Who dictated the decisions of former CJI Dipak Misra?

That former CJI Dipak Misra allegedly allotted sensitive cases like the mysterious death of Judge B H Loya to benches of his choice “as he was remote controlled by some external source and this impacted the administration of justice,” has been the most explosive revelation made by a Supreme Court judge in Indian judicial history. The former CJI has chosen not to rebut the charges against him.

Justice Kurian Joseph, who waited till he retired on November 29 to reveal this, was the third seniormost judge of the collegium which was accused by Justice Jasti Chelameswar of being spectators in appointment of high court and supreme court judges. Chelameswar had also indirectly indicted Justice Arun Mishra for being chosen to hear the petition demanding a probe into Judge Loya’s mysterious death.

Justice Mishra, who has been accused of being “friendly” with BJP leaders who met at his home, will join the collegium on December 31, 2018 after Justice Madan Lokur retires. When Justice Sharad Bobde is sworn in as the next CJI on November 18, 2019, Justice Mishra will play a vital role in selecting high court and apex court judges.

Adding fuel to the raging fire is the fact that Prime Minister Narendra Modi said the apex court should be free of any “influence” while the Congress has demanded a discussion in Parliament on the issue. This has vindicated their attempt to impeach CJI Misra which they abandoned earlier for God knows what reason.

A controversial lawyer from Nagpur, Satish Uke, has filed a writ petition in the Nagpur bench of the Bombay high court alleging that Judge Loya was killed by an overdose of radiation. He has sought seizure of all records and sent the purported evidence to a number of dignitaries after claiming his life was in danger.

Three benches of the Nagpur high court have recused from hearing this writ petition because the judges before whom it came up were present at the wedding of Justice Swapna Joshi’s daughter. A two-month jail sentence for committing contempt of court and being debarred from practice for one year has not lessened Satish Uke’s ardour to expose injustice. He alleged he was offered a bribe to hand over evidence of the radiation to certain politicians.

But to return to Justice Joseph’s revelation, the judge said it was CJI Misra’s series of actions which led the collegium to infer he was “being remote controlled under some external influence.” His allegation is stunning because the judiciary is theoretically insulated from any pressure. And if this is not true, “democracy is in danger” as Justice Chelameswar declared to the nation on January 12, making this the second blackest day in Indian judicial history, after April 26, 1973 when Justice A N Ray superceded three judges senior to him to become the CJI, at Indira Gandhi’s behest. Justice Hidayatullah boycotted the swearing-in function.

The President is the head of both the executive and the legislature because unless he administers the oath of office to each minister or MP, neither the government nor Parliament comes into existence but he has no role to play in selecting judges apart from signing their warrants of appointment and swearing in the CJI. The CJI is neither subordinate to the prime minister nor to any other constitutional office, which is why judges of the constitutional courts retire at midnight of their 62nd or 65th birthday.

The CJI is sworn to uphold the Constitution and the fundamental rights of the Indian people “without fear or favour, affection or ill will.” And if he keeps proclaiming, he is the master of the roster to assert his monopoly in assigning cases to benches of his choice — there is something amiss. Even as master of the roster, he needs to be assisted by the collegium to ensure cases are allotted for delivery of justice and not individual proclivities of certain judges. The CJI is master of the roster for the welfare of the people and not for the welfare of the executive.

The collegium system of appointing judges was devised in 1956 because the founding fathers never envisaged such a mechanism. Prior to the first judges’ case, it was the PMO who selected and transferred judges. Today, we have a situation where Justice Indrajit Mohanty has been transferred from the Orissa high court to the Mumbai high court in the “interests of the administration of justice.” An IAF serviceman, Jayanta Kumar Das from Orissa had complained about him but was allegedly denied the findings of the supreme court committee which probed his complaint.

We have a situation where in the past, judges like Chennai high court judge N Arumugham, accused of being close to the late Tamil Nadu chief minister Jayaram Jalalithaa, Gujarat high court judge V H Bhairavia and Allahabad high court judge Vijay Bahuguna were transferred to the Bombay high court so litigants were unaware of the complaints against them. Bahuguna resigned as a high court judge after allegations of corruption and later resigned as chief minister of Uttarakhand for misusing flood relief funds.

Congress leader Baharul Islam was made a Supreme Court judge by the Indira government in December 1980 after he retired as a high court judge. Six weeks before he retired, Islam exonerated the then Congress chief minister of Bihar, Jagannath Mishra, in a forgery case. A month later, he contested as the Congress candidate for the Barpeta Lok Sabha seat, emulating Vijay Bahuguna.

We will forever remain indebted to judges like Ranjan Gogoi, Jasti Chelameswar, Kurian Joseph and Madan Lokur for ensuring what former CJI Dipak Misra did was not kept secret. These were the brightest days in Indian judicial history.

Olav Albuquerque holds a PhD in law and is a lawyer-cum-journalist of the Bombay high court.

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