India's Supreme Court on Trial

Written by Seema Chishti | New Delhi | Updated: January 18 2018 7:18 am The Supreme Court. (Express Photo by Tashi Tobgyal) The four Supreme Court judges who last week made public their grievances against Chief Justice Dipak Misra met late Wednesday evening with two other Supreme Court judges and finalised a proposal which they hope will break the current impasse sources told The Indian Express. The proposal expected to be handed over to the CJI Thursday deals with formalising a rational orderly and transparent system to allocate cases to different benches of the Supreme Court. Its details were not available but sources said the idea is to insulate the roster from allegations of favour. Also Read: Four judges who criticised CJI Dipak Misra not on Bench that will hear 7 key matters This meeting came at the end of a day when Court Number 2 of the Supreme Court did not function due to the unavailability of Justice J Chelameswar who took the day off. Result: a meeting which had been decided on Tuesday morning between the four judges (Justices Chelameswar Ranjan Gogoi Madan Lokur and Kurian Joseph) and Chief Justice Misra could not be held. Instead a meeting took place of the four judges at the residence of Justice Madan Lokur. Also present were Justice U U Lalit and Justice D Y Chandrachud. This proposal to the Chief Justice who at the behest of three other colleagues had taken the initiative to invite the four senior judges to his chamber on Tuesday morning concerns a reformed system the judges feel needs to be put in place to dispel questions over the manner in which certain cases are being allocated. If the CJI is open to consider this central point sources said it is believed that the four judges are willing to take the discussion forward. Express Explained | How the complaint by four SC judges goes beyond the judicial sphere Sources said the CJI had so far not made any proposal of his own. Earlier in the evening around 4.15 pm members of the Supreme Court Bar Association (SCBA) had met the CJI and discussed a range of housekeeping issues including a suggestion to have a roster of allotment of matters like in the Delhi High Court. Interestingly Justice Misra was Chief in the Delhi HC when he was elevated to the apex court. Justices Chelameswar Ranjan Gogoi Madan Lokur and Kurian Joseph held a press conference last Friday in New Delhi (Express Photo/Abhinav Saha) The Supreme Court unlike the case in smaller countries constitutes several benches which hear matters and there has been a practice of cases being assigned to benches as per their expertise. For example judges regularly dealing with criminal matters are expected to get criminal cases. And in the formation of Constitution benches of five judges or more the five seniormost judges were usually included. A system looking at randomised allocation of cases would also take away any charge of selecting a particular bench. Meanwhile Wednesday s weekly lunch of the full Supreme Court (all judges) was not a complete one as three judges Justices Chelameswar Sharad Bobde and Adarsh Goel were absent. Before the meeting Justice Gogoi dropped by Justice Chelameswar s home to look him up. For all the latest India News download Indian Express App Tags: Dipak Misra supreme court k 4329Jan 18 2018 at 8:04 amCJI should resign.(2)(2) Reply Socrates SantosJan 18 2018 at 7:49 amBeing eminent judges even the foursome know that there is no clinching evidence against CJI - this CJI or any CJI in the past - to prove favoring to influence outcomes theoretical allegation. The rostering process is so subjective by design. Maybe the formula that the foursome are proposing helps settle the dust but I deeply suspect that even that formula will not be prone to subjectiveness and eventually public rebuke.(4)(0) Reply Narayana hospitalJan 18 2018 at 7:46 amDo you want to buy a kidney or sell your k1dney? Are you seeking for an opportunity to sell your k1dney for money due to financial break down and you don t know what to do then contact us today and we shall offer you a good amount for your k1dney. Please do contact us at: on Telephone no: ( 919052276540)(0)(1) Reply Shankar NJan 18 2018 at 6:42 amIt appears Justice Misra is rostering the hearings to steer the outcome of cases to favor a few if that is the case then can justice misra be impeached ? the integrity of the CJI is in question here(23)(6) ReplyCherian ManiJan 18 2018 at 7:11 amIt also appears all the former CJI s appointed by the COLLEGIUM were favoring a few if that is the case can all those CJI s be impeached ? Here now is the integrity of our Judges is in question.(4)(1) Reply Chetan MoreJan 18 2018 at 5:56 amThe need for rational transparent and orderly system reflects that the nations highest ins ution has been running in disorderly opaque and irrational manner till date?(9)(0) ReplySocrates SantosJan 18 2018 at 7:36 amLook if you want to improve life for better it does not mean that your life was not going well before. Everything is relative not absolute - my friend! That is another way to look at the entire show-down of the judges.(3)(0) Reply Load More Comments Written by Ananthakrishnan G | New Delhi | Updated: January 18 2018 7:19 am After enrolling for Aadhaar a person is required to authenticate his or her biometrics to avail benefits. (Representational purpose) Taking up for hearing a clutch of petitions challenging the Aadhaar Act a five-judge Constitution Bench of the Supreme Court Wednesday asked the petitioners if the State was not entitled to collect biometric data of citizens to ensure that constitutional obligations are carried out. Can t the State have a countervailing interest? For instance there are many schools without students They (State) may say all we are trying to do is to ensure that money is going where it ought to If you are depending on social welfare benefits equally the State has countervailing interests to ensure that they reach the right people Justice D Y Chandrachud one of the five judges on the Bench said. Headed by Chief Justice of India Dipak Misra the Bench also includes Justices A K Sikri A M Khanwilkar and Ashok Bhushan. Senior Advocate Shyam Divan who appeared for the petitioners replied that such savings they had found were minimal. He said even if there were such savings such an architecture was not possible. The unique identity architecture he said was such that throughout the day there will be an electronic trail of your movements and it is left with the central government why should central government know my movements . My movements can be tracked. With sophisticated computers it can be tracked real time. Such an architecture is not permissible and is unconstitutional This becomes a surveillance society. Divan said biometrics across the world do not operate on this scale at all. If someone hacks or hacks my fingerprints no way I can replace them. Aadhaar he said was helping the