Independence of judiciary includes non-accountability

The Delhi high court has recently held that birds have a fundamental right to life and liberty and cannot be kept in cages —although our founding fathers never envisaged it. The point here is the Constitution is what the judges declare it to be although our founding fathers may not have agreed.

This is why the fundamental right to life and liberty of the woman who alleged Chief Justice of India Ranjan Gogoi had misbehaved with her was junked by the three judges who refused her a lawyer but cleared Justice Gogoi of any wrongdoing sans proper procedure. If a terrorist like Ajmal Ali Kasab who killed 72 persons was given a lawyer, there is no reason why this woman should be refused one. Except for the fact that she killed the reputation of the 46th CJI. Permanently.

Her reputation was further besmirched in her absence when the chairman of the Bar Council of India, Manan Kumar Mishra, declared she was not a “simple” lady whatever that means. Even though he does not have the locus standi to comment on the issue, Mishra endorsed the clean chit given to CJI Ranjan Gogoi.

The BCI chairman’s openly partisan backing of CJI Ranjan Gogoi triggered a letter endorsed by over 200 lawyers, including law firm partners which stated, “…we have lately watched with deep concern, as you have made several reprehensible public statements which demonstrate a serious lack of principled leadership of the Bar, and a glaring lack of commitment to basic constitutional values of equality and non-discrimination, not to mention a glaring violation of your duties, as a lawyer, towards the pursuit of justice.“

Formally signed off by the Women of India for Collaboration and Empowerment (WOICE) in Law, the letter demanded Mishra retract his retrograde statements and make a public apology. Without a trial or any evidence before him, the BCI chief claimed the clean chit given to CJI Ranjan Gogoi was “totally just and proper.

“Without having the authority, he asked Parliament to amend laws relating to sexual offences such as rape under Section 376 on the astounding claim that 90% complaints of sexual offences made by women were maliciously resulting in acquittals, leading to the inference that he has put his foot in his mouth.

But to return to what is known as “independence of the judiciary,” CJI Ranjan Gogoi set up a three-judge bench over which he presided although he was the main accused and should have recused himself. He castigated the “unscrupulous woman” for leveling allegations against him in her affidavit sent to 22 judges in her absence while lamenting the “independence of the judiciary” was at stake.

Strangely, this same bogey of “independence of the judiciary” was raised when CJI Ranjan Gogoi had alleged his predecessor CJI Dipak Misra was allegedly bench-fixing by allotting sensitive matters to benches of his choice. One of these benches was the Judge Loya case which the former CJI Dipak Misra allotted to Justice Arun Mishra.

The so-called independence of the judiciary was again displayed for all to see when the collegium accepted the names of two lawyers for judgeship while rejecting three others. Among the two cleared for elevation as high court judges was a young advocate Vishal Mishra, who would never have come to the notice of the collegium, being below the age bar adopted by the collegium itself.

“He may be an extraordinary lawyer, but he also happens to be the nephew of Justice Arun Mishra, the fourth senior most judge of the Supreme Court,” who was indirectly identified by alleged iconoclast judge, Justice Jasti Chelameshwar as the judge chosen for allotting the PIL concerning the alleged mysterious death of Judge Loya PIL. Putative Justice Vishal Mishra’s relationship with controversial Justice Arun Mishra was pointed out by Dushyant Dave, the president of the Supreme Court Bar Association.

This was the same Justice Arun Mishra who heard the conspiracy theory against the CJI propounded by controversial advocate Utsav Bains, who claimed he was offered Rs 1.50 crore to represent the alleged victim of sexual harassment. Justice Arun Mishra referred the issue to retired Justice A K Patnaik, under whom CJI Ranjan Gogoi had once worked in the Gauhati high court. What will be the outcome is anybody’s guess.

But the collegium’s elevation of Justice Bhushan Gavai, who is known to be close to the next CJI-in-waiting, Justice Sharad Arvind Bobde, from Nagpur where Justice Gavai was appointed a public prosecutor in the year 2000, has evoked mixed reactions from the Mumbai bar.

Justice Gavai did his apprenticeship under the late Babasaheb Bhosale, who was a former chief minister of Maharashtra and whose son, Justice Dilip Bhosale, was elevated as a high court judge and retired as the chief justice of the Madhya Pradesh high court.

Justice Gavai is presently the third seniormost in the Bombay high court and is part of the collegium which recommends lawyers for a judgeship. He worked under the late Raja Bhonsle till 1987. As pointed out by Dushyant Dave, Justice Gavai allowed Criminal Application No 824/2014, quashing criminal proceedings pending against Maharashtra chief minister Devendra Fadnavis, in respect of several offences, many of which were of very serious nature.

The order was passed despite many office objections, just a day after the application was filed on December 23, 2014. This was done on a joint petition of the complainant and the accused. Justice Gavai’s judgment was clearly of assistance to Devendra Fadnavis, who perhaps had failed to disclose the said case in his nomination form and was facing an election petition No.1 of 2014 on amongst others, that same ground. If the independence of the judiciary means quashing a criminal petition against a head of state like a chief minister, well then, Justice Gavai fits the bill.

Secondly, Justice Gavai with Justice S B Shukre declared he had accompanied Judge Loya to hospital in a press interview on November 17, 2017, concerning the alleged suspicious death of the late Judge Loya, who presided over the CBI court which was hearing criminal conspiracy charges against BJP strongman Amit Shah. The news report stated, “Both judges said there was nothing about the circumstances of the death to raise any suspicion.”

The architect of the Constitution, Dr Babasaheb Ambedkar never envisaged the CJI as having the last say in who should be appointed a judge. Confirming this after striking down the 99th Constitutional amendment for judicial appointments, Justice Jagdish Singh Khehar had observed: Para 309.

“It is surprising that the Chief Justice of India on account of the position he holds as paterfamilias of the judicial fraternity, and on account of the serious issues that come up for judicial adjudication before him, which have immeasurable political and financial consequences, besides issues of far-reaching public interest, was suspected by none other than Dr B R Ambedkar during the course of the Constituent Assembly

Debates when he declined to accept the suggestions made by some members of the Constituent Assembly that the selection and appointment of judges to the higher judiciary should be made with the “concurrence” of the Chief Justice of India by observing that even though the Chief Justice of India was a very eminent person, he was after all just a man with all the failings, all the sentiments, and all the prejudices, which common people have…Was the view of the Constituent Assembly, and the above-noted distrust, legitimate?”

The fact that the CJI was after all “just a man with all the failings, all the sentiments, and prejudices which common people have” has now been vindicated after the latest scandal to rock the Supreme Court. For the independence of the judiciary would perhaps include the right to remain unaccountable for alleged charges of bench-fixing levelled against the 45th CJI by his own colleagues and of alleged misbehavior levelled against the 46th CJI by a hapless junior Supreme Court employee.

Olav Albuquerque holds a PhD in Media Law. He is a journalist-cum-lawyer of the Bombay High Court.

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