highest court of the land is deeply regretted and astonishing,” a bench headed by Justice Ranjan Gogoi said, adding, “We, therefore, proceed to exercise our right under Article 142 of the Constitution to remedy the situation by passing an appropriate order.”

The Court said that it appoints Justice Singh as Lokayukta and asked the State government to file a report by December 20, 2015 indicating compliance of its order.

The bench regretted that its several orders have not been “heeded” by the Constitutional functionaries — the Chief Minister, the leader of opposition and the Chief Justice of the Allahabad High Court.

In the forenoon, the bench took strong note of the submission of senior advocate Kapil Sibal, appearing for the State government, that though it had shortlisted five names but no consensus has been arrived at on a specific person.

The bench then asked Mr. Sibal to provide the names by 12.30 p.m. on Wednesday itself and said, “We know how to get our orders complied with”.

The law provides that a high-powered committee of the Chief Minister, the leader of the opposition and the Chief Justice of the concerned High Court together appoints the chief of the State ombudsman.

Earlier on December 14, the apex court had rapped the U.P. government for not appointing the Lokayukta in the State despite its directions, saying it seemed that appointing authorities have their “own agenda”.

The bench was hearing the pleas filed by Mahendra Kumar Jain and lawyer Radhakant Tripathi seeking a direction to the State to appoint the Lokayukta at the earliest in pursuance of the Supreme Court orders.

-PTI, NEW DELHI, December 16, 2015

Appoint priests as per ‘Agama Sastra’: Supreme Court

Appoint priests as per ‘Agama Sastra’: Supreme Court

The Supreme Court on Wednesday said that restrictions in ‘Agama sastras’ does not violate right to equality enshrined in Article 14 of the Constitution.

A bench led by Justice Ranjan Gogoi said appointment of archakas in temples following ‘Agama Sastra’ — rituals of individual temples concerned — will continue.

In 1971, the then DMK government under Chief Minister M. Karunanidhi amended the Tamil Nadu Hindu Religious Endowments Act to abolish the concept of hereditary appointments for priests (archakas) in temples in the State. The amendment was challenged in the Supreme Court, which took the side of the government.

In its judgment in the Seshammal case, a Constitution bench of the apex court held that appointment ofArchakas was a “secular function” and abolished “next-in-line succession” appointments. However, the court also made it clear that appointments so made, even if they are non-hereditary, should conform to the “usage” prevalent in the said temple. If the “usage” was that Archakas were appointed from a given “denomination, sect or group”, this had to be followed.

Critics said this translated into priest appointments again getting restricted to the community of Brahmins for several subsequent decades. A committee formed by the State government, in fact, said the Seshammal case had been misunderstood.

In May 2006, the DMK government took up the issue of priests appointments yet again. Relying on a 2002 judgement in the Adhithayan case, where the apex court held that there was no justification for insisting that persons of a particular caste alone could conduct temple rituals, the State issued a GO making any person with “requisite qualification and training” eligible for appointment.

The GO and the ordinance that followed were challenged by the Adi Saiva Sivacharyargal Nala Sangam.

The story so far
1971 The DMK government amends TN HR & CE Act to abolish hereditary appointment of priests and allow all, irrespective of caste, to become priests.
2002 The Supreme Court delivers judgement in the Adhithayan Case. Says no justification in implementing caste.
2006 DMK government issues fresh GO making all persons with “requisite qualification” eligible for appointment as priests. Order challenged again in Supreme Court.
May 2015 Supreme Court reserves judgement
Dec 2015 Supreme Court strikes down 2006 order, says priests can be appointed only as per the Agama Sastras

NEW DELHI, December 16, 2015

Cannot direct Parliament to enact Uniform Civil Code: SC

Cannot direct Parliament to enact Uniform Civil Code: SC

But will consider if an aggrieved Muslim woman comes to us, says the apex court.

Curious about the push to circumvent the Parliament and use the courts to usher in the Uniform Civil Code, the Supreme Court on Monday declined to hear a Bharatiya Janata Party leader seeking to bring the civil code which brings all religious personal laws under one umbrella.

