Collegium: Further deliberation needed for elevating Judge to Supreme Court

The Supreme Court collegium has favoured “further deliberation” and “broad-based consideration” of names of Chief Justices of various high courts before sending its decision reiterating the elevation of Uttarakhand Chief Justice K M Joseph as a judge of the top court.

The resolution of the May 16 collegium meeting, uploaded on the supreme court website today, stated that there was need for deliberation on bringing the judges from the high courts, which are not represented, to the Supreme Court.

“Today (May 16), in the meeting of the Collegium, a unanimous view was expressed that there should be further deliberation and broad-based consideration of the names of the Chief Justices as well as Judges of the High Courts which are at present not represented in the Supreme Court.

“In view of the above, the meeting stands deferred to be held at the earliest,” the resolution said.

Official sources on May 16 had said that the Collegium comprising Chief Justice Dipak Misra and four senior most judges — Justices J Chelameswar, Ranjan Gogoi, M B Lokur and Kurian Joseph, deliberated for more than an hour. This meeting was the second in five days.

Today was the last working day of Justice Chelameswar, who retires on June 22, as the court’s summer vacation starts tomorrow.

At its previous meeting on May 11, the Collegium had agreed in principle to reiterate its recommendation for elevating Justice Joseph as a judge of the supreme  court, almost three weeks after it was returned by the Centre, but could not decide on a date.

It had then adopted a resolution which also stated that there was a need for further discussion on the issue of sending the other names of judges to the Centre.

“The Chief Justice and other members of the Collegium have, on principle, unanimously agreed that the recommendation for appointment of Justice K M Joseph, Chief Justice, Uttarakhand High Court (Parent High Court: Kerala)as a Judge of the Supreme Court should be reiterated.

“However, the said reiteration should also be accompanied by the recommendation of the names of Chief Justices of High Courts for elevation as Judges of the Supreme Court, for which detailed discussion is required,” the resolution of May 11 had said.

It had also decided to consider the names of other High Court Judges for elevation as Judges of the Supreme Court.

Official sources said those high court judges who are in the race to be elevated to the apex court are Chief Justice of Madras High Court Indira Banerjee, who is originally from the Calcutta HC, Gujarat HC Chief Justice R Subhash Reddy, whose parent cadre is Telangana and Andhra Pradesh HC, and Karnataka High Court Chief Justice Dinesh Maheshwari, who is originally from Rajasthan HC.

The government had on April 26 returned the Collegium’s recommendation to elevate Justice Joseph seeking its reconsideration, saying the proposal was not in accordance with the top court’s parameters and there was adequate representation of Kerala in the higher judiciary from where he hails. It had also questioned his seniority for elevation as a judge of the apex court.

The Collegium has recommended the name of Additional Judge Justice Ramchandra Singh Jhala to be appointed as a permanent judge of the Rajasthan High Court.

“… the Collegium resolves to recommend, for the present, that Justice Ramchandra Singh Jhala, Additional Judge be appointed as Permanent Judge of the Rajasthan High Court against one of the existing vacancies,” its resolution had said.

Collegium meet on Justice K M Joseph’s elevation to Supreme Court concludes

A crucial meeting of the Supreme Court Collegium was held today to discuss the issue of reconsidering the name of Uttarakhand Chief Justice K M Joseph for elevation to the apex court, after it was returned by the Centre.

Official sources said the members of the Collegium deliberated on the issue for nearly an hour. Details on the outcome of the meeting are awaited.

All members of the Collegium — Chief Justice Dipak Misra and Justices J Chelameswar, Ranjan Gogoi, M B Lokur and Kurian Joseph, participated in the deliberations.

The decision to convene the meeting was taken late last evening by the CJI.

It is pertinent to mention that Justice J Chelameswar, the senior-most judge of the apex court, had on May 9 written a letter to the CJI urging him to convene the Collegium meet to urgently forward Justice Joseph’s name to the Centre.

The government had on April 26 returned the Collegium’s recommendation to elevate Justice Joseph seeking its reconsideration, saying the proposal was not in accordance with the top court’s parameters and there was adequate representation of Kerala in the higher judiciary from where he hails. It had also questioned his seniority for elevation as a judge of the apex court.

According to an apex court official, Justice Chelameswar, in his letter sent to the CJI, had conveyed that he was reiterating his decision favaouring elevation of Justice Joseph as the judge of the top court as there was no change in the circumstances that had led the Collegium to recommend his name to the government on January 10.

It is also learnt that Justice Chelameswar, who retires on June 22, has responded to all the points raised in the communication to the CJI by Law Minister Ravi Shankar Prasad expressing reservations on the elevation of Justice Joseph.