State profile citizens and had empowered it with a switch with which it can cause civil death of an individual . It raised several questions including whether the Constitution of India authorises creation of a surveillance state and whether the vulnerability of the database threatened national security . There ought to be an opt-out option according to us since there are many who say there was no consent at all there was no counselling (while enrolling) Divan said. After enrolling for Aadhaar a person is required to authenticate his or her biometrics to avail benefits. But the algorithm followed by the unique identity is probabilistic which means that authentication may or may not happen Divan said adding that this will have the effect of making the subscriber s entitlement wholly dependent on the authentication. This leads to excluding people from services. How can anyone s right be made probabilistic? he submitted. CJI Misra echoed Justice Chandrachud when he said Article 21 confers fundamental rights which include the right to education. To ensure that they (State) must ensure that teachers and students come to school. They may say their purpose is this. He also referred to fingerprint collection at entry gates of offices etc. Divan said that the petitioners had no problem with biometrics being required at entry gates etc. Our objection is to a central registry which stores the data. Then you know exactly from cradle to grave what a person is doing he said. Justice Sikri referred to the US embassy seeking biometrics to process visa applications and at border controls. Divan said this was different from Aadhaar as in the case of US border control the requirement of biometrics ends there unlike Aadhaar where the electronic trail happens throughout. Aadhaar acts as bridge between silos of information and helps profiling Divan said. He said there was no government control at all when data was being collected from 2014. At this Justice Chandrachud asked: Is your contention going to be: all data prior to 2014 has no legal standing at all? Justice Sikri said: Are you saying that whatever was done between 2009 and 2016 needs to be nullified? Divan replied in the affirmative adding when you are picking sensitive data from people there has to be some minimum governance Defects of the past cannot be cured retrospectively. When Divan invoked the Supreme Court judgment on the right to privacy to buttress his arguments Justice Chandrachud said: There are two separate cases. Firstly what we dealt with in the privacy judgment. Secondly will your biometric data which is held in the central depository be disclosed when you authenticate? It only authenticates it does not send back the biometric data. Raising their challenge the petitioners also questioned the manner in which such an important legislation was introduced as a money Bill. Divan said the law must fall for this reason alone adding it is a colourable legislation . The arguments will continue Thursday. For all the latest India News download Indian Express App Tags: Aadhaar supreme court Sundar BNJan 18 2018 at 6:34 amPlease can we know the business rules implemented in the system? For instance what governs the deletion or deactivation of a no. We all know that a spy got an Aadhar but was later deported but his Aadhaar is still eligible for LPG subsidy or whatever. Any 12 yr old en y relationship designer would have taken notice of the cascading effect of an Aadhar deactivation: the messages to be sent to dependent databases - PAN bank EPF etc etc - to deactivate that no. After all all these databases are first validated by UIDAI. So what governs https://www.pluggakuten.se/profile/kkgrof/  the data flow in UIDAI. How s y it is and about its integrity.(0)(0) Reply Jagdish ChanderJan 18 2018 at 6:27 amIf Aadhaar is so important a tool to authenticate iden y of a person the Hon ble Supreme Court should start from itself. Every judge and every advocate before entering the court room should authenticate their iden y through bio-metrics captured by UIDAI to know that the Judge and advocates entering the court room are not fake. The Judge before putting his signature on the judgement should get authenticated through UIDAI to establish that the same judge is signing order who heard the case. Then only the courts will understand the level of nuisance Aadhaar has created in the lives of citizens. Similarly entry in PMO including the Prime Minister himself should be authenticated through Aadhaar bio-metrics each time they enter South Block. Then only the PM will know what nuisance he has created for the country.(8)(1) ReplyKVT ETCJan 18 2018 at 7:48 amIts a definite inconvenience. while implementing at such a large scale there will be challenges and we will evolve gradually. But Aadhaar is the only kill corruption and eradicate black money. With aadhaar linkage Income tax is able to trace and go after every tax evader. Its similar to US government s SSN. Its ridiculous if someone argues their freedom is curtailed due to Aadhaar.(1)(0) ReplySocrates SantosJan 18 2018 at 8:00 amWhen steam engines were introduced in India we hear that people were fearful and cynical thinking that the brute machines will take over the way have known travelling until then - on horse backs. Indeed every change does bring in a feeling of nuisance in the begining and then becomes a part of life.(0)(0) Reply Socrates SantosJan 18 2018 at 5:23 amAdvocate Divan s arguments against the Aadhar program are compelling if the features he mentions are factually correct. A card with a lot of personal information with high-tech security features loses its purpose if one has to link their mobile numbers with that card because then even the mobile-wallah knows your details. In countries like the US the aadhar-equivalent card (SSN) does not even have a photo has no biometrics and thus has only a limited use - mainly in financial insti_tutions credit cards employment authorization and getting governmental benefits. For IDs in all other services there is Driving License (or a government ID card for who do not drive). However DL system in India is so pathetically corrupt that DL is not an option as reliable ID. I think instead of focussing only on linking aadhar with all and sundry services government should focus on eliminating corruption to strengthen Driver License (or government ID card) system to be foolproof.(4)(5) Reply Vikram AtJan 18 2018 at 2:45 amadhar is given to all and sundry let it be a terrorist or whoever.. i know people who have sold there iden y to nepalis and 3 of them are roaming with same name but diff adhar nos. original purpose for all subsidy am good y anything else at all.(1)(14) ReplyKVT ETCJan 18 2018 at 7:51 amReally.. To get a Aadhaar you need to have unique biometric. how a person can have 3 biometrics ?