#SUPREME COURT ON LOYA CASE

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Judge Loya death case: 'Assault on judiciary' makes SC see red; top 10 developments on Business Standard. Death of CBI judge B H Loya, who was hearing Sohrabuddin case involving BJP chief Amit Shah, did not need probe, SC ruled. Here are Supreme Court's reasons for dismissing Judge Loya death case please

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Rahul behind petitions in Loya death case, says a 'vindicated' BJP; updates

The Supreme Court on Thursday dismissed a batch of pleas seeking an independent probe into the mysterious death of special Central Bureau of Investigation (CBI) judge B H Loya, who was hearing the high-profile Sohrabuddin Sheikh fake encounter case involving Bharatiya Janata Party (BJP) Amit Shah. Loya had on December 1, 2014 died of cardiac arrest in Nagpur, where he had gone to attend the wedding of a colleague's daughter.

Further, the apex court said that the submissions of the petitioners prima facie amounted to criminal contempt of court but that it was not initiating contempt proceedings.

The ruling BJP came down heavily on the Opposition after the Supreme Court dismissed the Loya death case petition. BJP spokesperson Sambit Patra said the petitions were filed with a political agenda. Accusing the Congress of being the "invisible political power or a political platform" behind the petition, Patra said it was an attempt to settle political rivalry.

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udge Loya death case verdict: SC rules no independent probe, dismisses all PILs on Business Standard. Supreme Court dismissed PILs seeking independent probe into death of CBI judge BH Loya. SC slammed petitioners for maligning the judiciary.

[loyallogic]

Alternate dispute resolution in criminal jurisprudence

This article is written by  Abhishek Taneja and Abhinav Aggarwal from Amity Law School, Delhi.

Introduction 

Section 89 of the Code of Civil Procedure empowers the civil courts to refer a matter to alternate dispute resolution methods such as conciliation, arbitration, mediation and judicial settlement via Lok Adalats. However, unlike civil disputes, the scenario in the criminal context changes, the difference between the same has been enunciated as follows: 

ADR in the criminal context represents a shift towards ‘restorative’ justice, which views the crime as the violation of one person right by another and justice in the criminal context should focus on repairing the victim’s harm. 

ADR in the criminal aspect contains an idea of reparation in the transitional justice aspect, which might not be a component of civil mediation. Reparation refers to an act on the part of an offender to do something positive on behalf of the victim and the society which may involve compensation, community services etc., whereby in the civil context it is just a part of the judicial settlement. 

ADR in criminal cases involves the final settlement to be pronounced in the court in various jurisprudences, whereas in civil matters, the same is confidential and simply a matter between the parties. However, the Indian criminal justice system was not open to the idea to include the option of mediation which is evident from the landmark case of Afcons infrastructure and Ors. v. Cherian Varkey Construction and Ors, in which it was held that criminal cases shall not be decided via alternate dispute resolution methods. 

Inclusion of plea bargain 

Plea Bargaining is successfully practised in many jurisprudences around the globe and it may be understood as a pre-trial settlement between the accused and the prosecution on the pretext wherein the accused pleads to be guilty in order to receive some concessions by the prosecution. However, the Supreme Court was not always in favour of introducing Plea Bargaining into the Indian criminal jurisprudence, which is evident from the following judgments: 

In Murlidhar Meghraj Loya vs the State of Maharashtra, the Hon’ble Supreme Court was not in favour of the inclusion of the concept of plea bargaining as it intrudes with the fundamental right of a person accused of an offence shall not be compelled to be a witness against himself 

In Kasambhai vs State of Gujarat & Kachhia Patel Shantilal Koderlal vs State of Gujarat and Anr, The apex court, while criticising and regretting the plea bargaining accepted by the magistrate stated that plea bargaining is against public policy. Furthermore, the court also held that plea bargaining was ultra-vires to the society and the Constitution and also that it might encourage collusion, corruption and pollute the pure fount of justice. 

