On Friday, four senior Supreme Court judges chose to break norms and go public with their grievances against the Chief Justice of India (CJI) Dipak Misra. Since then, some have said that their tipping point was the decision by the CJI to assign the case regarding judge BH Loya's death to a bench headed by a relatively junior judge.
Though the Loya case was not mentioned in the letter which the four senior (Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph) wrote to the CJI, during the press conference, when one of the media persons asked the judges whether their grievance about allotment of cases also related to the judge Loya case, the judges nodded in the affirmative. Since then, a great deal of air time, digital space, and newsprint has been devoted to the Loya case.
To hear the Congress, CPI, a section of the media, and certain legal luminaries supporting the four dissenting judges say it, the survival of our democracy and higher judiciary depended on which bench heard the judge Loya case. Except for an article in Caravan, no case has been made of foul play in the death of judge Loya.
So now we have the bizarre situation of judge Loya's 21-year-old son Anuj holding a press conference to announce that there was no foul play in his father's death (judge Loya died of cardiac arrest on 1 December, 2014), even as a section of influential people don't want to believe him and want the Bombay High Court and Supreme Court to institute an inquiry.
Anuj, at the Sunday press conference said: “Since the past few days, due to media reports, our family is facing a lot of pain. We have no allegation against anyone. We are really pained, we are already trying to get out of this thing… Please I request you people, please do not harass us or trouble us.” He told PTI, “My father died of natural causes, our family is convinced it was a natural death… I have made myself clear that we do not have a suspicion… It was a natural death.”
That should have ended the controversy, but it didn’t. While arguments are being made that Anuj made this statement “under pressure”, statements made by Anuj’s aunt over her suspicions about judge Loya’s death and other charges relating to that are still being taken at face value. Judge Loya's death evokes a great deal of curiosity even three years later because when he passed away he was handling the Sohrabuddin Sheikh case, in which BJP president Amit Shah was one of the accused. Any suggestion of foul play in Sheikh's death thus has serious implications, both political and legal.
The Caravan story entitled: A Family Breaks its silence: Shocking Details Emerge in Death of Judge Presiding over Sohrabuddin’s trial was rebutted point by point and almost conclusively rubbished by two investigative reports by The Quint (Judge Loya’s Death: Caravan Questions Shoddy Records, Testimonials) and by The Indian Express (CBI judge BH Loya’s death in 2014: Nothing suspicious, say two Bombay HC Judges who were at hospital). However, PILs seeking inquiry into judge Loya's death were filed in Bombay High Court and Supreme Court by Bombay Lawyers Association and Tehseen Poonawalla, brother-in-law of Robert Vadra.
By going public, the four senior judges wittingly or unwittingly allowed themselves to be dragged into political domain, onto debates in TV studious, corridors of court rooms, government offices, offices of political parties, residences of political leaders, and tea shops. This is not a healthy development.
The issue emerging from the public debate is about which judge or bench is competent to hear the Loya case. What the argument that only one of the five top judges — either the CJI or one of the senior judges who virtually revolted against him should hear the case — means is open to public interpretation. Incidentally, Rahul Gandhi is demanding much the same. As of now, the case is being heard by Justice Arun Mishra, who is 10th in the pecking order of 25 Supreme Court judges.
The argument was that Justice Mishra did not have the requisite seniority and experience to hear such a case and the CJI’s decision as ‘master of the roster’ was a case of ‘selective court’ or ‘bench fixing’. It should be noted here that the public places its trust and faith in the institution of the Supreme Court and not individual judges (irrespective of their seniority). By questioning the competence of judges on the basis of seniority, public faith in the institution of the Supreme Court has been dented.
A report published in The Times of India entitled: Super Sensitive cases being given to junior SC Judges for last 20 years noted 15 such cases (Rajiv Gandhi assassination case, Bofors, LK Advani’s trial in Babri Mosque demolition, Sohrabuddin Sheikh encounter case, Best Bakery case, BCCI case, disqualification of MPs and MLAs upon conviction and sentencing of two years or more, Coal Scam, Black Money case) were assigned not to the four senior most judges but to “select benches” headed by junior judges. The report said such instances “did not attract any comment from activist lawyers about possible breach of ‘bench fixing’.
Let us compare Justice Mishra’s seniority with the fourth senior most judge Kurian Joseph. While Justice Joseph assumed his post on 3 March, 2013, and is set to retire on 29 November, 2018, Justice Mishra (former Chief Justice of Rajasthan High Court and Calcutta High Court) assumed office on 7 July, 2017, and will retire on 2 September, 2020.
In fact, by the end of the year, Justice Mishra will move up four spots (two senior judges are retiring this year) to sixth position. Next year, two more judges would retire thus bringing him into the list of the four senior most judges. The question: What difference would a year or two make as to his competence to hear the case?
Updated Date: Jan 16, 2018 09:41 AM