Justice Ranjan Gogoi sworn in as Chief Justice of India

Justice Ranjan Gogoi sworn in as Chief Justice of India

Justice Ranjan Gogoi was on Wednesday sworn in as the 46th Chief Justice of India. He succeeds Justice Dipak Misra. President Ram Nath Kovind administered the oath to the 63-year-old Justice Gogoi at a brief ceremony in the Rashtrapati Bhavan’s Darbar Hall. Justice Gogoi will have a tenure of a little over 13 months and retire on November 17, 2019.

Justice Ranjan Gogoi after being sworn in as the 46th Chief Justice of India at Rashtrapathi Bhavan, New Delhi, October 3, 2018
Justice Ranjan Gogoi after being sworn in as the 46th Chief Justice of India at Rashtrapathi Bhavan, New Delhi, October 3, 2018 

Ranjan Gogoi (born 18 November 1954) is the current Chief Justice of India succeeding Dipak Misra and took the oath of office as the 46th Chief justice of India on 3 October 2018. His father Keshab Chandra Gogoi was Chief minister under the Indian National Congress regime in the state of Assam in the year 1982. He is the first person from Northeast India and first Assamese to become Chief Justice of India.

Career

Justice Gogoi was enrolled at the Bar in 1978 and practised at the Gauhati High Court of which he was made a Permanent Judge on 28 February 2001. He was transferred to the Punjab and Haryana High Court on 9 September 2010 and became its Chief Justice on 12 February 2011. He was elevated as a Judge of the Supreme Court on 23 April 2012. On 3 October 2018, He took the oath of office of the chief justice of India, thus succeeding Dipak Misra.

Significant Judgments & Orders

Dismissal of appeal by Reliance Communication

A bench led by Justice Ranjan Gogoi, dismissed the appeal of Reliance Communication, challenging the Gujarat government’s demand notices seeking to levy Rs 13-crore property tax on cell towers and telecom equipment installed on rooftops and building terraces in the state.

On Coconut Oil Packaging

In the case on whether coconut oil packaged in “small containers” be classified as edible oil or hair oil for the purpose of taxation, the Supreme Court Bench of Justice Ranjan Gogoi and R. Banumathi were unable to arrive at a consensus to put this issue to rest. According to Justice Gogoi, Coconut oil would fall under the category of edible oil regardless of the size of its packaging while according to Justice Banumathi coconut oil, when it is packaged in small containers, would be classified as hair oil, regardless of whether it has been labelled as edible oil by the manufacturers.

On Arbitration

A bench of Justice Ranjan Gogoi and Justice R. Banumathi, has observed that in the absence of arbitration agreement, the court can refer parties to arbitration only with written consent of parties either by way of a joint memo or joint application and not on oral consent given by their counsels.[13]

On Re-assessment of Income of Amitabh Bachchan for the year 2002-03

On May 2016, the bench comprising Justice Ranjan Gogoi and Justice PC Pant quashed a 2012 Bombay High Court order that dismissed CIT’s power to re-assess income of Bollywood actor Amitabh Bachchan that he allegedly had from the popular TV quiz show, Kaun Banega Crorepati.

In October 2002, Bachchan filed returns showing income of Rs 14.99 crore for 2002-03. On March 31, 2003, he filed revised returns, declaring total income for 2002-03 in which he claimed expenses at 30% ad hoc amounting to Rs 6.31 crore, showing his income at Rs 8.11 crore. In March 2005, Income Tax Department determined the actor’s income at Rs 56.41 crore for the assessment year 2002-03.

Dismissal of advocate Kamini Jaiswal’s petition seeking a Special Investigation Team (SIT) probe

The Supreme Court bench led by Justice Ranjan Gogoi on JANUARY 24, 2018 dismissed Advocate Kamini Jaiswal’s petition seeking a Special Investigation Team (SIT) probe into the incidents of attacks on then JNU student union leader Kanhaiya Kumar 15 and 17 February 2016, at Patiala House Court while he was escorted to courtroom in a sedition case.

On Govindaswamy vs State of Kerala 

23-year-old Soumya, an employee of a Kochi shopping mall, was assaulted by one Govindaswamy in an empty ladies’ coach of Ernakulam-Shoranur passenger train on February 1, 2011. She was allegedly pushed off from the slow-moving train, carried to a wooded area and subsequently raped. She succumbed to injuries at the Government Medical College Hospital, Thrissur, on February 6, 2011. Govindaswamy was awarded death sentence under section 302 IPC for committing murder by a trial court and the order was upheld by Kerala high court on December 17, 2013.

On 15 September 2016, the Apex Court Bench comprising Justice Ranjan Gogoi, Justice Prafulla C. Pant and Justice Uday Umesh Lalit set aside the death penalty awarded for the Offence of Murder (S.302) and sentenced Govindaswamy to a maximum of Life imprisonment for Rape (s.376 IPC) and other offences of causing bodily injuries.