In Thippeswamy vs State of Karnataka, the Court stated that persuading or leading an accused to plead guilty under a promise or assurance would be violative of Article 21 of the Constitution. It was the 154th Report of the Law Commission, which first suggested the inclusion of the concept of Plea Bargaining in Indian Criminal Jurisprudence as an alternate to the traditional dispute resolution via courts and the hence paved way in the Criminal Procedure Code, 1973 (CrPC) as Chapter XXIA, Sections 265 A to 265L through the Criminal Amendment Act, 2005. It allows for plea bargaining for cases wherein the maximum imprisonment is for 7 years, wherein the offence does not affect the socio-economic condition of the country and also where the offence is not committed against a woman or a child below 14 years of age. 

Sections that recognise the concept of the settlement are

Section 265-C (Guidelines for Mutually satisfactory disposition), lays down the procedural guidelines that the court shall follow in a mutually satisfactory disposition. In a case instituted on a police report, the concerned public prosecutor, the investigating officer of the case, the victim of the case and the accused are served notice by the court to participate in the meeting to work out a satisfactory disposition of the case. In a complaint case, only the accused and the victim are served notice by the Court. 

Section 265-D (Report of the mutually satisfactory disposition), lays down the procedure for preparation of the report of mutually satisfactory disposition and submission of the same, while doing so, two situations may arise here namely, which are mentioned in the provision itself, which are: 

If in a meeting under section 265-C, The court prepares the report of the satisfactory disposition, if any, which shall be signed by the presiding officer of the Courts and all other persons who participated in the meeting. 

If no disposition has been worked out, the court shall continue the trial of the accused; with the provisions of the CrPC from the stage of filing of the application under sub-section (1) of the section, 265-B has been filed in such case, after recording the observations of failure of the disposition. 

Domestic Courts Perspective 

Following the inclusion of Plea bargaining into the Indian Criminal jurisprudence, the courts also accepted the concept of alternate dispute resolution methods, which is evident from the following judgments: 

In Gian Singh v. State of Punjab 12th, Supreme court held and recognised that the outside court settlement was in the exercise of a statutory power of the High Court under Section 482 of the Cr.PC. The Supreme court also held that ”the criminal cases which have an overwhelmingly and predominantly civil flavour, like those of commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case full and complete settlement and compromise with the victim” 

In K. Srinivas Rao v. D.A. Deepa, the Supreme Court held that the complaint filed under Section 498A of the Penal Code, 1860, though a non-compoundable offence, could be sorted outside the court and suggested that the same shall first be referred to the Mediation centres in appropriate cases if the parties are willing and if it appears to the criminal court that there exist elements of the settlement, therefore, recognising the need for ADR methods in the criminal matters as well. 

In Dayawati v Yogesh Kumar Gosain, The Hon’ble Delhi High Court opined that the Lok Adalat has jurisdiction over only such criminal matters that relate to offences compoundable by law i.e. under Section 320 of the Cr.P.C. or under any special enactment, as per the section 19(5) of the Legal Services Act, 1987. The court also mentioned that section 320 of the CrPC clearly permits and recognizes the settlement of specified criminal offences. The settlement will obviously be only by a voluntary process inter se the parties. To facilitate this process, there can be no possible exclusion of external third party assistance to the parties, say that of neutral mediators or conciliators. 

In Parabat Bhai Aahir @ Parbatbhai Bhimsinhabhai Karmur v. the State of Gujarat, J. D.Y. Chandrachud, speaking on behalf of the three judges bench, upheld the principle of the Gian Kaur judgment and held that the mediation or outside court settlement shall be done only in private matters, like those of commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations and not in those matters, which have a serious impact on the society, heinous and serious crimes like those of murder, dacoity and rape. 

In Yashpal Chaudhary v. State, the Hon’ble Delhi High Court established the guidelines to be followed for the quashing of the cases of serious nature on the premise of a settlement of the dispute entered between the parties. The court laid down the guidelines, which shall be followed in mediation and mutatis mutandis to other ADR methods, which is extracted as below: 

“(i) The court while considering reference of the parties to a criminal case to the mediation must before even ascertaining as to whether elements of settlement exist first examine, by preliminary scrutiny, the permissibility in law for the criminal action to be brought to an end either because the offence involved is compoundable or because the High Court would have no inhibition to quash it, bearing in mind the principles that govern the exercise of jurisdiction under Section 482 CrPC, ie, inherent powers of the high court. 