The meeting of the Collegium was expected to take place on May 9 but Justice Chelameswar was on leave.

Justice Kurian Joseph, during his visit to Kerala last week, had also reportedly made it clear that he was in favour of reiterating the recommendation of the Collegium on the issue concerning the Uttarakhand Chief Justice.

PIL in SC over CJI’s administrative authority as of roster

Senior advocate and former Law Minister Shanti Bhushan today filed a PIL in the Supreme Court seeking clarification on the administrative authority of the Chief Justice of India (CJI) as the master of roster and for laying down the principles and procedure to be followed in preparing it for allocation of cases.

He filed the PIL through his advocate and son Prashant Bhushan who wrote a letter to the supreme court’s secretary general stating that the matter should not be listed before a bench that includes the CJI.

In the letter, Prashant also said that it would be appropriate that the petition be listed before three senior-most judges of the top court for allocating it before an appropriate bench.

In the petition, CJI Dipak Misra has been named as one of the respondents along with the registrar of the Supreme Court.

The senior advocate has stated that the “master of roster” cannot be unguided and unbridled discretionary power, exercised arbitrarily by the CJI by hand-picking benches of select judges or by assigning cases to particular judges.

The petition said the CJI’s authority as the master of roster is “not an absolute, arbitrary, singular power that is vested in the chief justice alone and which may be exercised with his sole discretion.”

It said that such an authority should be exercised by him in consultation with the senior judges of the Supreme Court in keeping with the various pronouncement of this court.

This petition assumes significance as on January 12 this year four senior most judges- Justices J Chelameswar, Ranjan Gogoi, M B Lokur and Kurian Joseph- of the Supreme Court had called a press conference and said that the situation in the top court was “not in order” and many “less than desirable” things have taken place.

The four judges had also raised the issue of allocation of important and sensitive PILs before junior judges of the supreme court.

SC judges row has been resolved: Bar Council of India

The Bar Council of India (BCI) today said the crisis, which had erupted after four top Supreme Court judges came out openly against allocation of cases by Chief Justice of India Dipak Misra, has been resolved internally and the “story is over now”.

BCI Chairman Manan Kumar Mishra, who led a seven-member delegation and held hectic parleys with 15 judges including the CJI yesterday, said the controversial issues flagged by the four revolting judges were “internal issues of the family” which have been resolved internally.

“Kahani khatam ho gaya (the story is over now)”, he said even as he cautioned political parties and their leaders not to take undue mileage from the January 12 press conference by the four judges to raise problems, including the assigning of cases, saying the matter should not be politicised.

“We met around 15 judges yesterday and all of them said that BCI has done a very good job and this mediation was required. They have now resolved the issue.

“BCI has been successful in its effort. No outside interference was required in the matter and even we will not impose any condition on them and they themselves would solve their differences over a cup of tea,” he told reporters here.

At a press conference on January 12, the four judges — Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph — had flagged some issues, including assigning of cases in the apex court and judicial appointments, and said there were certain problems afflicting the country’s highest court.

“Everything will be sorted out and they have resolved whatever issues are there. We are expecting that everything will be settled and they will evolve an in-house mechanism,” Mishra.

He also referred to Attorney General’s K K Venugopal’s statement in which he is reported to have said that the issue has been resolved.

“They have resolved the issue and you can see that the courts are functioning smoothly and they are discharging their duties. There is nothing left”, Mishra said.

Responding to a question whether an investigation should be ordered on allegations of the senior most judges, Mishra said the Bar body was not concerned with this and there is no question of any probe.

He also said the death of special CBI judge B H Loya, who was trying the Sohrabudin Sheikh fake encounter case, should not be raked up as his family members have made their stand clear and want no more harassment.

“There is no question of any probe (into points raised by four judges in the presser). If somebody tries to bring Justice Loya’s issue then you can see their family members have already said there is no need for any investigation and they were being unnecessary harassed.

“We are only concerned with smooth functioning of this institution. We have no right to say and decide whether there should be a Code of Conduct,” he said.

On the issue of bringing more clarity in the functioning of the top court, the BCI Chairman said the system was working properly and “there was transparency”.

“They have evolved a formula and while rejecting a name for elevation they are assigning the reason and it is there on the Supreme Court website. What more transparency do you want,” he said.

He said all the four top judges have resolved the differences and were attending the court today.

To a question whether any action should be taken against them for criticising the Chief Justice of India, he said there is no need of any action and they “are all honest and men of integrity.”

Yesterday, Chief Justice of India Dipak Misra had met a seven-member delegation of the BCI and Supreme Court Bar Association President Vikas Singh and assured them that the crisis would be sorted out soon and congeniality would prevail.