However, to hold that the accused is liable under Section 302 IPC what is required is an intention to cause death or knowledge that the act of the accused is likely to cause death. The intention of the accused in keeping the deceased in a supine position, according to P.W. 64, was for the purposes of the sexual assault. The requisite knowledge that in the circumstances such an act may cause death, also, cannot be attributed to the accused, inasmuch as, the evidence of P.W. 64 itself is to the effect that such knowledge and information is, in fact, parted with in the course of training of medical and para-medical staff. The fact that the deceased survived for a couple of days after the incident and eventually died in Hospital would also clearly militate against any intention of the accused to cause death by the act of keeping the deceased in a supine position. Therefore, in the totality of the facts discussed above, the accused cannot be held liable for injury no.2. Similarly, in keeping the deceased in a supine position, intention to cause death or knowledge that such actions may cause death, cannot be attributed to the accused. We are, accordingly, of the view that the offence under Section 302 IPC cannot be held to be made out against the accused so as to make him liable therefor. Rather, we are of the view that the acts of assault, etc. attributable to the accused would more appropriately attract the offence under Section 325 IPC. We accordingly find the accused-appellant guilty of the said offence and sentence him to undergo rigorous imprisonment for seven years for commission of the same…

…While the conviction under Section 376 IPC, Section 394 read with Section 397 IPC and Section 447 IPC and the sentences imposed for commission of the said offences are maintained, the conviction under Section 302 IPC is set aside…

Following the judgement of setting aside the death sentence of the accused in the said Govindaswamy vs State Of Kerala case, Justice Rajan Gogoi and his bench were severely criticized by members of the public, political leaders including Chief Minister of Kerala, Pinarayi Vijayan, Law Minister of Kerala, A.K. Balan, Senior CPI(M) leader V. S. Achuthanandan, media members and legal luminaries including Supreme Court lawyer Kaleeswaram Raj and Supreme Court Justice (retd) Markandey KatjuJustice (retd) Katju had called the Supreme Court’s September 15 verdict a “grave error” not expected of “judges who had been in the legal world for decades”. The blog dated September 17 had castigated the Bench for believing “hearsay evidence” that Soumya jumped off the train instead of being pushed out by Govindaswamy. In the blog, Justice (retd) Katju had written,

Even a student of law in a law college knows this elementary principle that hearsay evidence is inadmissible.

In response, the SC bench led by Justice Rajan Gogoi decided to convert that blog by Justice Markandey Katju into a review petition and asked him to personally appear in court to debate. On November 11, 2016, he appeared in the court and submitted his arguments. The Court then dictated the order rejecting the review petition and issued contempt of court notice to him stating that “Prima facie, the statements made seem to be an attack on the Judges and not on the judgment”. On January 6, 2017, The Supreme Court has accepted Justice Markandey Katju’s apology and closed the contempt proceedings against him.

On people who are originally inhabitants of the state of Assam

On 5 December, 2017 , while disposing off a Writ Petition (Civil) No. 1020 of 2017, Kamalakhya Dey Purkayastha & Others Versus Union of India & Others clubbed with similar other petitions seeking clarification as to the meaning of people who are originally inhabitants of the state of Assam , a term which appears in a schedule to the Citizenship (Registration Of Citizens And Issue Of National Identity Cards) Rules, 2003 pertaining to special provision as to manner of preparation of National Register of Indian Citizen in state of Assam, the bench comprising Justices Ranjan Gogoi & Rohinton Fali Nariman observed that

The exercise of upgradation of NRC is not intended to be one of identification and determination of who are original inhabitants of the State of Assam….. Citizens who are originally inhabitants/residents of the State of Assam and those who are not are at par for inclusion in the NRC.

The National Register of Indian Citizens or in short the NRC, at its root, comprises of all the Local Registers of Indian Citizens containing details of Indian citizens usually residing in a village or rural area or town or ward or demarcated area (demarcated by the Registrar General of Citizen Registration) within a ward in a town or urban area.

The Citizenship (Registration of Citizens and Issue of National Identity Card) Rules, 2003 were amended in November 2009 and March, 2010 for preparation of National Register of Citizens by inviting applications from all the residents in Assam for updation of the old National Register of Citizens (NRC) 1951 in Assam based on relevant records. In order to undertake updating of NRC in all districts of Assam, pilot projects for updating of NRC in two blocks (one each in Kamrup and Barpeta districts) were started in June, 2010. Subsequently, pilot projects were stopped due to law and order problems. A second attempt to update the register for Assam was made by the Government of India through issuing a Gazette Notification in December 2013.

On 17 December 2014, the bench comprising Justices Ranjan Gogoi & Rohinton Fali Nariman mandated the Government of India to complete the finalization of final updated NRC for the entire state of Assam by 1st January 2016.

-MICROSTAT, NEW DELHI, OCTOBER 03, 2018

Supreme Court decriminalizes homosexuality

SC decriminalizes homosexuality, says history owes LGBTQ community an apology

The Supreme Court decriminalised homosexuality with a prayer to the LGBTQ (Lesbian, gay, bisexual, transgender, and queer) community to forgive history for their “brutal” suppression.