(ii) The mediator (before commencing mediation) must undertake preliminary scrutiny of the facts of the criminal case and satisfy himself as to the possibility of assisting the parties to such a settlement as would be acceptable to the court, bearing in mind the law governing the compounding of the offences or exercise of a power of the High Court under Section 482 CrPC. For this, an institutional has to be created in the mediation centres so that there are consistency and uniformity in approach. The scrutiny in above nature would also need to be undertaken, as the mediation process continues, should any such criminal case, as mentioned above, be brought on the table by the parties (for being included in the settlement), as it takes it beyond the case initially referred. 

(iii) The system of vetting, at the conclusion of the mediation process, needs to be institutionalized so that before a settlement vis-a-vis a criminal case is formally executed by the parties, satisfaction is reached that the criminal charge involved is which is either compoundable or one respecting which there would be no inhibition felt by the High Court in the exercise of its inherent power under Section 482 CrPC, bearing in mind the relevant jurisprudence.“ 

The above judgments clearly show that there is a paradigm shift of recognising ADR methods in criminal matters as well. Now, many non-serious and private nature offences are being decided using such methods. 

International perspective

The USA Victim-offender Mediation process is used in the US wherein the victim and the offender of the crime are brought together to meet face-to-face under the structured guidance of a mediator. The mediation may take place at any time during the course of the justice process, but almost all of them take place after court involvement. According to a national survey conducted by the U.S. Department of Justice, about a third of the mediations take place prior to any formal finding of guilt, but over half take place after. Even the severe violent crimes such as serious assault and homicide have been successfully mediated in the USA.

The Philippines The Barangay justice system consists of a locally elected Barangay captain and a “peacekeeping committee” hearing cases involving conflicts between residents. There is a mediation session that is facilitated by the captain or another member of the committee. Agreements reached through this process are legally binding and are recognized by the courts. Victim-offender mediation programs were among the earliest restorative justice initiatives. 

The Czech Republic The Probation and Mediation Service is involved in pretrial and court proceedings in an attempt to mediate effective and pro-social resolutions to crime-related conflicts. Mediation may only be carried out with the voluntary consent of the two parties. Mediators are skilled in effective negotiations. They help the disputing parties to settle their conflict and to find a mutually acceptable solution to the situation. 

A Community and family group conferencing model was adopted into national legislation and applied to the youth justice process in New Zealand in 1989. The majority of cases are handled by the police through and by police-directed or court family group conferencing. It is based on the dispute resolution traditions of the Maori. This model is now also widely used in modified form as a police-initiated diversion approach in South Australia, South Africa, Ireland, Lesotho, as well as in U.S. cities in Minnesota, Pennsylvania and Montana. Each conferencing process has a convenor or facilitator. It brings together the family and friends of both the victim and the offender and sometimes also other members of the community to participate in a professionally facilitated process to identify desired outcomes for the parties, address the consequences of the crime and explore appropriate ways to prevent the offending behaviour from reoccurring. The mandate of family group conferencing is to confront the offender with the consequences of the crime, develop a reparative plan and in more serious cases in the New Zealand model, determine the need for more restrictive supervision or custody. 

South Africa Community conferencing is used sometimes as an alternative measure programme to which an offender can be diverted from the criminal justice system . Such programmes tend to be managed by community groups or agencies with or without financial support from the government. The offender’s compliance with the terms of the agreement may or may not function under the direct supervision of law enforcement or justice officials. The outcomes of peacemaking meetings are restorative in nature: apologies, restitution and compensation. 