Source : PTI

CJI refuses to be part of panel to select NJAC members : SC

dattuIn a new twist, Chief Justice of India H L Dattu has refused to participate in a three-member panel for selecting two eminent persons in the six-member National Judicial Appointments Commission (NJAC) on whose validity a constitution bench began hearings today.

The five-judge constitution bench, headed by Justice J S Khehar, which is hearing the issue of constitutional validity of the new law on appointment of judges to higher judiciary, was told by Attorney General Mukul Rohatgi that Dattu has written to Prime Minister Narendra Modi that he would not participate in the meeting of the panel till the matter is decided by the apex court.

The three-member panel comprises Chief Justice of India, Prime Minister and the Leader of Opposition, who are authorised to select and appoint two eminent persons in the six-member NJAC for appointment of judges to higher judiciary.

When it was brought to the notice of the bench, also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel, it heard the views of various senior advocates on how to proceed with the matter taking into account that in the immediate future there would be the eventuality of appointment of existing additional judges of the high courts whose tenures are coming to an end.After taking note of their views, the judges retired to their chambers and assembled after 15 minutes.

Justice Khehar said that the bench has decided to continue with the hearing on the merits of the case and if needed it will pass an interim order.

“A consensus has emerged that we will continue with the merits of the case and when it is necessary we will pass an interim order,” the bench said.

The AG submitted that it is mandatory for the CJI to be the part of the panel in selection and appointment of eminent persons in the six-member commission.He said a direction should be passed for the CJI to participate in the meeting.

However, his view was not shared by senior advocate Fali S Nariman, who is appearing for Supreme Court Advocates on Record Association (SCAORA), said that if the CJI is not participating, the bench can direct others to meet and participate.

The apex court also sought the view of senior advocate Ram Jethmalani, who said, that the bench has to see if prima facie, a case for staying the operation of NJAC Act is made out or not.
However, senior advocate Harish Salve, appearing for Haryana government and supporting the new law, submitted that the bench can continue with the hearing as the question of additional judges of high courts will arise only on May 20 and in the meantime if the hearing goes on the judges will get the grasp of what is going to be the prima facie view.
Salve further said that the bench has to, on one hand, consider the sensitivity of the head of the judicial family that is the CJI, and the will of the Parliament which led to the constitution of the NJAC, on the other.
He also said let the matter be heard for seven-eight days and then a view can be taken on the entire issue.
“Today we are at the very initial stage,” Salve said, adding that staying the amendment at this stage will not be the right thing to do.
On April 23, the apex court had said that NJAC will only deal with appointment of existing additional judges of High Courts, whose tenures are ending during pendency of the controversy, after it was assured by the AG that commission will not appoint judges to the higher judiciary and will move the court in such an eventuality.
Earlier, the bench had asked Rohatgi to take instruction from competent authority about the additional judges in high courts whose tenure is coming to an end in the immediate future when the matter will be pending before the court.
The AG had said that barring four-five cases, all recommendations of erstwhile collegium have been accepted.
On the issue of re-appointment or extension of additional HC judges, Rohatgi had said that tenures of two or three judges of Assam High Court, seven to eight in the Bombay High Court are ending in June and hence, the issue be “kept open” till May 11 as the NJAC is likely to be constituted by May 4.
The process to appoint two eminent persons in the six- member NJAC “will commence shortly” and the panel is “likely to commence working on May 4”, he had said.
The bench had said that the NJAC Act has to implemented as it has neither been stayed nor set aside.
Rohatgi had refuted the submission of Nariman that two eminent citizens, who would become part of the NJAC, will be embarrassed if the Act is set aside and said that they would be knowing that a litigation is pending.

Justice Khehar to head the Constitution bench

Justice J S KheharSetting at rest issues, the Supreme Court on Wednesday cleared the decks for commencing the hearing on the validity of the new law on appointment of judges with a Constitution Bench rejecting demands for recusal of judges.

“Justice J S Khehar will not recuse himself from hearing,” Justice J Chelameswar said on behalf of the five-judge bench which overruled the objection on Justice Khehar heading the bench. Justice Chelameswar said the reasons for the non-recusal of Justice Khehar will be delivered later.

The bench, also comprising Justices Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel, besides Justices Khehar and Chelameswar, said it will commence the hearing on April 27 to examine the validity of the new law–National Judicial Appointments Commission Act–which has been notified. It replaces the two-decade-old collegium system of appointment of judges to the higher judiciary. The court issued notices to the Centre, all state governments and union territories asking them to be ready with the matter which “purely involves the questions of law”.