(1)(0) Reply Mahendra PatelJan 18 2018 at 1:30 amYour passport has all your details and your travel history if you dont want the government to know because it is your private matter ban passports(1)(17) ReplyR M ReddyJan 18 2018 at 1:44 amBut your passport doesn t have details like all the mobile numbers you are using all your operational bank accounts your UAN account number and a whole lot of other details about you. But all these are linked to your Aadhar which makes it a very dangerous tool as it in the wrong hands either external or internal can destroy the very fundamental rights of a citizen and can even make him/her disappear from the face of the society overnight. It s time to wake up and see the truth for it is.(11)(1) ReplyDeepak kumar singhJan 18 2018 at 5:55 amIf you are using internet in anyway you cant not be 100 safe. Google tracks you wherever you go google earns billions by you like dislike. On any social networking you simply proceed on privacy policy without reading.your all payments visa mastercards diner all payment gateways are USA based and even we dont know upto how much extent they they have information you you fingerprint lock unlock devices you basically upload your fingerprint data to device (Or may be some server you cant track that). Even you have heard nexals were encountered in Andhra due to cell phone tracking. so if someone is so concerned about fundamental rights . privacy . I think the only way is to keep distance from internet mobile etc.(2)(3)R M ReddyJan 18 2018 at 1:44 amBut your passport doesn t have details like all the mobile numbers you are using all your operational bank accounts your UAN account number and a whole lot of other details about you. But all these are linked to your Aadhar which makes it a very dangerous tool as it in the wrong hands either external or internal can destroy the very fundamental rights of a citizen and can even make him/her disappear from the face of the society overnight. It s time to wake up and see the truth for it is.(22)(1) ReplyR M ReddyJan 18 2018 at 1:46 amBut your passport doesn t have details like all the mobile numbers you are using all your operational bank accounts your UAN account number and a whole lot of other details about you. But all these are linked to your Aadhar which makes it a very dangerous tool as it in the wrong hands either external or internal can destroy the very fundamental rights of a citizen and can even make him/her disappear from the face of the society overnight. It s time to wake up and see the truth for what it is.(39)(0) ReplyVikram AtJan 18 2018 at 2:42 amdo u give your passport and seed it with phone bank accounts n everything. for subsidy its fine y anything else at all(1)(35) Reply Load More Comments NEW DELHI: The five-judge Constitution bench of the Supreme Court on Wednesday began hearing on petitions questioning constitutional validity of linking Aadhaar card to a number of government schemes. Many petitioners have raised doubts over safety of Aadhaar data. The apex court has also received petitions regarding the linkage of this 12-digit number with mobile phones bank accounts and so on the last date for which was extended to March 31 this year. While data breach has been widely debated in the recent past the government had refuted all claims of the same. In last few weeks the Unique Identification Authority of India (UIDAI) has come up with virtual ID and Face Authentication ideas to ensure safety of Aadhaar data. Recently a nine-judge constitution bench of the apex court had held that Right to Privacy was a Fundamental Right under the Constitution. Several petitioners challenging the validity of Aadhaar have claimed it violated privacy rights. Some petitioners in the top court have termed the linking of the Unique Identification Authority of India (UIDAI) number with bank accounts and mobile numbers as illegal and unconstitutional . They have also objected to CBSE s alleged move to make Aadhaar mandatory for students appearing for examinations a contention denied by the Centre. A Constitution bench comprising five judges of the Supreme Court began a hearing on the constitutional validity of Aadhaar the government s programme to provide a 12-digit biometric-based identity number unique to each citizen on Wednesday. Advocate Shyam Divan representing the petitioners said no democratic society had engaged in a programme of the size and scale of Aadhaar Live Law reported. There are very few precedents to guide us. Cases from other countries favour us he argued. Divan claimed that if the Aadhaar programme was allowed to continue unimpeded it would hollow out the Constitution.The counsel said the government s unique identity programme which it had rolled out through a succession of marketing strategies and smoke and mirrors was designed to tether every citizen to an electronic leash . Divan claimed that the Aadhaar programme inverts the relationship between the citizen and the state. Inalienable and natural rights of citizens have been made dependent upon compulsorily acquiring an Aadhaar number the counsel argued according to Bar and Bench. The system results in an electronic trail and profiling of individuals becomes easy...Can I be asked to leave an implant of my body wherever I go? That happens only in a totalitarian state not a democracy. Does the Constitution allow the state to have so much power? he asked. The Constitution is not a charter of servitude. Does the Constitution of India allow a programme where every transaction is recorded? Divan said the petitioners sought a declaration from the court regarding the physical autonomy of the individual as against the state. Alternatively they should have the right to opt out of the Aadhaar scheme and have their data destroyed the counsel said.He added that if the court upheld the Aadhaar Act no citizen should be deprived of any right or benefit for the lack of an Aadhaar card. The Supreme Court is hearing a clutch of petitions challenging the validity of Aadhaar based on privacy concerns. In a landmark ruling in August the court had declared privacy a fundamental right protected under Article 21 of the Constitution. This was seen as a major blow to the Centre s push for Aadhaar.The petitions also challenge several other aspects of Aadhaar and the sharing of data collected under it including making it mandatory for social welfare benefits to file income tax returns and linking it to mobile numbers and Permanent Account Numbers. Aadhaar has been made mandatory for opening bank accounts holding insurance policies making transactions and mutual funds Advocate Divan said. Effectively today you cannot live as a citizen of India without an Aadhaar card. Divan said that petitioners who work in rural areas say that Aadhaar works as a system of exclusion in these areas. People may not be able to come to enrolment centers Divan argued. A large number of people do manual work. Their biometrics are not registered. The counsel said that Right to Information replies had shown that by January 15 2017 there