A five-judge Constitution Bench, led by Chief Justice of India (CJI) Dipak Misra unanimously held that criminalisation of private consensual sexual conduct between adults of the same sex under Section 377 of the Indian Penal Code is clearly unconstitutional.

The court, however, held that Section 377 will apply to “unnatural” sexual acts like bestiality. Sexual acts without consent continues to be a crime under the Section.

In four concurring opinions, the Bench declared the 156-year-old “tyranny” of Section 377 as “irrational, indefensible and manifestly arbitrary”.

People celebrate after the Supreme Court verdict of decriminalising gay sex and revocation of Section 377, in New Delhi on September 6, 2018.The prayer for forgiveness came from Justice Indu Malhotra, the lone woman judge on the Constitution Bench. “History owes an apology,” she reached out to the rainbow spectrum.

Justice D.Y. Chandrachud called Section 377 “Macaulay’s legacy”, which continued for 68 years despite a liberal Constitution because of the manifest lethargy of lawmakers. He said the Section shackled the human instinct to love. It had been a reason for tragedy and anguish. “It is difficult to right a wrong by history. But we can set the course for the future,” he wrote in his separate opinion.

‘It is just a step’

Justice Chandrachud said decriminalisation of homosexuality was just a step. This case was about people wanting to live with dignity. Citizens cannot be pushed into obscurity by a colonial law.

Section 377 discriminates against a minority solely for their sexual orientation. It violates the right of the LGBTIQ community to “equal citizenship and equal protection of laws”. The court held that bodily autonomy is individualistic. Choice of partner is part of the fundamental right to privacy.

The Bench set aside the 2013 judgment of the court in the Suresh Koushal case.

Legal experts said this was a much-needed self-correction of a past judicial wrong committed on the LGBTQ community. The verdict would become the foundation for members of the community to seek individual rights like.

The 2013 judgment upheld Section 377 and set aside the reprieve won by the LGBTQ community through the Delhi High Court verdict of 2009, which decriminalised homosexuality. It had cast the community back into the shadows as “unconvicted felons”.

The court declared that once a nine-judge Bench has declared privacy to be a part of the fundamental right to life, nothing could stop the Supreme Court from upholding bodily autonomy and sexual orientation as fundamental rights too.

‘LGBTQ community possesses equal rights’

The CJI, in his separate opinion shared with Justice A.M. Khanwilkar, held that the LGBTQ community possesses equal rights as any other citizen. Any societal repression of their innate and biological sexual orientation is against the fundamental right to free expression. Homosexuality is their order of nature.

The CJI said the community needs the rainbow of hope for the sake of humanity. They should be allowed to live with dignity and without pretence about their identity. This verdict is the beginning of a journey towards greater dignity, equality and liberty.

‘Fundamental right to live with dignity’

Justice Rohinton F. Nariman, in his separate opinion, held that homosexuals have a fundamental right to live with dignity. They are entitled to be treated as human beings and should be allowed to imbibe the spirit of fraternity.

Justice Nariman embraced the ”Yogyakarta” Principles, which recognise freedom of sexual orientation and gender identity as part of human rights, saying they “animate” the right to equality and equal protection by laws.

Justice Chandrachud said medical science should stop being a party to the stigmatisation of homosexuals by “trying to cure something that is not even a disease”. Medical professionals and counsellors should tweak their own attitude. Stigmatisation seriously affects members of the LGBTQ community.

Justice Chandrachud pointed out how variations in sexual orientation have become a reason for blackmail on the Internet. Quoting Lenoard Cohen, he described how “shadows of a receding past” still controlled the quest of LGBTQ community for fulfillment.

NEW DELHI, SEPTEMBER 06, 2018

Supreme Court orders floor test tomorrow in Karnataka

Supreme Court orders floor test tomorrow in Karnataka

The Supreme Court on Friday ordered that a floor test be conducted in the Karnataka Assembly on Saturday at 4 p.m. for BJP’s B.S. Yeddyurappa, who was sworn-in on Thursday as Chief Minister, to prove his majority.

Mr. Yeddyurappa cannot take any major decision before the floor test, the court said. The pro-tem Speaker will take decisions in accordance with the law on floor test.

Supreme CourtThe court also said no Anglo-Indian MLA can be nominated to the Assembly.

The court was hearing a petition filed by the post poll Congress-JD(S) combine against the decision of Governor Vajubhai Vala to invite the BJP to form a government and to nominate an Anglo-Indian member to the Assembly.

Yeddyurappa recommends to Governor to convene House at 11 a.m.

Chief Minister Yeddyurappa, who attended an emergency cabinet meeting along with Chief Secretary Ratna Prabha, has decided to recommend to Governor Vajubhai Vala to convene the Assembly at 11 a.m. on Saturday.

Among others present at the meeting was Legislative Assembly Secretary N Murthy.