The bench also asked Attorney General Mukul Rohatgi to take instruction from competent authority about the judges, particularly about additional judges in high courts whose tenure is coming to an end in the immediate future when the matter will be pending before the court. It said it will hear the matter tomorrow and after knowing the stand of the Centre. It will pass an interim order as this is a matter of concern and their fate cannot be kept in limbo.

Justice Khehar made it clear that the bench headed by him would like to complete the hearing and dispose of the matter in a particular time frame. 14 working days, starting from Monday onwards, would be sufficient to conclude the arguments and if required a day or two will be used during the summer vacation, he said.

A consensus was evolved that the petition filed by the Supreme Court Advocates on Record Association (SCAORA), in which senior advocate Fali S Nariman is appearing, will be the lead case among the batch of petitions challenging the validity of Constitution (99th amendment) Act 2014 and the NJAC Act, 2014, which pushes out the two-decade old collegium system of appointment of judges by the judges.

 

Crucial hearing on NJAC by constitution bench of SC

njacTwo days after the government notified the controversial NJAC law to remove the collegium system of appointment of judges, a Constitution Bench of the Supreme Court will commence hearing from tomorrow to examine the validity of new measure and is likely to consider passing an interim order to staying the operation of the Act.

A three-judge bench of the apex court on April 7 had referred to a five-judge Constitution Bench, a batch of petitions challenging the validity of National Judicial Appointments Commission (NJAC) Act to replace the two-decade- old collegium system of appointing judges to higher judiciary.

The court had refused to stay the implementation of law with the observation that all the issues arising out of the petitions would be decided by the Constitution Bench.

Two days thereafter, the Chief Justice of India H L Dattu Constituted the Constitution Bench comprising Justices A R Dave, J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel to hear the matter.

Justices Joseph and Goel are the two new judges in the bench while the other three had heard the matter before thinking it fit that the issues in the pleas required to be adjudicated by a larger bench.

However on April 13, the government notified the National Judicial Appointments Commission (NJAC) Act along with a Constitutional Amendment Act (99th Amendment Act) to give constitutional status to the new body to appoint judges.

NJAC was signed into an Act by President Pranab Mukherjee on December 31, 2014.

Under the collegium system which came into existence in 1993 after a Supreme Court judgement, five top judges of the apex court recommend transfer and elevation of judges to Supreme Court and 24 High Courts.

According to the new Article 124(A) inserted in the Constitution, two eminent persons will be nominated to the Commission as members by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in Lok Sabha or where there is no such LoP, then the leader of single largest Opposition party.

One of the eminent persons will be nominated from among the persons belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities or women.

SC sets free two Italians guilty of friend’s murder

The Supreme Court has set free two Italians, undergoing life imprisonment for murder of their friend in 2010, saying the evidence submitted by the prosecution to suggest motive does not inspire confidence.

A bench of justices A R Dave, Kurian Joseph and R Banumathi set aside the Allahabad High Court order which had confirmed the life imprisonment to Italian nationals Tomaso Bruno and Elisa Betta Bon Compagni

“In the case at hand, evidence adduced by the prosecution suggesting motive is only by way of improvement at the stage of trial which, in our view, does not inspire confidence of the court…In the present case, the courts have not properly appreciated the evidence and gap in the chain of circumstances sought to be established by the prosecution.

“Upon consideration of the facts and circumstances of the case, we are of the view that the circumstances and the evidence adduced by the prosecution do not form a complete chain pointing to the guilt of the accused and the benefit of doubt is to be given to the accused and the conviction of the appellants is liable to be set aside,” the bench said.

It also said that the courts have ignored the importance of “best evidence” i.E CCTV camera in the case at hand and also have not noticed the absence of symptoms of strangulation in the medical reports.

According to the prosecution, Tomaso and Victa along with their friend Francesco Montis had arrived in Varanasi from London on January 31, 2010 and checked in at a hotel in the city.

On February 4, 2010, Victa informed the manager of the hotel that Francesco’s condition was not fine after which they took him to a hospital, where the doctors declared the tourist as “brought dead”.

Later, on the basis of the postmortem report and other materials, an FIR against Tomaso and Victa was lodged.

In July 2011, the lower court had awarded life imprisonment to them besides a fine of Rs 25,000.

The High Court upheld the verdict

SC to pronounce verdict on Coal block allocation on Monday

Coal block allocation

The Supreme Court is likely to pronounce on Monday its judgement on a batch of petitions seeking quashing of coal blocks allocation during the previous UPA regime.

A bench headed by Chief Justice R M Lodha has examined the allegations about alleged irregularities in the allocation of around 194 coal blocks without following proper guidelines.