were 6.23 crore instances of the biometric system rejecting fingerprints while the Unique Identification Authority of India claimed there were only a few of such instances. As per their own claim there should not have been more than 1 000 rejections Divan argued. The Aadhaar mechanism is probabilistic not deterministic. If I have certain rights then how can my enjoyment of them be made probabilistic?The Constitution bench was initially set up on December 13 but two days later the Supreme Court agreed to the Centre s submissions to extend the deadline to link Aadhaar with all government schemes and services to March 31. The interim order also extended the deadline to link Aadhaar with mobile numbers to the end of the financial year.The court was adjourned for the day and the hearing will continue on Thursday.Changes to the Aadhaar progammeMeanwhile on January 10 the Unique Identification Authority of India introduced a two-step verification process to ensure users will never have to share their actual Aadhaar numbers reducing chances of its misuse and increasing privacy. Starting June 1 all Aadhaar transactions will take place with a virtual ID a 16-digit randomly-generated number that will be used for authentication to avail services instead of the actual Aadhaar number.The second safety net is limited KYC a mechanism which will regulate how Aadhaar details are stored in the databases of different agencies such as banks or telecom companies.On January 15 the Unique Identification Authority of India said it has decided to enable face recognition to add another layer of security for inclusive authentication for Aadhaar card holders. The service will be launched by July 1. Written by Seema Chishti | Updated: January 17 2018 9:42 am The lordships object: The dissatisfaction expressed last Friday by four top Supreme Court judges raises serious questions about India s institutions. Express Photo by Abhinav Saha Can the four judges complaint be called a crisis ? It is certainly an unprecedented situation. It involves sitting judges speaking out. Judges have spoken before but mostly off the record or while hearing cases. Justice JS Verma spoke in the late nineties on things ailing the judiciary. But that was in general terms. Recently Justice CS Karnan a sitting High Court judge went public and even sentenced Supreme Court judges to jail for in his view violating the SC/ST (Prevention of) Atrocities Act. Justice Kehar was the Chief Justice. Karnan acted alone. He ended up being the first sitting judge to be held guilty of contempt and jailed. What makes this complaint from four senior-most judges different is that it doesn t involve a single judge. This is the entire Collegium minus the Chief Justice airing differences. These judges are not a group with similar ideas on how the judiciary must function. One is the putative successor after the present Chief Justice demits office. What is the meaning of business as usual in court which senior legal officials hope will be achieved? Business as usual is in some sense restored with courts functioning and judges hearing cases rostered to them (even after they have publicly shared concern that the rostering of work is unfair). But the other big administrative task which the Chief Justice fulfills is discharged as a group a Collegium which is responsible for judicial appointments. The letter released last Friday was written by four out of five members of the Collegium so the Chief Justice is unlikely to have an easy run there. What is the meaning of resolving the situation ? A resolution would have to involve some discussion between all five judges leading to a settlement on what the rules of the game must be. Some rules for rostering may be in order. Rostering cannot be seen to necessarily exclude seniors. In India given the scale of cases the principle of en banc or the entire court hearing everything together does not apply. The Indian Supreme Court speaks in many voices (26 judges in 13 court rooms). But Benches seen to be specialising in some area could be created so the allocation of cases is not seen as purely discretionary. Also Read | Supreme Court crisis: CJI Dipak Misra meets four dissenting judges will talk again The one case in which a complaint was made against the Chief Justice the Medical Council of India bribery scam was re-allocated to himself on the bench by the Chief Justice on November 10 2017 despite being allocated to another bench (consisting of five senior-most judges of the Supreme Court) by Justice Chelameswar the second-most senior judge. The principle of nemo judex in causa sua or no man can be a judge in his own case was held to be overruled by the other principle of the Chief Justice being the master of the roster . This may need changing if any meaningful resolution is sought. Has anything happened historically which has similarly drawn the judiciary into a national debate? The most contentious time was in the 1970s when the idea of the committed judiciary that Indira Gandhi and her team spoke of was almost secured. The infamous ADM Jabalpur vs Shivkant Shukla case (April 28 1976) which essentially upheld the government s right to limit the fundamental rights of Indians in an Emergency had a sole dissenter Justice HR Khanna who was penalised for his view. The appointment of Justice AN Ray as Chief Justice in April 1973 superseding three senior judges is meant to be an all-time low in how the judiciary was sought to be managed. His proximity to then-PM Indira Gandhi raised serious questions over the judiciary s role in the Emergency. Also Read | See a political conspiracy what judges did is unforgivable says senior RSS leader Later the judiciary in an era of coalition governments took on a role deemed more activist also evolving a unique mechanism of securing near-complete control over judicial appointments. The government retains administrative control but especially after the NJAC Bill was struck down by the Supreme Court in 2015 (Justice Chelameswar being the lone dissenter) appointments again fall in the judiciary s domain. What is the relationship of the judiciary with the executive and Parliament? The relationship between the three pillars of Indian democracy has often been fraught a see-saw but that itself is said to add heft to Indian democracy. If the Rajya Sabha is seen to balance the Lok Sabha then the judiciary has applied brakes on legislative enthusiasm beaten back sometimes yet persisting. At the very start when the Constitution was drawn up in 1950 judges ruled on two crucial matters supporting the rights of zamindars and the right of journalists to publish (Romesh Thapar versus State of Madras 1950). Then the government sought to bring in the first ever amendment to the Constitution. Also the only way a judge can be removed from office involves Parliament. Justice Soumitra Sen is the only judge to have been impeached by the Rajya Sabha in 2011 he resigned before the