Canada Sentencing circles are conducted in many aboriginal communities in Canada. In circle sentencing, all participants: the judge, defence counsel, prosecutor, police officer, the victim and the offender and their respective families and community residents, sit facing one another in a circle. Circle sentencing is generally available to those offenders who plead guilty. The sentencing circle process is typically conducted within the criminal justice process, includes justice professionals and supports the sentencing process The outcome of the circle is generally submitted to the judge, who may or may not have participated directly in the circle, and is not binding on the court. Circle sentencing is an example of how the principles of restorative justice can be applied within a holistic framework in which justice system personnel share power and authority with community members. In contrast to the formal and often adversarial approach to justice, circle sentencing can help reacquaint individuals, families and communities with problem-solving skills, rebuild relationships, promote awareness and respect for values and the lives of others, address the needs and interests of all parties – including the victim, and focus action on causes, not just symptoms of problems.

Conclusion 

The Indian Criminal Jurisprudence has moved on from not recognising the concept of Alternate Dispute Resolution in criminal matters to adding the concept of plea bargaining into CrPC and also forming guidelines to recognise the mutually agreed settlement by the parties to the dispute in cases which are not of a serious nature and doesn’t impact the society at a large. Alternate Dispute Resolution is an exception to the traditional court procedures and should be used more comprehensively and regularly. Therefore, such outside court settlements are important to reduce the exorbitant burden on the courts and should also become the ‘new normal’. 

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The Loya case was one of the triggers for four judges of the Supreme Court to hold a press conference in New Delhi and launch an unprecedented attack on SC chief justice Dipak Misra against his assigning of key cases to benches headed by junior SC judges, ignoring senior ones.

“If someone thinks that Loya has died under suspicious circumstances and has asked for a probe, then an indepth probe needs to be conducted in order to get to the truth of the case. The SC stir has affected the country’s sovereignty”: Uddhav Thackeray

[gkt49]

Rahul Gandhi questions PM Modi's quiet over different issues

Rahul Gandhi questions PM Modi’s quiet over different issues

New Delhi, Apr 29 Congress President Rahul Gandhi on Sunday questioned Prime Minister Narendra Modi’s quiet over various issues including Justice BH Loya death case.

Addressing to a ‘Jan Aakrosh Rally’ at Ramleela Maidan in Delhi, Gandhi stated, “Without precedent for a long time, four Supreme Court judges came before the general population and requested equity. Modiji was noiseless. Individuals…

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Indian Supreme Court rejects calls for probe into Judge Loya's death | World

Indian Supreme Court rejects calls for probe into Judge Loya’s death | World

[ad_1] Media personnel outside the Indian Supreme Court. Photo: File  NEW DELHI: The Supreme Court dismissed on Thursday petitions calling for an investigation into the death of a lower court judge in 2014 when he was presiding over a case against Prime Minister Narendra Modi’s top political aide Amit Shah. Shah, president of the ruling Bharatiya Janata Party (BJP), had been accused of ordering…

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Apple Executive Vivek Tiwari Murder Case Up Cop Suspended For Supporting Accused Constable On Social Media Kp | विवेक तिवारी हत्याकांड: सोशल मीडिया पर यूपी पुलिस को चुनौती देने वाला सिपाही निलंबित

Apple Executive Vivek Tiwari Murder Case Up Cop Suspended For Supporting Accused Constable On Social Media Kp | विवेक तिवारी हत्याकांड: सोशल मीडिया पर यूपी पुलिस को चुनौती देने वाला सिपाही निलंबित

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एपल के एरिया मैनेजर विवेक तिवारी हत्याकांड के बाद मामले में आरोपी सिपाहियों के खिलाफ कार्रवाई को लेकर सोशल मीडिया पर डीजीपी ओपी सिंह को चुनौती देने वाले सिपाही सर्वेश चौधरी को निलंबित कर दिया गया है. वह यूपी के एटा जिले में कार्यरत था. विवेक तिवारी हत्याकांड में वरिष्ठ अधिकारियों द्वारा सिपाहियों को आरोपी के रूप में पेश…

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Supreme Court dismisses review plea in Judge Loya death case

Supreme Court dismisses review plea in Judge Loya death case

Loya, who was hearing the high-profile Sohrabuddin Sheikh fake encounter case, had died of cardiac arrest in Nagpur on December 1, 2014 when he had gone to attend the wedding of a colleague’s daughter. (PTI)

The Supreme Court today dismissed a plea seeking review of its April 19 verdict that had held that Special CBI judge B H Loya had died of “natural causes” on December 1, 2014 and had…

[noorarora1]

No SIT probe into Judge Loya death case as SC dismisses review plea

The Supreme Court on Tuesday dismissed a plea seeking review of its April 19 verdict that had held that Special CBI judge B H Loya had died of "natural causes" on December 1, 2014, and had rejected PILs seeking an SIT probe into the death, questioning their motive.  