The coal blocks were alloted in Jharkhand, Chattisgarh, Maharashtra, West Bengal, Odisha and Madhya Pradesh to private companies and parties bewteen 2004 to March 2011.

The bench, also comprising justices M B Lokur and Kurian Joseph has been monitoring the CBI probe into the scam and special court has been set up to exclusively deal with the prosecution of cases arising out of it in which politicians and businessmen have been named as accused.

The apex court on September 14, 2012 had for the first time issued notice on the PIL filed by advocate M L Sharma and later an NGO, Common Cause and other public spirited persons joined him in the matter which saw CBI facing tough time and government getting pulled up for alleged interference in the probe.

During the hearing, the apex court sought the details of guidelines framed by the Central Government for allocation of coal blocks and examined the process adopted for it.

The top court will also deliver its findings whether the guidelines contain inbuilt mechanism to ensure that allocation “does not lead to distribution of largesse unfairly in the hands of few private companies” and those were strictly followed and whether by allocation of coal blocks, the objectives of the policy have been realised.

Lengthy arguments were also advanced as to what were the reasons for “not following the policy of competitive bidding” adopted by the Centre way back in 2004 for allocation of coal blocks.

Further, the apex court would give its findings about the steps taken or are proposed to be taken against the allottees who have not adhered to the terms of allotment or breached the terms thereof.

It had rejected the contention that the petition based on the CAG report was “premature” as the Public Accounts Committee (PAC) was then slated to examine about the correctness of allocation.

When the petition was filed in 2012, it was alleged that that the CAG has estimated a huge loss of about Rs 1.64 lakhs crores to the country in the allocation of coal blocks.

No need of government sanction to probe public servants: SC

supreme courtThe Supreme Court on Tuesday held that the approval of the Central Government was not necessary under Section 6A of the Delhi Special Police Establishment Act (which governs the Central Bureau of Information) for investigation and prosecution of senior officials where inquiry/investigation into the crime under the Prevention of Corruption Act was being monitored by the Court.

Giving this ruling, a three-Judge bench of Justices R.M. Lodha, Madan B. Lokur and Kurian Joseph said, “This position holds good in cases which are directed by the Court to be registered and the inquiry/investigation thereon is actually being monitored by this Court.” Justice Lokur gave concurrent but different reasons.

Passing orders in the petitions filed by advocate Manohar Lal Sharma and others in the coal block allocation scam case, the Bench said, “The fact that the investigation is monitored by the Constitutional court is itself an assurance that investigation/inquiry by the CBI is not actuated with ulterior motive to harass any public servant and the investigating agency performs its duties and discharges its responsibility of fair and impartial investigation uninfluenced by extraneous considerations.”

Writing the judgment, Justice Lodha said, “A proper investigation into crime is one of the essentials of the criminal justice system and an integral facet of rule of law. The investigation by the police under the Cr.P.C. has to be fair, impartial and uninfluenced by external influences. Where investigation into crime is handled by the CBI under the DSPE Act, the same principles apply and CBI as an investigating agency is supposed to discharge its responsibility with competence, promptness, fairness and uninfluenced and unhindered by external influences.

“The abuse of public office for private gain has grown in scope and scale and hit the nation badly. Corruption reduces revenue; it slows down economic activity and holds back economic growth. The biggest loss that may occur to the nation due to corruption is loss of confidence in the democracy and weakening of rule of law. In recent times, there has been concern over the need to ensure that the corridors of power remain untainted by corruption or nepotism and that there is optimum utilization of resources and funds for their intended purposes.

“It is alleged that coal blocks for the subject period have been allocated for extraneous considerations by unknown public servants in connivance with businessmen, industrialists and middlemen. The allocation of coal blocks is alleged to suffer from favouritism, nepotism and pick and choose.

The Comptroller and Auditor General [CAG] in its Performance Audit on allocation of coal blocks and augmentation of coal production has estimated loss to the public exchequer to the tune of about Rs.1.86 lakh crore as on 31.03.2011 for Open-cast mines/Open-cast reserves of Mixed mines while pointing out inadequacies and shortcoming in the allocation.

Our reference to the CAG report, we clarify, does not mean that we have expressed any opinion about its correctness or otherwise. The Court is of the view that a fair, proper and full investigation by the CBI into every accusation by the CBI in respect of allocation of coal blocks shall help in retaining public confidence in the conduct of inquiry/investigation.

Moreover, the Court-monitoring in a matter of huge magnitude such as this shall help in moving the machinery of inquiry/investigation at appropriate pace and its conclusion with utmost expedition without fear or favour.”

(Source: IANS)