The 46 th Chief Justice of India (CJI), Ranjan Gogoi, made a low-key exit from the Supreme Court just 44 days before 2019 followed his example, letting down the high expectations pinned on a CJI perhaps by doing what the government wanted him to do in the two cases of Assam’s National Register of Citizens and the Ayodhya imbroglio. So, the year 2019 can be laconically termed as the “Year of Chief Justice Gogoi.”
The 46 th CJI was no dilettante in speed-reading and finished his board on Mondays and Fridays by 11.30 a.m. after meticulous study of the huge briefs the previous day, proving his redoubtable grasp of the Constitution.
But in one case, he heard a matter concerning a society of which he was chairman of a committee even though two other judges (Justices Khanwilkar and Nageswara Rao) who were only members of that same committee had recused themselves. Apparently, a CJI though the first among equals is more equal than his equals.
But the CJI apart, the record of the apex court to protect basic human rights in Kashmir was unimpressive. “The Supreme Court of India has been slow to deal with habeas corpus petitions, freedom of movement and media restrictions,” commented the United Nations High Commissioner for Human Rights.
Senior advocate Dushyant Dave also wrote that: “The court’s handling of these cases was reminiscent of the ADM Jabalpur case during the Emergency” when it laid down that life was a gift of the state which could take it away at any time.
Dave added: “More than a million people have been locked down (sic) in one of the biggest clampdowns by the Indian armed forces; and all under cover of section 144 of the criminal procedure code. Article 21 is about life and liberty and all that the Supreme Court has done is to defer these crucial matters without taking the government to task.”
A three-judge bench comprising Justices N V Ramanna, Subhash Reddy and Bhushan Gavai reserved their judgment on November 27 in the case pertaining to a lockdown in Kashmir which had already crossed 150 days, making it arguably the longest period of suspending fundamental rights in the disturbed valley.
In a separate case, the top court showed disinterest in disposing of a petition challenging the issuing of electoral bonds where the Election Commission of India itself declared the scheme would curtail transparency in funding political parties.
By the time the Justice Gogoi-led bench started hearing the petition last March, the bonds had already been bought for the Lok Sabha polls. After several hearings in the run-up to the Lok Sabha polls, another CJI-led bench directed all political parties to submit details of their funding in a sealed cover to the ECI by May 30.
But after that, the very same bonds were used in the subsequently-held elections in Maharashtra and Haryana with the court showing disinterest in disposing off the matter.
Only after a series of investigative news reports proving the Modi government had ignored the fears of the Reserve Bank of India and the ECI against anonymous electoral bonds, the Supreme Court agreed to hear the arguments in January.
Even on its non-judicial side, the Supreme Court collegium has raised suspicion that it has succumbed to pressure from the Modi government to recommend Justice Akhil Qureshi as a chief justice of a tiny high court like Tripura instead of the large and prestigious Madhya Pradesh high court which the upright judge was earlier to have headed.
As a judge of the Gujarat High Court, Justice Akhil Abdulhamid Qureshi had enjoyed the respect of the Gujarat Bar Association which strongly opposed the elevation of his junior Justice A S Dave as acting chief justice of the same court after the elevation of Justice Subhash Reddy to the Supreme Court.
The collegium transferred Justice Qureshi to the Bombay High Court, which reduced his seniority to number four before recommending him as the chief justice of the tiny Tripura high court which was set up in 2013. Quite a climbdown.
Significantly, Justice Qureshi had passed two major orders affecting Narendra Modi and Amit Shah between 2010 and 2011 when both enjoyed unbridled power in Gujarat.
On August 06, 2010, Justice Qureshi sent Amit Shah to two-day CBI custody to be interrogated for his alleged involvement in the fake encounter killings of underworld don Sohrabuddin Sheikh and his wife Kauser Bi which later snowballed into another controversy about the alleged mysterious death of Judge Brijmohan Loya.
During October 2011, Justice Qureshi passed an order against Modi in the matter of appointment of the Lok Ayukta. Then Governor Kamla Beniwal had on August 25 appointed retired Judge Mehta as the Lok Ayukta, bypassing the Modi government. The government challenged the appointment of Lok Ayukta as Modi felt that Mehta was an “activist judge”.
Mehta’s name had been recommended by the then Chief Justice S J Mukhopadhyaya, who was later elevated to the Supreme Court. Justice Akil Qureshi upheld Mehta’s appointment saying the consultation between the chief minister and the chief justice had concluded. Therefore, the state government should not have moved court which went against Narendra Modi.
The judge said under the Gujarat Lok Ayukta Act, the opinion of the chief justice was final. Justice Qureshi also upheld life imprisonment awarded to 14 persons for the massacre of 23 persons in a village during the 2002 Gujarat riots and the sentence of seven years in jail to five others in a post-Godhra riot case.
This was seen as a pretext for the Central government to sit on the file of Justice Qureshi obstructing his elevation as chief justice of the Madhya Pradesh High Court. Senior lawyers speculate that as a quid pro quo, the apex court collegium recommended Justice Qureshi as chief justice of the comparatively insignificant Tripura High Court.
The writer holds a Ph.D in Media law and is a journalist-cum-lawyer of the Bombay High Court.