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. Supreme Court is even called as 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.

Justice B.H. Loya Death

The Court in Tehseen Poonawalla v. Union of India and Others[1] 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 (https://main.sci.gov.in/supremecourt/2017/40744/40744_2017_Judgement_19-Apr-2018.pdf). 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[2]. 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. However, in the present case, the statement of the Judges was not subject to oath or cross-examination (https://www.thehindu.com/news/national/judge-loya-death-no-foul-play-says-supreme-court/article23599867.ece). As the Supreme Court has earlier observed even procedural inequities amount to arbitrariness[3].  How can anybody 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 the hearing. These facts were not contemplated by the Court (https://www.barandbench.com/columns/judge-loya-death-dushyant-dave ).

The Supreme Court in Central Bureau of Investigation v. Amitbhai Anil Chandra Shah[4] 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 willful non-compliance of court’s order amounts of contempt of court[5]. 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!

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 (https://www.thehindu.com/news/national/sexual-harassment-allegations-cji-violated-procedure-by-hearing-own-case-say-supreme-court-lawyers/article26910964.ece). It was reiterated by the Supreme Court in many cases that “No one can be a judge in his own case”[6].  All citizens in India are bound by the Rule of Law. Does the CJI have the power to override the Principal of Natural Justice in his discretion?

Thirdly, an In-House Enquiry Committee was established with three Judges as its members who were junior to the accused CJI (https://www.thehindu.com/news/national/panel-of-judges-led-by-justice-sa-bobde-to-hear-sexual-harassment-allegations-against-cji-ranjan-gogoi/article26924819.ece). 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 (http://www.thehindubusinessline.com/news/chief-justice-gets-clean-chit-as-in-house-panel-finds-no-substance-in-sexual-harassment-allegations/article27049932.ece). It was held in Indira Jaisingh v. Supreme Court of India and Another[7] 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 (https://www.thehindu.com/opinion/lead/in-upper-house-nomination-a-fall-for-aloofness/article31101941.ece).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?

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 (https://thewire.in/law/ranjan-gogoi-rajya-sabha-anjana-prakash-interview). There are two commonalities that exist between all three Judges. First and foremost, those who have special knowledge or practical experience of matters such as literature, science, art and social services should be nominated to Rajya Sabha[8]. All 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. But the judicial independence gets eroded by the practice of employing retired Supreme Court Judges in various Government capacities. The Law Commission criticized the practice stating that it is undesirable for the retired Supreme Court Judges to look forward to such employments as it interferes with the Independence of Judiciary and it shouldn’t be continued (https://www.scribd.com/doc/314616550/Law-Commission-Report-No-14-Reforms-of-the-Judicial-Administration-Vol-1). Dr.B.R.Ambedhkar 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 the citizen and Government (http://www.nja.nic.in/P-950_Reading_Material_5-NOV-15/4.%20Khagesh%20Gautam.pdf). But today a large chunk of Supreme Court cases are between the citizen and Government.

Law should be progressive according to the changes in society[9]. India is a country with both “Constitution” and “Constitutionalism”. At present, there is a dire need to enact new laws and devise new mechanisms to look into all these loopholes in Judiciary. Justice done to some and not to others doesn’t amount to Justice!

[1] Tehseen Poonawalla v. Union of India and Others, (2018) 9 S.C.C 501

[2] Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, 2019 S.C.C OnLine S.C 1459.

[3] Charan Lal Sahu v. Union of India, A.I.R. 1990 SC 1480.

[4] Central Bureau of Investigation v. Amitbhai Anil Chandra Shah, Writ Petition (Criminal) No. 149 of 2012.

[5] Rajiv Choudhary V. Jagdish Narain Khanna, 1996 1 SCC 508.

[6] Ramanand Prasad Singh v. Union of India, 1996 S.C.C (4) 64,

[7] Indira Jaisingh v. Supreme Court of India and Another, (2003) 5 S.C.C 457.

[8] Article 80(3), Constitution of India, 1950.

[9] Ashok Kumar Gupta and another v. State of U.P, (1997) 5 S.C.C 201.

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ABOUT THE AUTHOR

Sara Suresh

Sara Suresh is a student of Symbiosis Law School, Pune pursuing B.A., LL.B(Hons). She has participated in various moots and has written many research papers. To be a lawyer is her passion and she sternly believes in the idea of success as learning and practising every day. You can reach her at 17010125034@symlaw.ac.in.