A Bench comprising Chief Justice Dipak Misra and justices A M Khanwilkar and D Y Chandrachud did not find any merit in the review petition filed by Bombay Lawyers Association, one of the petitioners in the case.

"We have carefully gone through the review petition and the connected papers, but we see no reason to interfere with the order impugned. The review petition is, accordingly, dismissed," the Bench said.

The apex court had rejected the PILs seeking a probe into the death of Loya, ruling that he had died of "natural causes", and held that the petitions were moved by political rivals to settle scores, which was a serious attempt to scandalise the judiciary and obstruct the course of justice through a "frontal attack" on its independence.

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Should Judge Loya death case be probed? SC to hear review plea today | india news The Supreme Court will today hear a plea seeking review and recall of its judgment that held that Special CBI Court Judge BH Loya had met with natural death and that a PIL was misused for advancing political agenda and to scandalise the judiciary.

[saviolinette-blog]

SC rules out fresh probe in Sohrabuddin case judge Loya's death: 10 points

The Bench comprising Chief Justice Dipak Misra and judges A M Khanwilkar and D Y Chandrachud, which dismissed the pleas, said that attempts were made to scandalise the judiciary

The Supreme Court on Thursday dismissed a batch of pleas seeking an independent probe into the mysterious death of special Central Bureau of Investigation (CBI) judge B H Loya, who was hearing the high-profile Sohrabuddin Sheikh fake encounter case involving Bharatiya Janata Party (BJP) Amit Shah. Loya had on December 1, 2014 died of cardiac arrest in Nagpur, where he had gone to attend the wedding of a colleague's daughter.

Further, the apex court said that the submissions of the petitioners prima facie amounted to criminal contempt of court but that it was not initiating contempt proceedings.

Attempts were made to scandalise the judiciary by levelling serious allegations against judges and judicial officers of the Bombay High Court, said a Bench comprising Chief Justice Dipak Misra and judges A M Khanwilkar and D Y Chandrachud. Further, dismissing the pleas for an independent probe, the Bench said there was no reason to doubt the statements of four judges on the circumstances leading to the death of judge Loya. The apex court said that the documents placed on record and their scrutiny established that the CBI judge's death was due to a natural cause.

The apex court had earlier asked the Maharashtra government to submit the post-mortem report of the CBI judge, who had died under suspicious circumstances in 2014, citing that the "matter was very serious". Maharashtra-based journalist B S Lone and activist Tehseen Poonavala had filed independent pleas seeking a fair probe into the death of Justice Loya.

The issue of Justice Loya's death had come under the spotlight in November last year after media reports quoting his sister fuelled suspicion about the circumstances surrounding his demise and its possible links with the Sohrabuddin Sheikh fake encounter case. However, Justice Loya's son had on January 14 said in Mumbai that his father had died of natural causes.

In the Sohrabuddin Sheikh fake encounter case, BJP President Amit Shah, Rajasthan Home Minister Gulabchand Kataria, Rajasthan-based businessman Vimal Patni, former Gujarat police chief P C Pande, Additional Director General of Police Geeta Johri and Gujarat police officers Abhay Chudasama and N K Amin, have already been discharged.

Here are the top 10 developments around the Supreme Court's verdict on pleas seeking an independent probe into CBI judge B H Loya's death:

1) SC dismisses pleas seeking fresh probe in judge Loya's death: The Supreme Court on Thursday ruled that there would be no independent probe into the death of special CBI judge B H Loya, who was hearing the high-profile Sohrabuddin Sheikh fake encounter case, and dismissed a batch of pleas seeking the same.