The other recommendation made from the State government are the names for the pro-tem speaker. Sources said eight-time MLA R V Deshpande of Congress, seven-time MLA Umesh Katti of BJP and six-time MLA Vishweshwar Kageri of BJP were recommended to the office of the Governor. The name of the pro-tem Speaker will be announced by Mr. Vala later.

Meanwhile in Goa, Congress MLAs led by CLP leader Chandrakant Kavlekar met Governor Mridula Sinha at Raj Bhavan on Friday, reports our Goa correspondent Prakash Kamat. They had a letter seeking to be invited to form government, as the largest party with 16 MLAs.

In Bihar, Amarnath Tewary tells us that Tejaswi Yadav along with RJD, Congress, HAM(S) and CPI-ML MLAs have set off to the Raj Bhavan to meet Governor Satya Pal Malik to stake claim to form government in the State as being single largest party.

Mr. Yadav, who went inside to meet the Governor along with three other MLAs, said Mr. Malik had heard them seriously. “We’ve submitted the support of 111 MLAs of the single largest party and block. The Governor said he would think over it and let us know about his decision,” said Mr. Yadav. “If we get invited I would like to say we’ll pass the floor test comfortably. A lot of JD(U) MLAs are in touch with me…we’d easily get the magic figure of 122 MLAs to form the government,” he added.

“We welcome the Supreme Court order. Now BJP has been exposed in the country,” he said.

Last year, in the Goa Assembly polls, the BJP had had come second with 13 seats while the Congress had emerged as the single largest party with 17 seats. However, with some swift political manoeuvring, the BJP struck a post-poll alliance to form the government.

During the 2015 Assembly election in Bihar, the RJD was in a grand alliance with Nitish Kumar’s Janata Dal-United (JD-U) and the Congress. Though the RJD had 80 MLAs, nine more than Mr. Kumar’s party, it gave the CM’s position to the JD(U) as part of a pre-poll understanding. However, Mr. Kumar switched sides last July and formed the government with the help of the BJP’s 53 MLAs.

Governor acted as per Modi, Shah directions: Siddaramaiah

Former Chief Minister Siddaramaiah says the Governor’s conduct indicates that his decision is as per directions of Prime Minister Narendra Modi and BJP president Amit Shah. “Giving 15 days to prove majority is unprecedented in the history of independent India,” he says. “It shows his collusion with the BJP.”

Who is the pro-tem Speaker?

The floor test will be conducted by a pro-tem Speaker.

The pro-tem Speaker performs the duties of the office of the Speaker from the commencement of the sitting of the Assembly till the election of a Speaker.

The pro-tem Speaker will be the senior-most MLA, that is, the one with the most number of terms as a member of the House. If there is a tie, the one with the earliest tenure will be chosen.

No official announcement has been made yet about who the pro-tem Speaker is.

Our stand vindicated: Rahul Gandhi

Congress president Rahul Gandhi says, “The Supreme Court’s order on Karnataka floor test vindicates our stand that Governor acted unconstitutionally.”

Confident of proving majority, says Yeddyurappa

Mr. Yeddyurappa says he is confident of proving his majority in the Assembly.

BJP’s Shobha Karandlaje says, “The party will abide by the Supreme Court order and “we are confident of winning the floor test tomorrow.” She adds that many of the MLAs who do not want the JD(S)-Congress combination are in touch with them.

SC has given a historic verdict: Abhishek Manu Singhvi

Soon after the apex court order, Mr. Singhvi told journalists outside the court, “It is a historic verdict. Many important directions have been given, one of them being that floor test has to be conducted at 4 p.m. tomorrow under a pro-tem speaker.”

Supreme Court orders floor test

The Supreme Court orders  that a floor test be conducted tomorrow (Saturday) at 4 p.m in the Karnataka Assembly.

It says all MLAs will vote tomorrow. Pro-tem Speaker will decide what manner the floor test should be held.

Mr. Yeddyurappa should not take any major policy decisions in the meantimes, says the court.

Rohatgi opposes immediate floor test

Senior advocate Mukul Rohatgi, who is appearing for Mr. Yeddyurappa, says:

 “I am disputing the signatures of Congress members. A floor test will show how many signatures they really had. The Governor never received a signed letter.

“I dont think floor test should be held tomorrow. Pro-tem speaker has to be appointed, etc. People should be given a reasonable time. Not tomorrow. Not fair. I have to also get my flock. Their people are locked up, not mine.”

Floor test an inevitability, says Singhvi

Mr. Singhvi states that conducting a floor test is an “inevitability.”

He says: “But B.S. Yeddyurappa declares he is the single largest party in his May 15 letter to Governor even before EC declares the election.

“B.S. Yeddyurappa says ‘I with an unknown X’ which he does not name ‘will form a majority.’ He had to say ‘I with A,B,C have crossed majority mark.

”Congress-JDS specified 117 with all details. Can you say the Governor applied his mind by giving B. S. Yeddyurappa the opportunity to form a government?