Lok Sabha could vote on the matter. The fact that the removal of a judge is only possible via Parliament adds balance but also a slice of tension to the relationship. The famous Kesavanand Bharti judgement in April 1973 gave India the basic structure or parameters for the legislature to amend the Constitution. Nothing that seeks to change the basic structure or spirit of the Indian Constitution would be allowed said a thirteen-judge bench led by Justice Sikri. Governments and courts have had issues as the state is the biggest litigator. Court judgements impact policy but cases often have political implications and so policy and politics and courts continue to be intertwined. For all the latest Explained News download Indian Express App Tags: Express Explained balaji baliarsinghJan 17 2018 at 2:09 pmWhat majority people will tell that is the law. If that is not so then law will not be changed with changing locality. What is very common things in UK USA attract capital punishment in Saudi arabia. It suggest that nothing is legal illegal as such. The things what is agreed by the vast group is the rule to follow in that land. In that way we can not say judge is always supreme nor the PM . That is the situation Public should have the final say. Otherwise it may lead to civil war(0)(1) Reply Vikrant AgrawalJan 17 2018 at 12:04 pmWife of communist leader will always present a colored picture(1)(4) Reply Kulmohan ManchandaJan 17 2018 at 11:00 amWhether the judges fight amongst themselves or patch-up makes little difference to the state of Justice in India. The fact that widows and orphans of 1984 riots got no justice on their watch for 33 long years is enough to say that they were anyway not doing their jobs properly.(8)(0) ReplyJoji CherianJan 17 2018 at 11:32 amWhat about the widows and orphans of pogrom 2002 ? And you know who the master brain was and where he is today.(8)(11) ReplyVikrant AgrawalJan 17 2018 at 12:07 pmWhat about those who killed innocents in Sabarmati express in Godhra? What about widows of people killed in over 20000 riots that happened before 2002 under Congress nose? Worst killing happened in 1947 under Nehrus nose what about his failure to control those mass killing and rapes which killed lakhs and displaced millions(6)(3)Masa KolaJan 17 2018 at 12:16 pmFalse propaganda by Sickular left lobby.(2)(3) Muftkhor By ChoiceJan 17 2018 at 10:46 amThe 4 judges have violated Indian Cons ution. Cons ution grants powers to rkster to CJI(2)(16) Reply Abhay NandanJan 17 2018 at 10:34 amCollegium system need to go. NJAC Bill would have made them accountable to the people through parliament. It was though struck down by the Supreme Court in 2015. Lone dissenter Justice Chelameswar though part of present Collegium seems to be reasonable. Under the garb of Judicial Freedom he did not opt to be unaccoutable. We have just seen how so called freedom and independence of Judiciary has tarnished the image of System of Justice in the eyes of common man. With certain checks and controls in NJAC it can be ensured that another Indira do not succeed to get a pliable judiciary.(3)(9) ReplyAnand MohanJan 17 2018 at 11:07 amHighly balanced comments by you. Rather i would say that one of the reason for the problems arising today in higher judiciary is extreme ring fencing of itself by the court during last 23-24 years against any probability of its systems being checked or open for (type of ) peer review.(5)(0) Reply Load More Comments It is hereby notified for the information of the Members of the Bar and the Parties appearing in person that hencefoth oral mentioning in respect of matters which have not already been assigned/listed before any other bench will be allowed only before the Court presided over by Hon ble Chief Justice of India at 10.30 am. Was this brief even terse circular issued by the Supreme Court registry on 10 November a harbinger of the calamitous events of Friday 12 January 2018 when Justice Jasti Chelameswar led a mutiny of sorts against the Chief Justice of India? Justice Chelameswar described the press conference as an extraordinary step without adequately explaining the extraordinary situation that he and three other senior colleagues said they were forced to respond to. After much prodding and probing by the media Justice Chelameswar Justice Ranjan Gogoi Justice Madan B Lokur and Justice Kurian Joseph reluctantly cited events before and after 10 November as possible triggers for the explosion. But there was no mention of this extraordinary circular which on the face of it was merely underscoring an existing practice but between the lines effecting a major change. Justice Gogoi confirmed that the immediate provocation was the allotment of the case pertaining to the death of Justice BH Loya to a junior bench that very morning of 12 January. A letter they released referred to an incident on 27 October when a two-judge bench passed orders in a case that has now come to known as the RP Luthra versus Union India case. Here too the judges expressed their objection to the CJI for setting up a new preferred bench to hear issues arising out of the Memorandum of Procedure (relating to the appointment of judges) when a constitutional bench was already seized of the matter. Neither of the two incidents adequately explained why matters spiralled downwards so alarmingly within eight weeks (27 October 12 January) so as to render four of the country s senior most judges helpless enough to call upon the nation to decide how to restore order in the highest court of the land. The Luthra case is not the first instance of disagreement over allotment of cases. Preferrential allotment is a practice older perhaps than even the Supreme Court of India. It is not going to end with the Loya case either now that all hell has broken loose. (The exclusion of the senior four from the Constitution bench to hear seven cases from 16 January is enough proof of that.) So the press conference of 12 January left many gaps in understanding the issue at hand. What was the big departure by the CJI from convention that the four judges were complaining so bitterly about? In an institution where convention is as much revered as the Constitution why were they themselves breaking a convention (that judges don t speak to the media)? The little noticed 10 November circular helps fill critical gaps in our understanding of the extraordinary situation that the four judges were responding to equally extraordinarily. First let s take a look at the circular: Oral mentions as a rule are heard by the CJI and don t quite merit reiteration. But this 55-word innocuous-looking circular was anything but ordinary. Without explicitly saying so CJI Misra was cutting out Justice Chelameswar his senior-most brother judge completely from the responsibility of hearing oral mentions. This was a drastic departure from a time-honoured convention. Until the circular came along the senior most judge of