A bench of Chief Justice of India T.S. Thakur and Justices A.K. Sikri and R. Banumathi asked BJP leader and advocate Ashwini Kumar Upadhyay to withdraw his petition, while saying that it could still consider such a plea for a common civil code had someone aggrieved by a harsh or discriminatory personal law of her community come to it.

“What cannot be done directly, you are trying to do indirectly… We cannot ask the parliament to bring the common civil code… tell us first, has anybody come from the community you are alleging discrimination? If an aggrieved Muslim had come, we would have still considered her case… but we cannot examine this on the basis of a PIL,” Chief Justice Thakur told senior advocate Gopal Subramanium.

The court said that the goal of the Constitution for a uniform civil code is “one thing”, asking the apex court in a PIL to issue a mandamus to the parliament to enact the common code is “another”.

“We cannot ask them (parliament) to bring the Uniform Civil Code,” Chief Justice Thakur said.

The Bench said that 21 years ago the apex court had declined to go into the issue of civil common code, and the position has not changed.

The Chief Justice Bench’s refusal to entertain this plea even as another Bench of Justices Anil R. Dave and Adarsh Kumar Goel, in a judgment, directed a suo motu PIL to be filed in the Supreme Court to have a re-look at the issue of “gender discrimination” suffered by Muslim women in the country.

In a judgment by Justice Goel, the Bench said that it is time for the apex court to settle once and for all whether the Islamic personal law violated the fundamental rights of Muslim women.

Another bench led by Justice Vikramjit Sen had also recently asked the government to clarify whether there is any definite move to usher in the Uniform Civil Code.

The Chief Justice Bench’s refusal comes even as Union Law Minister D.V. Sadananda Gowda had given a positive signal about the government’s intention to bringing a common code. The Minister however said a code could not be finalised overnight, but only after detailed consultations with stakeholders and voices in the government.

NEW DELHI, December 7, 2015

Justice T.S.Thakur sworn in as 43rd Chief Justice of India

Justice T.S.Thakur sworn in as 43rd Chief Justice of India

63-year old Justice Thakur took over from incumbent Justice H L Dattu who retired on Wednesday.

Justice T.S. Thakur being sworn-in as 43rd Chief Justice of India by President Pranab Mukherjee at Rashtrapati Bhawan, in New Delhi on Thursday. Photo: V. Sudershan

Justice T.S. Thakur being sworn-in as 43rd Chief Justice of India

by President Pranab Mukherjee at Rashtrapati Bhawan,

in New Delhi on Thursday. Photo: V. Sudershan

Justice Tirath Singh Thakur was on Thursday sworn in as 43rd Chief Justice of India by President Pranab Mukherjee at an elegant function in Rashtrapati Bhavan.

The senior-most judge of the apex court, 63-year old Justice Thakur took over from incumbent Justice H L Dattu who retired on Wednesday.

As a Supreme Court judge, he headed the bench which had delivered the verdict to reform cricket controlling body BCCI in the wake of allegations of betting and spot-fixing scandal in the Indian Premier League.

Justice Thakur also headed the bench which ordered probe into the multi-crore chit fund scam in eastern India, also known as Saradha scam.

He has also heard the multi-crore rupee NRHM scam, in which ex-UP minister Babu Singh Kushwaha is also an accused, besides other politicians and bureaucrats.

Born on January 4, 1952, he would have the tenure as CJI for a little over one year and would retire on January 4, 2017.

Son of former Deputy Chief Minister of Jammu and Kashmir Devi Das Thakur, a well known jurist and judge of the Jammu and Kashmir High Court, Justice Thakur enrolled as a Pleader in October, 1972 and joined the Chamber of his father.

He was designated as a senior advocate in 1990. On February 16, 1994, he was appointed as an additional judge of the Jammu and Kashmir High Court and transferred as a judge of the Karnataka High Court in March 1994.

He was appointed as a permanent judge in September 1995 and transferred to the Delhi High Court in July 2004.

Justice Thakur was appointed as acting Chief Justice of the Delhi High Court on April 9, 2008 and on August 11, 2008, he took over as Chief Justice of the Punjab and Haryana High Court.

He was elevated as a judge of the Supreme Court and assumed charge on November 17, 2009.