”Yeddyurappa tells the Governor, ‘give me some time. I have 104. Give me a small window, with that I will ‘manufacture’ a majority’.”

Floor test on Saturday an option, observes SC

Justice Sikri says, ” Ultimately this is a number game.”

He adds: “An alternative is floor test and tomorrow itself. We don’t give time for anybody.

“The issue has to be decided. Let us have the floor test and issue on question of law will be decided later here.”

Congress-JD(S) an unholy alliance: Mukul Rohatgi

Hearing in Supreme Court begins on a  petition was filed by the Congress and the JD(S) against the decision of the Governor to invite the BJP to form a government.

Mr. Mukul Rohatgi reads out the May 15 letter saying since there is no pre-poll alliance and as single largest party, the BJP can form a govt.

“The Congress-JD(S) is an unholy alliance. The Sarkaria Commission is only guidelines. Finally it is the Governor’s discretion to form a stable and popular government. We are the single largest party with additional support.”

Advance date for floor test?

What could possibly happen today?

Supreme Court of India. File

The court wants to check whether Mr. Yedyurappa gave sufficient material to the Governor for the latter to have reasonably felt that the BJP leader is the best option and not the post poll Congress-JD(S) combine.

One of the possibilities is that the court would advance the date for a floor test and leave the party with the most number of members to form a government. The BJP has 104 members while the Congress and the JD(S) jointly have 117 members, which is well past the majority mark.

Congress MLAs housed at Park Hyatt in Hyderabad

Congress MLAs are currently being housed at Park Hyatt in Hyderabad.

Congress MLAs are currently being housed at Park Hyatt in Hyderabad.

The Congress, with fears about poaching by the BJP, on Friday brought its  Karnataka MLAs to Hyderabad.

Sources said they were being accommodated in two five star hotels – Taj Krishna and Park Hyatt – which are owned by a senior Congress leader.

Where are the MLAs?

Meanwhile, suspense continues regarding the whereabouts of the Congress and JD(S) MLAs.

Party national Secretary General Kunwar Danish Ali confirmed to that all 37 MLA elects would travel by road to Kochi on Thursday night itself. But conflicting reports say they left Kochi and are currently at Hyderabad.

-MAY 18, 2018

Supreme Court rules; Judge Loya died of natural causes

Judge Loya died of natural causes, rules SC while dismissing pleas seeking probe into his death

Judge B.H. Loya died of natural causes three years ago and there is “absolutely no merit” in the public interest litigation (PIL) petitions alleging foul play in his death, the Supreme Court concluded on Thursday.

The Supreme Court foreclosed any future questions on Judge Loya’s demise, saying its verdict spelt the end of any further litigation on the circumstances surrounding his death.Supreme Court
Conclusion based on three aspects

A Bench of Chief Justice of India (CJI) Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud based its conclusion on three aspects: One, the “indisputable” written statements given by the four judges and colleagues of Judge Loya to the Maharashtra police; two, there is nothing wrong when friends and colleagues share the same room at the guest house, Ravi Bhawan; and three, Judge Loya had called his wife on November 30, 2014, telling her he was staying at Ravi Bhawan.
The statements by the judges were made to the police, which launched a “discreet enquiry” in 2017 after articles appeared in a magazine raising suspicions about Judge Loya’s death in Nagpur in November 2014.

Articles appeared in a magazine raised suspicions about Judge Loya’s death in Nagpur in November 2014. 

The verdict traces the journey of Judge Loya and his fellow judges to Nagpur to attend a wedding, their itinerary there and how they stayed in one room in Ravi Bhawan.

Judge Loya, at the time of his death was the CBI Special Judge hearing the 2005 Sohrabuddin Sheikh encounter case in which BJP president Amit Shah was an accused. Mr. Shah was discharged from the case by Judge Loya’s successor in office.

PILs a “vituperative assault on judiciary”

Justice Chandrachud, who wrote the verdict, described the PILs as a “vituperative assault on the judiciary”. He said they were an example of misuse of judicial process and time when hundreds of litigants are waiting for their personal liberty.

Justice Chandrachud observed that the petitioners used the Supreme Court and their PILs as platforms to malign the Bombay High Court judiciary and the judicial officers who were with Judge Loya at the time of his death. At one point, the petitioners even wanted to “cross-examine” the judges who were with Judge Loya on their statements that said he died of a cardiac arrest.

Justice Chandrachud at one point wondered on the irony of why the petitioners first approached the Bombay High Court if they had no faith in its judges.

The judgment said the PILs were a “serious attack on the judiciary” and an attempt to “seriously scandalise” judges.

The PILs were an attempt to satisfy personal agendas and score over political rivals. The aura created by the petitioners that the PILs were meant to protect the independence of the judiciary – by seeking a probe into the death of Judge Loya – was a mere “facade”. The truth was that the petitioners wanted to sensationalise the death of a judge. The PILs were only a “veiled attempt to destroy the credibility of judiciary” with “scurrilious” claims.