the court would hear oral mentions when the CJI was busy with matters of a Constitution bench. In fact on two consecutive days - 8 November and 9 November - preceding the circular Justice Chelameswar had heard oral mentions and passed orders that put the CJI in a difficult spot (more on this later). This circular was the CJI s comeback; his way of ensuring that his senior-most colleague did not slip one past him while he was busy on a Constitution bench. That s why the circular said oral mentions could be made only before the Chief Justice at 10.30 am. The CJI effected a proceedural change in his court as well to be always available for oral mentions. He would now take up oral mentions every day at 10.30 am for one hour and only then convene the Constitution bench effectively excising Justice Chelameswar s role in hearing oral mentions. The first question that comes to mind then is why did CJI Misra immobilise his senior-most colleague with respect to oral mentions? The answer is as simple as it is sad: A complete break down of trust between the top two judges of India. This was amply demonstrated in a string of judicial proceedings on three successive days (8 9 and 10 November) relating to the MCI bribery case which more than any other matter seems to be the centrepiece of this sorry judicial joust. Cartoon by Manjul. A brief idea about the Medical Council of India vs the Prasad Education Trust case is in order here. A three-judge bench led by CJI Misra was intermittently hearing cases arising out of the MCI denying permission to the Trust to open a medical college and for moving to encash the Trust s Rs 2 crore bank guarantee. Late in August 2017 the bench had held back MCI from encashing the bank guarantee. On 18 September it again upheld the stay on encashing the bank guarantee and asked MCI to conduct a fresh inspection to see if the Trust could admit students for academic session 2018-2019. That is where the case stands now. But the next day (19 September) the Central Bureau of Investigation (CBI) lodged an FIR against six persons including a former judge of the Orissa High Court IM Quddusi and two managers of Trust for trying to influence the outcome of the case in the Supreme Court. On 8 November Prashant Bhushan of the Campaign for Judicial Accountability and Reforms (CJAR) moved a petition for urgent hearing in the MCI matter. The burden of his plea was that a Special Investigation Team (SIT) under the direct charge of the Supreme Court should take over the probe from the CBI. He contended that since aspersions were being cast on a bench headed by the CJI the court should monitor the investigations directly - given that CBI being a government organisation could be manipulated. Since CJI Misra was conducting the hearings of a Constitution bench that day Bhushan s petition came up for oral mention before Justice Chelameswar who then admitted Bhushan s petition and posted it for hearing two days later (on 10 November) before his own bench knowing well that the MCI case was being heard by a bench headed by the CJI. Notably this happened 12 days after the Luthra case wherein the four senior-most judges were upset (as revealed in the letter they released to the media) that it was allotted to a new bench even though a Constitution bench was seized of the matter. A file image of Chief Justice of India Dipak Misra. PTI CJI Misra moved quickly. Later that day (8 November) he reassigned the case to another bench comprising AK Sikri and Ashok Bhushan who would take it up on 10 November. Effectively the case was wrested from Justice Chelameswar s court by the CJI. The very next day (9 November) another advocate Kamini Jaiswal filed a fresh petition in the MCI matter. She also contended that since the CBI investigation suggested that attempts were being made to influence the Supreme Court bench hearing the MCI case the matter needed to be handed over to an SIT and that CJI Misra should not be part of the bench dealing with it. Her lawyer Dushyant Dave made an oral mention for urgent hearing at 10.30 am. The Chief Justice was again busy with matters of the Constitution bench. So the oral mention took place before Justice Chelameswar (along with Justice Abdul Nazeer). They agreed to hear the petition at 12:45 pm the same day. Meanwhile the Constitution bench of the Chief Justice which normally breaks at 1 pm for lunch abruptly concluded proceedings just past noon. And when Justice Chelameswar s bench took up Jaiswal s petition for hearing at 12:45 pm an official from the Supreme Court registry handed over a note from the CJI suggesting that since the CJI had already assigned a similar case to another bench Justice Chelameswar should refrain from passing orders on this matter. Justices Chelameswar and Nazeer brushed aside the advice and admitted Jaiswal s petition. Unlike on the previous day when they assigned it to a two-member bench this time they not only referred it to a Constitution bench but also dictated its composition (first five judges in the order of seniority) and posted the case to 13 November. Convention is that the CJI decides the composition of Constitution benches but Justice Chelameswar broke it. The bench of Justices Sikri and Bhushan took up the case on 10 November morning and referred the issue to a Constitution bench. Within hours the Chief Justice constituted a seven-member bench headed by himself and not including Justice Chelameswar. Two judges recused themselves so a five-member bench took up the matter at 3 pm. It was an ugly spectable wherein Prashant Bhushan repeatedly asked the CJI to recuse himself from the hearing because the FIR is directly against you and the CJI responded with there s not a word against me in the FIR . Prashant Bhushan stormed out of the court complaining that he was not being allowed to make his submissions. A little later CJI Misra http://www.metalstorm.net/users/paydth/profile pronounced the bench s ruling. It reiterated that the CJI is the master of the roster and annuled Justice Chelameswar s order of the previous day setting up a Constitution bench. It said both the petitions Bhushan s and Jaiswal s would be taken up by a new bench to be constituted by the CJI in two week s time. This unfortunate run of events wherein one bench of the Supreme Court tried to trip another and vice versa provided the background for the unprecedented circular in question. Having snuffed out two attempts by his senior-most colleague to put him in a tight spot CJI Misra ended the day by ensuring he would no longer have to look over his shoulder to see what his seniormost colleague was up to. He just cut him out of oral mentions altogher. That is why the central theme of the letter they wrote to the CJI recognised him as the master of the roster but pointed out that it was 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 amongst the equals nothing more or nothing less . CJI Misra and the four judges had their first