2) 'Attempt made to scandalise judiciary': The Bench comprising Chief Justice Dipak Misra and judges A M Khanwilkar and D Y Chandrachud, which dismissed the pleas, said that attempts were made to scandalise the judiciary by levelling serious allegations against judicial officers and judges of the Bombay High Court.

3) Documents show judge Loya died of natural causes, says SC: The Bench further said that there was no reason to doubt the statements of the four judges on the circumstances leading up to the death of judge Loya, adding that the documents placed on record and their scrutiny established that the special CBI judge's death was due to natural causes.

4) Frivolous litigation filed to settle political scores, says SC: The Supreme Court said that with these petitions it became clear that a real attempt and a frontal attack was being made on the independence of the judiciary. The apex court also said that a frivolous and motivated litigation had been filed to settle a political score. It also said that political battles should be fought in the "halls of democracy" and not inside court, reported Bar & Bench.

5) SC says petitioners in contempt of court but no action to be taken: The judgment made strong observations against the conduct and submissions of senior counsel Dushyant Dave, V Giri, and advocate Prashant Bhushan, reported Bar & Bench, adding that the Supreme Court stated the submissions of the petitioners prima facie amounted to criminal contempt of court. However, the court said that it was not initiating civil contempt against the petitioners for scandalising the judiciary.

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लोया की मौत मामले में दायर याचिका 31 जुलाई को सुनेगा सुप्रीम कोर्ट

लोया की मौत मामले में दायर याचिका 31 जुलाई को सुनेगा सुप्रीम कोर्ट

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[loyallogic]

Indian Judiciary: Judges – Are they debilitating Justice?

This article is written by Sara Suresh, pursuing B.A.LL.B from Symbiosis Law School,Pune. The article discusses and analyses Justice loya death, Sexual Harassment case against former CJI Ranjan Gogoi and the retired Judges as MP’S where Judges had used their power and discretion in extreme level and had failed to deliver Justice.

Introduction

The Indian Judiciary is conferred with an enormous role and power of interpreting statutes and adjudicating upon controversies between citizens or states or between a citizen and the state. The Supreme Court is even called the Guardian of our Constitution. The main function of Indian Judiciary is to maintain the rule of law in the country. In a country like India, with a written Constitution, Courts have an additional duty of protecting the Supremacy of the Constitution. 

But, Whether the Judiciary as an institution has earned Public Trust? Whether the vast number of pending cases is the only Gordian knot the Judiciary is facing? The answer for both these questions would be a big “No”! There are several instances where the Judiciary has abstained from administering Justice. Some of the very important cases are discussed below.

Justice B.H. Loya Death

The Court in Tehseen Poonawalla v. Union of India and Others has weakened the bedrock of Justice. The death of Justice B.H. Loya was questioned in the case and an independent enquiry into his death was requested. The Supreme Court dismissed the petition on the ground that the documentary evidence indicates that his death was under natural circumstances. On analysing this case legally, it gives rise to many speculations.

Firstly, there exist several inconsistencies in the case such as the time of his death, the manner in which he was taken to the hospital and to his home with blood on his shirts and without being accompanied by any security. He had a sound medical history and was even offered a bribe in order to deliver a favourable Judgement. The Court after hearing the statements of the four judges who were with Justice B.H. Loya stated that there is no ground for reasonable suspicion of his death. The evidence submitted by both the petitioner and respondent are documentary in nature and the Court arbitrarily passed its judgement on the statement of the Judges claiming that it has a ring of truth.

Justice Y Chandrachud in an earlier Judgement stated that Judges are not above the law in a constitutional democracy which is dedicated to Rule of Law and Equality for its citizens. Rule of law indicates some higher kind of law which is just, reasonable and non-discriminatory. One of the main facets of the Rule of Law is “Equality before Law”. Every man, irrespective of his rank or condition, is subject to the ordinary law of the country. But, however in the present case the statement of the Judges were not subject to oath or cross examination. As the Supreme Court has earlier observed even procedural inequities amount to arbitrariness. How can the court come to a definite conclusion about the death of Justice B.H.Loya without going through the legal process that is envisaged by the law? 