‘Attempt to undermine public faith in judiciary’

To claims by petitioners that “one man” (Amit Shah) was controlling the judiciary was nothing but an attempt to undermine public faith in the judiciary and credibility of judicial process, the judgment said.

Justice Chandrachud said the petitioners should not use the courts to settle political scores. “Political rivalries should be settled in that great hall of democracy… Rule of law should not be reduced to a charade,” he observed.

The apex court said the petitioners’ claims and aspersions amounted to criminal contempt. But Justice Chandrachud said the court did not want to initiate contempt proceedings as judicial process should not be respected out of fear of contempt, but it is to be based on moral authority.

The verdict referred to how two of the judges on the apex court Bench, Justices Khanwilkar and Chandrachud, were even asked to recuse from hearing the Loya PILs as they were from the Bombay High Court and knew the judicial officers who were with Judge Loya.

Justice Chandrachud said they both decided to not “abdicate their duties” as they only answer to their judicial conscience and higher values.

“Industry of vested interests”

Justice Chandrachud described how PIL litigation had been brazenly misused to become an “industry of vested interests”.

The court flagged the avalanche of PILs entering the Supreme Court and the High Courts, creating arrears and severely taking a toll on court work.

The court dismissed the Loya PILs, holding that there was no reasonable suspicion to show that Judge Loya’s death was unnatural.

-NEW DELHI, APRIL 19, 2018

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

Supreme Court allowed passive euthanasia

Supreme Court allowed passive euthanasia 

The Supreme Court allowed passive euthanasia, or withholding treatment essential to life for a terminally-ill patient on Friday. Following is the procedure fixed by the Supreme Court which is to be adopted for making and executing of an Advance Directive or “living Will” by a person for withdrawal of medical treatment if he is suffering from an incurable disease with no chance of recovery to prevent pain and suffering

Supreme CourtWho can execute the Advance Directive and how?

It can be executed only by an adult of a sound and healthy state of mind. It must be voluntarily executed and without any coercion or compulsion. It shall be in writing clearly stating as to when medical treatment may be withdrawn or no specific medical treatment shall be given which will have the effect of delaying the process of death that may otherwise cause pain and suffering.

What should it contain?

It should clearly indicate the decision relating to the circumstances in which withdrawal of medical treatment can be resorted to. It should mention that the executor may revoke the authority at any time. It should specify the name of a guardian or close relative who, in the event of the executor becoming incapable of taking a decision, will be authorised to give consent for withdrawal of treatment.

How should it be recorded and preserved?

The document should be signed by the executor in the presence of two attesting witnesses and countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC). The witnesses and JMFC shall record their satisfaction that the document has been executed voluntarily and without any coercion. The JMFC shall preserve one copy of the document in his office and shall forward one copy to the registry of the jurisdictional district court for being preserved. The JMFC shall inform the immediate family members of the executor, if not present at the time of execution. A copy shall be handed over to the competent officer of the local Government.

When and by whom can it be given effect to?

In the event, the executor becomes terminally ill with no hope of recovery and cure of the ailment, the treating physician shall ascertain its authenticity from the jurisdictional JMFC.

If the physician is satisfied that the instructions need to be acted upon, he shall inform the executor or his guardian /close relative about the nature of the illness, the availability of medical care and consequences of alternative forms of treatment and the consequences of remaining untreated.

The hospital shall then constitute a Medical Board consisting of the head of the treating department and at least three expert doctors with at least twenty years experience who, in turn, shall visit the patient in the presence of his relative and form an opinion whether medical treatment should be withdrawn or not.

If Medical Board certifies that the instructions be carried out, the hospital shall inform the collector about the proposal. The collector shall then immediately constitute another Medical Board comprising the Chief District Medical Officer and three expert doctors. The board shall examine the patient and may allow withdrawing treatment after ascertaining the wishes of the executor or his family members if the patient is not in a position to communicate.

The board shall convey the decision to JMFC before allowing to withdraw the treatment. The JMFC shall visit the patient and, after examining all aspects, may permit to implement the directive.

What if permission is refused by the Medical Board?

If permission is refused by the Medical Board, it would be open to the executor or his family members or even the treating doctor or the hospital staff to approach HC. The court shall take a call on the plea at the earliest.

-TNN | March 09, 2018

CJI Dipak Misra reaches out to four senior colleagues

Chief Justice of India Dipak Misra reaches out to four senior colleagues

CJI Dipak Misra on Tuesday reached out to four of his senior most colleagues for a discussion on the issues bothering the judicial administration of the Supreme Court.

Breaking the ice, CCJI Dipak Misrahief Justice Misra invited Justices Jasti Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph to his official chamber in the Supreme Court for a discussion in the morning. The discussion will continue on January 17.

This is the first time in the past three days since the four judges held a press conference, the CJI has met them for a discussion on issues flagged by the foursome in an unprecedented press conference on January 13. At the press meet, they said they met the CJI in the morning to discuss the allocation of the Loya petitions, but the Chief Justice had not “budged”.