meeting on Tuesday but could not break the ice. They are slated to meet again this afternoon for a second attempt at reconciliation. But unless they fix the broken trust amongst themselves a lasting solution is unlikely. And as long as the circular remains in force it will serve as a grim reminder of the lows that the Supreme Court hit in the last couple of months. For LIVE updates on crisis unfolding in the Supreme Court click here New Delhi: Four top Supreme Court judges convened a press conference on Friday that was seen to reflect the growing rift with the Chief Justice of India Dipak Misra. The Supreme Court s four senior-most judges - Justices J Chelameswar Ranjan Gogoi Madan Lokur and Kurien Joseph - said that things are not in order with what they described as the administration of the Supreme Court .In a letter to the Chief Justice that was made public the four judges underlined that an independent judiciary is essential for a functioning democracy. We don t want wise men saying 20 years from now that Justice Chelameswar Gogoi Lokur and Kurian Joseph sold their souls and didn t do the right thing by our Constitution Justice Chelameswar said explaining why they decided to go public with their views at what he conceded was an extraordinary event. This isn t the first time when members of the higher judiciary have expressed a strong opinion but in the past they had always spoken through their judgements. Here are five standout instances in the Indian judiciary: 1. In a landmark judgment in 1975 Justice Jagmohan Lal Sinha of the Allahabad High Court cancelled the election of the then Prime Minister Indira Gandhi to the Lok Sabha. An Emergency was imposed in the country on June 27 the same year. Justice Jagmohan Lal Sinha despite threats and political pressure announced ...the petition is allowed and the election of Smt. Indira Nehru Gandhi respondent No. 1 to the Lok Sabha is declared void .2. In 1976 Justice Hans Raj Khanna the lone dissenter in a five-member bench went against the then Prime Minister Indira Gandhi in a case involving civil liberties. What is at stake is the rule of law... the question is whether the law speaking through the authority of the Court shall be absolutely silenced and rendered mute... Justice Hans Raj Khanna said observations that were seen to have cost him his promotion as Chief Justice of India. He was superseded and Justice Beg who was next in seniority appointed the Chief Justice of India in January 1977.3. In 1980 the Supreme Court of India strengthened the doctrine of the basic structure of the Constitution and ruled that the power of the parliament to amend the Constitution is limited by the Constitution. Parliament cannot exercise this limited power to grant itself an unlimited power the court ruled after the 42nd amendment to the Constitution attempted to reduce the powers of the Supreme Court and High Courts to decide the constitutional validity of laws enacted by the legislature. CommentsClose X 4. In 1994 the Supreme Court attempted to deal with complaints that the Centre had been dismissing state governments and laid down ground rules for invoking powers under Article 356 of the Constitution.5. In 1993 the Supreme Court interpreted the principle of judicial independence to mean that no other branch of the state - including the legislature and the executive - could have any say in the appointment of judges. The court then created the collegium system that continues to make recommendations for appointment and transfer of judges. Parliament created a National Judicial Appointments Commission through a constitutional amendment in 2014 to reverse the 1993 verdict.But the Supreme Court called this change unconstitutional and struck down the changes in 2015. Justice J Chelameswar was a member of this bench but gave a dissenting note. He has since then sought changes in the selection and appointment process on more than one occasion within the Supreme Court. Updated: January 15 2018 8:46 am All judges of the Supreme Court are equal when it comes to hearing and adjudicating cases. However with respect to the administration of the Court the chief justice is the first among equals . (Illustration: Manali Ghosh) Top News Kurukshetra: Friend-suspect in Dalit girl s rape and murder found deadThere s threat to my life BJP RSS can kill me: Jignesh MevaniWhatsApp testing new feature to block spam messages: ReportGautam Bhatia On Friday four of the senior-most judges of the Supreme Court held a press conference at the residence of Justice Jasti Chelameswar. In the press conference an unprecedented event in the annals of the judiciary they expressed concern about the manner in which the Chief Justice of India was administering the Court and released a letter that they had written to him. Unsurprisingly the move has generated fierce debate. Friday s events however are not simply about the personalities involved. They represent the culmination of the gradual deepening of a number of faultlines in the Indian judicial system and highlight the urgency with which they need to be addressed. At the heart of the controversy is the chief justice s power as the Master of the Roster. All judges of the Supreme Court are equal when it comes to hearing and adjudicating cases. However with respect to the administration of the Court the chief justice is the first among equals . The chief justice decides when a case may be listed for hearing and she also decides which judges will hear it. In itself this model is unexceptionable. It is followed by many constitutional courts across the world and facilitates smooth and efficient judicial functioning. In India however there are three interconnected factors that have over the years put this model under severe strain. First the Supreme Court now consists of 26 judges who predominantly sit in benches of two. Compare this with the US Supreme Court for example where all its nine judges sit together (en banc) to hear cases or the UK s Supreme Court where 12 judges often sit in panels of five (or more). The Chief Justice of the US Supreme Court therefore has no choice in the question of which judges will hear a case and in the UK the choice is significantly constrained. By comparison the Chief Justice of India has significantly more discretion in determining which judges will hear and decide a case. Why does this matter you may ask? If judges are meant to apply the law wouldn t the outcome of a case remain unchanged no matter which judge hears it? Not so. Legal texts are linguistic artefacts and language is always open to interpretation. Nor can the discipline of law be segregated from the social political and historical context in which it exists. Two judges who come from different contexts may even understand the same set of facts very differently. Now to curtail these kinds of divergences legal systems evolve homogenising tools such as a system of precedent and a commonly accepted interpretive