Secondly, B.H.Loya was dealing with the Sohrabuddin Sheikh Fake Encounter Case at the time of his death which carries grave inconsistencies. Justice J.T. Utpat was the predecessor of Justice Loya and he was transferred overnight. Both the Judges had reprimanded Amit Shah, the current BJP-President and one of the accused for not appearing in the Court. Justice M.V.Gosavi presided over the case after his death and discharged it after two weeks of hearing. These facts were not contemplated by the Court.

The Supreme Court in Central Bureau of Investigation v. Amitbhai AnilChandra Shah transferred the Encounter case to Mumbai and directed that the trial should be conducted by the same officer from its inception to the end. But the Mumbai High Court didn’t adhere to the order of the Apex Court. How can other organs of the Government be questioned of implementation when a part of Judiciary itself makes a mockery of the Apex Court’s Orders? The Supreme Court has held that wilful non compliance of court’s order amounts of contempt of court. However, in the Encounter case, neither the Supreme Court nor any other authority has taken cognisance of such contempt in spite of their power to do so.

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Sexual Harassment Allegation against Former Chief Justice of India Ranjan Gogoi

The Supreme Court in “In Re: Matter of Great Public importance touching upon the independence of Judiciary” murdered the Constitutional values. In this case a junior court staff submitted an affidavit stating that she was sexually harassed by the (Former) Chief Justice of India Ranjan Gogoi and the Court initiated suo-moto proceedings in order to determine whether the allegations are fabricated. There are several procedural irregularities in this case and it gives rise to many doubts.

Firstly, the allegation was made against the Chief Justice of India and not against the Judiciary. Why a sexual harassment allegation against the CJI was made into a case dealing with the Independence of Judiciary?

Secondly, the CJI (against whom the allegations were made) convened an urgent hearing immediately after the allegations were made by constituting a special Bench headed by him. It was reiterated by the Supreme Court in many cases that “No one can be a judge in his own case”. All citizens in India are bound by Rule of Law. Does the CJI have the power to override the Principal of Natural Justice at his discretion?

Thirdly, an In-House enquiry Committee was established with three Judges as its members who were junior to the accused Chief Justice of India. In the earlier sexual harassment cases against the Judges, an In house panel was constituted with Judges who has not worked with the accused Judges. This procedure was not followed in the present case. Whether the Chief Justice of India is not considered to be equal to other citizens of the country? Why was this special treatment given to him when the constitution doesn’t confer him any exceptional status?

Fourthly, the In-House Committee passed an order stating that there is no substance in the allegations made by the Complainant and the final report was submitted to the Chief Justice of India. It was held in Indira Jaisingh v. Supreme Court of India and Another that the report of the In house Committee is not enforceable to be made public. But the inquiry in the present case is an informal one and the precedent states that committee proceedings cannot be disclosed to the Public. But why wasn’t the report submitted to the complainant? Fifthly, the complainant and her family were fired from their job and were subject to persecution without stating any reasons. Did the court find any substance in it? If it had found any reasonable grounds for their dismissal, then why the complainant’s termination was withdrawn with payment of full wages by the Present Chief Justice of India S.A.Bobde. Why was the complainant not given any legal assistance in spite of her hearing disability? Above all why weren’t these questions raised by the legal luminaries of India?

In the present case, the complainant later withdrew from the in-house committee inquiry citing various reasons that:

In spite of her hearing disability, she was not assisted and allowed the presence of a lawyer during the proceedings.

Neither video nor audio recordings were allowed during the course of the proceedings.

The In-House committee’s reports and procedures were not provided and informed to the complainant.

Retired Judges as MP’s

Within five months of retirement, Former Chief Justice of India Justice Ranjan Gogoi was sworn in as a member of Rajya Sabha. Erstwhile, Former Chief justice Ranganath Misra and Justice Baharul Islam were admitted to Rajya Sabha There are two commonalities that exist between all three Judges. 

First and foremost, according to our Constitution, only those who have special knowledge or practical experience of matters such as literature, science, art and social services should be nominated to Rajya Sabha. But all the three Judges do not satisfy this criterion. Furthermore, all the three Judges have presided and disposed of several political cases during their Office tenure. 