Breaking the ice, Chief Justice Misra invited Justices Jasti Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph to his official chamber in the Supreme Court for a discussion in the morning. The discussion will continue on January 17.

A letter written by them to the CJI, expressing their “anguish about recent judicial orders and an erosion in the judicial independence of the Supreme Court” was circulated at the press meet.Their efforts to convince the CJI to take corrective measures failed, forcing them to go public.

The letter said the Chief Justice’s authority as ‘master of the roster’ to decide which Bench should decide which case did not make him a “superior authority”. “The Chief Justice is only the first amongst equals – nothing more or nothing less,” the letter said.

A letter written by them to the CJI, expressing their “anguish about recent judicial orders and an erosion in the judicial independence of the Supreme Court” was circulated at the press meet.Their efforts to convince the CJI to take corrective measures failed, forcing them to go public. The letter said the Chief Justice’s authority as ‘master of the roster’ to decide which Bench should decide which case did not make him a “superior authority”. “The Chief Justice is only the first amongst equals – nothing more or nothing less,” the letter said.

-PTI, NEW DELHI, JANUARY 16, 2018

Lok Sabha passes bill to hike salaries of judges

Lok Sabha passes bill to hike salaries of judges

The Lok Sabha (Lok Sabha passed a bill to hike the salaries of judges of the Supreme Court and High Courts. The Bill proposes to hike the salary of the Chief Justice of India to ₹ 2.80 lakh a month, and that of judges of the Supreme Court and Chief Justices of High Courts to ₹ 2.5 lakh a month. Judges of High Courts will draw a salary of ₹ 2.25 lakh a month once this Bill becomes law.

The Rajya Sabha has to pass the Bill by Friday, the last day of this session, failing which it will spill on to the budget session.

Separation of powers

The salary hike, in line with the recommendations of the 7th Pay Commission for officers of all-India services, will come into force with effect from January 1, 2016.

The discussion on the Bill saw members express concern over what they saw as threats to separation of powers, calls for hiked salaries for MPs, and even for reservation in the judiciary.

All-India Judicial Service

Replying to the debate, Union Law Minister Ravi Shankar Prasad expressed his support for the idea of an All-India Judicial Service on the lines of the Indian Administrative Service for drawing the best legal minds to the judiciary. He said reservation could become a reality if such a service comes up.

He expressed concern over the Supreme Court setting aside the National Judicial Appointments Commission on the plea that the presence of the Law Minister would mean a judge appointed through the process may not be fair when hearing a case against the government. Mr. Prasad said some of the finest judges were appointed in times when the Law Minister was part of the process of appointment.

Making a strong pitch for separation of powers between the legislature, executive and judiciary, Mr. Prasad said this was part of the basic structure of the Constitution none could violate, adding that only those who were accountable could legislate. “Governance and accountability go together,” he said.

He also referred to the pendency of judges’ vacancies, adding that the government could fill the vacancies only when the collegium made recommendations.

He said there were six vacancies in the Supreme Court and while the process was on to fill 129 vacancies in High Courts, there were 269 vacant posts of High Court judges for which no recommendations by the collegium had been received. “It is the responsibility of the judiciary to fill these,” Mr. Prasad said.

NEW DELHI, JANUARY 04, 2018 

Collegium and transparency-By Suhrith Parthasarathy

Collegium and transparency

By- Suhrith Parthasarathy

On October 3, the Supreme Court’s collegium published a resolution promising to hereafter make public, on the court’s website, its various decisions, including its verdicts on persons nominated for elevation as judges to the high courts, its choices of candidates for elevation to the Supreme Court,and its decisions on transfer of judges between different high courts. These results, the resolution added, will be accompanied by the reasons underpinning the collegium’s choices.

At first blush, the move strikes us as both necessary and important, as bringing transparency into a system that has been notorious for its opacity. But when probed deeper, on even a bare reading of the first set of publications released by the collegium, it becomes clear that the initiative adds, at best, a veneer of respectability to a mechanism that lacks any constitutional basis.

Perplexing reasons

Consider some of the reasons professed thus far. In the cases of A. Zakir Hussain and Dr. K. Arul, candidates nominated for elevation to the Madras High Court, the collegium has verbatim published the following statement of rejection: “keeping in view the material on record, including the report of Intelligence Bureau [IB] he is not found suitable for elevation to the High Court Bench.” The details of what the IB’s reports might contain and the apparent materials on record remain concealed. Yet, threadbare as these reasons might sound, those offered for rebuffing the nomination of Vasudevan V.N., a judicial member of the Income Tax Appellate Tribunal, are particularly perplexiCollegiumng.