-PTI, NEW DELHI, December 3, 2015

Centre, not state, has ‘primacy’ in release: SC

Centre, not state, has ‘primacy’ in release: SC

Supreme Court says state government has no suo motu power to release the seven Rajiv Gandhi killers on remission without concurrence of Centre.

In what may spell a death blow to efforts by Tamil Nadu government to release seven killers of former Prime Minister Rajiv Gandhi, a Constitution Bench of the Supreme Court on Wednesday laid down the law that a State government has no suo motu power to remit sentences of persons who were convicted under a Central law and cases investigated by a central agency like the CBI.

In a majority judgment, a five-judge Constitution Bench held that Centre and not State government will have the “primacy” in deciding whether persons convicted in matters of the CBI or central agency should be released or not on remission as in the Rajiv Gandhi killers’ case.

Interpreting Section 435 (2) of the CrPC, the judgment authored by Justice F.M.I Kalifulla held that the word ‘consultation’ means ‘concurrence’. This means that TN govt should have got the prior consent of the Centre before issuing its February 19 order to remit the sentences.

The apex court further held that life imprisonment is for life.

Having thus laid down the law, the Constitution Bench however referred to a three-judge bench to separately decide the factual question of whether the February 19 order issued by the Tamil Nadu government releasing the Rajiv Gandhi killers was correct or not.

The court was delivering its verdict on on Tamil Nadu government’s decision to cancel the life sentences of convicts in the Rajiv Gandhi assassination case.

In 2014, a three-judge Bench led by then Chief Justice of India P. Sathasivam had prepared a set of seven questions for the Constitution Bench to declare the law on.

They include:

1. Does imprisonment for life in terms of Section 53 read with Section 45 of the Indian Penal Code mean imprisonment for the rest of the life of the prisoner or a convict undergoing life imprisonment has a right to claim remission?

2. Can a special category of sentence be made for the very few cases where the death penalty might be substituted with imprisonment for life or imprisonment for a term in excess of 14 years and can that category be put beyond the application of remission?

3. Is the ‘appropriate government’ permitted to exercise the power of remission under Section 432/433 of the Cr.PC after parallel power has been exercised by the President under Article 72 or by the Governor under Article 161 or by this court in its constitutional power under Article 32 as in this case?

4. Does Section 432(7) of the Cr.PC clearly give primacy to the executive power of the Union and exclude the executive power of the State where the power of the Union is co-extensive?

5. Which has primacy, the Union or the State, over the subject matter in List III of the Seventh Schedule of the Constitution for exercise of the power of remission?

6. Can there be two appropriate governments in a given case under Section 432(7) of the Cr.PC? Is suo motu exercise of the power of remission under Section 432(1) permissible? If, yes, is the procedure prescribed in the same Section mandatory or not?

7. Does the term “consultation” stipulated in Section 435(1) of Cr.PC imply concurrence?

The bench had said in its order that “the issues raised in the given case are of the utmost critical concern for the whole of the country, as the decision on these issues will determine the procedure for awarding sentences in the criminal justice system.”

In marathon hearings which continued for over three weeks before the Constitution Bench, Tamil Nadu government contended that judicial interference in States’ power to remit sentences affected citizens’ right to personal liberty.

Tamil Nadu government, represented by senior advocate Rakesh Dwivedi, drew a parallel between the assassinations of Mahatma Gandhi and former prime minister Rajiv Gandhi.

He said the courts should not take away the hope remission offers a life convict who has served 14 years of his life sentence.

The Centre had contended that no further mercy should be shown to convicts in the 1991Rajiv Gandhi assassination case. It submitted that the killing a former Prime Minister on Indian soil was a “diabolic act”.

The apex court had on February 20, 2014 stayed the Tamil Nadu government’s decision to release three convicts — Murugan, Santhan and Arivu — whose death sentences were commuted to life term by it on February 18 in the case.

It had later on also stayed release of four other convicts Nalini, Robert Pious, Jayakumar and Ravichandran in the case, saying there were procedural lapses on the part of the State government.

The Jayalalithaa government had decided to set free all the seven convicts who have been in jail for 23 years for their role in the assassination in Sriperumbudur.

KRISHNADAS RAJAGOPALNEW DELHI, December 2, 2015