Judges are provided with reasonable security to keep them immune from the strains of contemporary politics and enable them to work in an independent atmosphere. It was held in Nixon M Joseph v. Union of India that independence of Judiciary refers to be free from executive (Bureaucracy), political interference and interference of any such type. The independence of Judiciary is one of the salient features of the Constitution. The Judges of the Supreme Court has observed that it is the bulwark of democracy. 

Both the concepts, “Separation of powers between the legislative, the executive and the Judiciary” and the “Independence of the Judiciary” is considered to be the very heart of constitutional scheme. If any decision of the Government or Court undermines such independence, it would impinge upon the basic structure of Constitution as held in the case Brij Mohan Lal v. Union of India. 

Judicial independence gets eroded by the practise of employing retired Supreme Court Judges in various Government and ministerial capacities. The Law Commission criticized the practice stating that it is undesirable for the retired Supreme Court Judges to look forward to such employment as it interferes with the Independence of Judiciary and it shouldn’t be continued.

The Commission also stated that any average citizen may well get the impression that a Judge who is employed by the Government post his retirement would have compromised his position as a Judge.

Dr.B.R.Ambedkar in the Constituent Assembly stated that the chances of Government influencing the Judiciary are very remote as the Judiciary adjudicates the issues between citizens and very rarely between citizens and the Government. 

But today a large chunk of Supreme Court cases have the Government as a party. The father of the Indian Constitution also stated in the assembly that the relations between Executive and Judiciary are so separate and distinct that the Executive hardly has any chance of influencing the decisions of the Judiciary. Many a time, retired Judges are even appointed to pure and simple executive posts such as, Governor of States. Precedents would include Justice Fazl Ali (Former Governor of Odisha), Justice Fatima Beevi (Former Governor of TamilNadu) and Justice P Sathasivam (Former Governor of Kerala).

Law should be progressive according to the changes in society. India is a country which has both “Constitution” as well as “Constitutionalism”. The Constitution not merely confers powers on different organs of the Government but also seeks to restrain those powers. Constitutionalism on the other side insists upon the limitations being placed on the Governmental powers and envisages checks and balances on different organs of the Government and not making them arbitrary. At present, the judicial independence is affected to a large extent by the internal networks of the Judges itself! It is time for all of us to recognise this reality and act upon it. There is a dire need to enact new laws and devise new mechanisms to look into all these loopholes in Judiciary and to uphold the constitutional values. Justice done to some and denied to others doesn’t amount to Justice! Judiciary can be completely effective only when it is both independent and accountable.

References

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जस्टिस कोलसे पाटिल बोले-जज लोया की हत्या हुई है, अगला नंबर मेरा

जस्टिस कोलसे पाटिल बोले-जज लोया की हत्या हुई है, अगला नंबर मेरा

जस्टिस लोया केस में सुप्रीम कोर्ट के फैसले को काला दिन बताते वाले बंबई हाईकोर्ट के रिटायर्ड जस्टिस बीजी कोलसे पाटील ने खुद की हत्या की आशंका जताई है। दैनिक भास्कर की रिपोर्टके मुताबिक बीते रविवार (30 अप्रैल, 2018) को जस्टिस पाटील ने कहा कि सोहराबुद्दीन शेख फर्जी मुठभेड़ की सुनवाई करने वाले जज बीएस लोया की संदिग्ध हालातों में मौत हो गई। लोया के अलावा उनके दो राजदारों एडवोकेट श्रीकांत खंडालकर और…

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Supreme Court expels requests looking for special judge B H Loya's death case

Supreme Court expels requests looking for special judge B H Loya’s death case

New Delhi, Apr 19 The Supreme Court today rejected a clump of supplications looking for a free test into the charged puzzling demise of uncommon CBI judge B H Loya, who was hearing the prominent Sohrabuddin Sheik counterfeit experience case.

Loya had purportedly kicked the bucket of heart failure in Nagpur on December 1, 2014 when he had gone to go to the wedding of an associate’s little girl.

A…