“While one of the two consultee-colleagues has offered no views about his suitability, the other colleague has not found him suitable for elevation,” the report reads. “As per record, his name was also recommended by the Collegium of the Calcutta High Court on 28.11.2016 and the Government of West Bengal has expressed its disagreement. Record placed before us also shows that the proposal for his elevation initiated on a previous occasion by the Collegium of the Bombay High Court was rejected by the Supreme Court Collegium on 1st August 2013. A complaint pointing out this fact has also been received in the office of the Chief Justice of India. Keeping in view the views of the consultee judges and the material on record the Collegium is of the considered opinion that Shri Vasudevan V. Nadathur is not suitable for elevation to the High Court Bench.”

More questions

The collegium, ever since its inception, following the Supreme Court’s judgment in what is known as the Second Judges Case (1993) has been enveloped by a sense of the hugger-mugger. The present revelations, much opposed to their perceived objective, scarcely make the system more transparent. In Mr. Vasudevan’s case, for example, we don’t know which of the “consultee-judges (presumably one of the two senior-most Supreme Court judges, in this case, who have previously served at the Madras High Court) objected to his elevation, and why the judge interviewed found him unsuitable. Also peculiar is the collegium’s express noting that Mr. Vasudevan had previously been recommended by two different high court collegia, which would mean that, in all, the chief justices of three high courts, at different points of time, found him worthy of selection. But, we’re now left wondering how the view of one “consultee judge” — whose reasons aren’t provided to us — can override the opinion of three chief justices of three different high courts.

These issues concerning the system employed to appoint judges to the Supreme Court and the high courts — even if they often involve matters of inscrutable procedure — are of particular salience. The judiciary, after all, was regarded by the Constitution’s framers as central to the social revolution that the document was meant to herald. Indeed, as the historian Granville Austin recounted in his book, The Indian Constitution: Cornerstone of a Nation, the Constituent Assembly brought “to the framing of the Judicial provisions of the Constitution an idealism equalled only by that shown towards Fundamental Rights.” It saw the judiciary as critical to “upholding the equality that Indians had longed for during colonial days, but had not gained”.

Interpreting consultation

To this end, to ensure that judges would be insulated from political influence, the assembly agreed on a consultative process of appointing judges, a “middle course,” as B.R. Ambedkar described it. The Constitution avoided the cumbersome process of legislative interference and the undemocratic provision of a veto to the Chief Justice, and vested in the President the power to both make appointments and transfer judges between high courts. The President, who would act on the advice of the council of ministers, was, however, required to compulsorily consult certain authorities, including the Chief Justice of India (CJI), and, when making appointments to a high court, the chief justice of that court.

Originally, in 1977, in Sankalchand Sheth’s case, when interpreting the word “consultation,” the Supreme Court ruled that the term can never mean “concurrence”. Hence, the CJI’s opinion, the court ruled, was not binding on the executive. But nonetheless the executive could depart from his opinion only in exceptional circumstances, and, in such cases, its decision could well be subject to the rigours of judicial review. This seemed like a perfectly sound balance.

And indeed, in 1981, in the First Judges Case, the court once again endorsed this interpretation, albeit partly. But twelve years later, in the Second Judges Case, the court overruled its earlier decisions. It now held that “consultation” really meant “concurrence”, and that the CJI’s view enjoys primacy, since he is “best equipped to know and assess the worth” of candidates. But, the CJI, in turn, was to formulate his opinion through a body of senior judges that the court described as the collegium.

In 1998, in the Third Judges Case, the court clarified its position further. The collegium, it said, will comprise, in the case of appointments to the Supreme Court, the CJI and his four senior-most colleagues — and, in the case of appointments to the high courts, the CJI and his two senior-most colleagues. Additionally, for appointments to the high courts, the collegium must consult such other senior judges serving in the Supreme Court who had previously served as judges of the high court concerned. (On whether these views of the consultee-judges are binding on the collegium or not, the judgments are silent.)

What’s clear, though, is that these dizzying requirements maintain no fidelity whatsoever to the Constitution’s text. Yet the court has been keen to hold on to this power. Indeed, when the Constitution was altered, through the 99th constitutional amendment, and when the collegium was sought to be replaced by the National Judicial Appointments Commission — a body comprising members of the judiciary, the executive and the general public — the court swiftly struck it down. It ruled, in what we might now call the Fourth JudgesCase (2015), that the primacy of the collegium was a part of the Constitution’s basic structure, and this power could not, therefore, be removed even through a constitutional amendment.

But perhaps mindful of some of the hostility that the system was facing, the judgment also promised to “consider introduction of appropriate measures”, to improve the “collegium system”. The new resolution, it might well seem, is an effort towards this end. Unfortunately, though, the publications only serve to further underscore the deficiencies in the appointment process, which remains, as Justice P.N. Bhagwati once described it, “a sacred ritual whose mystery is confined only to a handful of high priests”.

(Suhrith Parthasarthy is an advocate practicing in the Madras High Court)

Courtesy-The Hindu, NOVEMBER 01, 2017

Link- http://www.thehindu.com/opinion/lead/collegium-and-transparency/article19956961.ece?homepage=true