approach towards legal texts. This however brings us to the second factor: In India over the last 30 years these constraining influences have been significantly weakened. The rise of public interest litigation has diluted the practice of strict adherence to the legal text and the Court s habit of sitting in multiple small benches has undermined the gravitational pull of precedents. This means that when a judge surveys the legal landscape before her she finds that it gives her greater room to effectuate a personal interpretive philosophy than she might otherwise have. Multiple examples can be cited to demonstrate this. Perhaps the starkest is a brief period in the mid-2000s where two Supreme Court benches were hearing cases involving the death penalty. One of these benches confirmed virtually every death sentence while the other commuted most of the cases before it. The question of whether a person lived or died then depended upon the lottery of which bench his case came before or in the Indian legal system which bench the chief justice assigned it to. And third the Supreme Court is dealing with a massive backlog of cases. This means that in the normal course of things a petition will take many years to be heard and decided. The chief justice however has the power to list cases for hearing. Given the huge backlog this simple administrative function becomes a source of significant power. For example the government s demonetisation policy was challenged in the Supreme Court on multiple grounds including the argument that the government could not legally deprive people of their property without passing a law. The Supreme Court is yet to hear this case. In the meantime the policy has been implemented in its entirety and any judgment the Court would now render would be purely academic. Backlog therefore allows the Court through the office of the chief justice to engage in the practice of judicial evasion that is effectively deciding a time-sensitive case in favour of one party by simply not hearing it. In a legal system where a significant percentage of the judges of the Court sit on every case where there is at least a surface consensus about the interpretive philosophy that judges use to decide cases and where all cases are heard within a short time of being filed the chief justice s power as Master of the Roster would be purely administrative. However in our system where none of these three conditions obtain this harmless administrative power has transformed itself into a significant ability to influence the outcomes of cases. And unfortunately this progressive centralisation of power within the office of the chief justice has not been accompanied by a parallel strengthening of the accountability of this office. The office of the chief justice remains answerable to none a situation that was highlighted recently when in a case that potentially involved the chief justice the chief justice himself constituted a bench to hear it and the Bench while rendering its judgment effectively held that the principle no person shall be a judge in their own cause simply didn t apply to the office of the chief justice. The upshot of all this is that the survival of the Court as an institution is dependent entirely upon the character of the individual occupying the station of the chief justice. However history tells us that institutions that become over-reliant upon single individuals inevitably decay. The actions of the four judges on Friday whatever their merits precisely highlight the structural problems pointed out above and remind us that if we are to prevent that decay in one of the most vital institutions of our democracy the only way out is meaningful reform that brings accountability and transparency to the office of the chief justice without compromising on judicial independence. The writer is a Delhi-based lawyer For all the latest Opinion News download Indian Express App More Top News WhatsApp could soon get feature to dismiss group admin Amazon Great Indian Sale to start from January 21: Top deals on smartphones electronics and more Sanjeev AggarwalJan 15 2018 at 7:11 pmA basic difference is there between US/UK and India. Diversity... discipline of law can be segregated from the social political and historical context in which it exists. interpretive philosophy can vary from Judge to Judge sitting on the case.(0)(0) Reply R JainJan 15 2018 at 12:42 pmAll this eloquence and you have nothing to say about NJAC? You sir are just another part of the problem not the solution.(2)(13) Reply Vikrant AgrawalJan 15 2018 at 11:48 amIf there needs to be transparency then the appointment of these judges itself needs to be transparent. It is surprising that one of these judges who is in line to become next CJI is son of an ex Congress CMA and whose son represrnts Punjab Congress govt in SC. Like all public servants why are assets of Judges not made public? These 4 judges need to first proove that what the existing CJI is deviating from the norms and has followed a different procedure in allocation of cases and deviated from past established procedures.(6)(8) Reply V.S. MalhotraJan 15 2018 at 10:44 amAn article in this very issue of I.E. by a learned author speaks of the great German philosopher Hegel s capacious writings on India and its thought. Reading this I was reminded of this very Hegel s idea of India as referred to by a famous Spanish statesman Ortega Y Gasset: Persia land of light! Greece land of grace! India land of dream! Rome land of Empire! Perhaps Hegel was right as we are still dreaming of becoming world s superpower and yet we cannot come to a consensus in our own home how to evolve a governance system in which we the people can put our faith and carry on with our individual day to day professions without any unnecessary tensions and worries. May be the eminent personages of the highest Court of Justice concerned with the present situation that has arisen therein will rise to the occasion and lay the foundations of a TOTALLY NEW INDIA which no Hegel of the future would ever be able to caste any aspersion upon. Pray thee your lordships! Make this happen(2)(0) Reply Indian SinghJan 15 2018 at 7:59 amArticle 124(2) of Indian Const-itution on appointment of JUDGES. .... Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years: Provided that in the case of appointment of a Judge other than the chief Justice the chief Justice of India shall always be consulted. ..... So INDIAN CONSTI-TUTION does NOT RECOGNISE SENIOR JUDGES or COLLEGIUM OF FOUR SENIOR MOST JUDGES. This FOUR SC JUDGES are NOT questioning EQUAL Judicial Power of all SC JUDGES including CJI but the ADMINISTRATIVE POWER of CJI. ... The COLLEGIUM and SENIOR JUDGE an invention by SC is LAW MAKING bypassing Parliament violating Consti-tution. If SC insist on COLLEGIUM SYSTEM the FOUR JUDGES with CJI be selected by DRAW of LOTS each time selection is to be done(6)(7) Reply Load More Comments