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Mainstream, VOL LVI No 20 New Delhi May 5, 2018

Two Recent Supreme/High Court Verdicts

Saturday 5 May 2018, by Arup Kumar Sen


Some recent developments in the domain of the Indian judiciary give alarming signals. In January 2018, four senior judges of the Supreme Court alleged: There have been instances where case having far-reaching consequences for the nation and the institution had been assigned by the Chief Justice of this Court selectively to the benches “of their preference” without any rational basis for such assignment.

The situation has become more complicated after the above allegation was carried in the media. On April 19, 2018, a three-judge Bench of the Supreme Court headed by the Chief Justice of India, Dipak Misra dismissed petitions seeking a probe into the circumstances of the death of the CBI Special Judge B.H. Loya. Justice Loya was presiding over the Sohrabuddin Sheikh ‘encounter’ case when he died. The present BJP President, Amit Shah, was one of the accused in the case. In its judgment, the Supreme Court Bench concluded that Justice Loya died of “natural causes”, and criticised the petitioners harshly: “The conduct of the petitioners and the intervenors scandalises the process of the court.” The Bench reportedly observed: “...the petition is a veiled attempt to launch a frontal attack on the independence of the judiciary and to dilute the credibility of judicial institutions.”

The eminent Supreme Court advocate, Prashant Bhushan, reacted sharply in the wake of the Supreme Court verdict on the Loya case. To put it in his own words: “Public questions about the death of judge Loya will certainly not subside just because of this judgment... I have received hundreds of calls. People are calling this a murder of the rule of law, and a murder of democracy...This will certainly be another blow to the credibility of the Supreme Court and the Chief Justice.”

It should be noted in this connection that on April 20 the Congress, supported by six other Opposition parties, took the unprecedented step of moving an impeachment motion against Chief Justice of India on grounds of “misbehaviour”, and levelled five charges against him. The Rajya Sabha Chairman, M Venkaiah Naidu, rejected the unprecedented notice submitted by seven Opposition parties on a motion for impeachment of Chief Justice of India, citing “absence of credible and verifiable information” which gives an indication of “misbehaviour” or “incapacity”.

What is remarkable is that the day on which the Opposition parties launched the unprece-dented move to impeach the Chief Justice of India, a two-judge Division Bench of the Gujarat High Court acquitted former BJP Minister, the doctor-turned-politician Maya Kodnani, and 17 others in the Naroda Patiya massacre case, in which 97 Muslims were reportedly killed in 2002. In 2012, a trial court held Kodnani as one of the “principal conspirators” in the case, and she was sentenced to 28 years in jail. In fact, the trial court reportedly termed Dr. Kodnani as “a kingpin” of the Naroda Patiya riots. But, the Division Bench of the Gujarat High Court observed that the testimonies of the witnesses against her were unreliable, and gave Kodnani “benefit of doubt”.

We have no locus standi to comment on the sanctity of the aforesaid verdicts of the Supreme Court/High Court. But, we should keep in mind the warning given by a scholar of jurisprudence, Alok Prasanna Kumar, in a different context: “...a judiciary and executive on the same page is disastrous for constitutional government and human rights.”

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