Supreme Court 2019 : Events & Controversies

Manu Sebastian

31 Dec 2019 2:53 AM GMT

  • Supreme Court 2019 : Events & Controversies

    A Chief Justice of India facing sexual harassment allegations for the first time ever in history, leading to a murky enquiry process set in by the Supreme Court, which ultimately absolved him!Serious questions about the independence of judiciary being raised in the wake of apex court's indifference and inaction on the contentious Kashmir lockdown!.Deep fault lines exposed within...

    A Chief Justice of India facing sexual harassment allegations for the first time ever in history, leading to a murky enquiry process set in by the Supreme Court, which ultimately absolved him!

    Serious questions about the independence of judiciary being raised in the wake of apex court's indifference and inaction on the contentious Kashmir lockdown!.

    Deep fault lines exposed within judiciary, particularly in the matter relating to appointments and transfers of judges!

    With all these, there were complaints that the Supreme Court did not rise up to its role as a protector of Constitution, when its interventions were most needed. So much so that there were comparisons drawn with the ignominy of the emergency-era Supreme Court. 2019 may not be get counted as a glorious year in the history of judiciary.

    Here is a year-end recap of the major controversies and events (in the order of chronology).

    Collegium U-turn : Elevation of Justices Dinesh Maheswari and Sanjiv Khanna

    The Collegium decision of January 10 drew a lot of surprises, with proposals to elevate Justice Dinesh Maheswari and Sanjiv Khanna. This was controversial because earlier the Collegium had resolved on December 12, 2018 to elevate Justices Rajendra Menon and Pradeep Nandrajog to SC. The reasons for dropping this proposal to recommend the names of two relatively junior judges were not mentioned in the January 10 resolution. It merely mentioned that the Collegium had decided to take a "fresh look" at the December 12 decision after the winter break.

    This decision caused consternation even within the SC. Justice S K Kaul, a sitting SC judge, wrote to CJI questioning the decision to elevate Justice Khanna ignoring seniority.

    Justice Madan B Lokur, who was part of the December 12, 2018 Collegium decision, expressed surprise at the subsequent change, which was made after his retirement on December 30.

    Justice Sikri's withdrawal from appointment to CSAT

    The nomination of Justice A K Sikri by the Central Government for appointment as member in the London-based Commonwealth Secretariat Arbitral Tribunal became controversial, as it closely followed his participation in the Selection Committee meeting which recommended the removal of Alok Verma as CBI Director. Justice Sikri had taken part in the meeting as a nominee of the CJI.

    Following the controversy, Justice Sikri withdrew his consent.

    Tampering of order directing personal appearance of Anil Ambani

    The order issued by Court on January 7 requiring personal presence of Reliance Chairman Anil Ambani and other officers was found to be tampered with.

    Though the bench had specifically made it clear that personal appearance is not dispensed with, the copy of the order uploaded in the official website of the top court stated that personal appearance was dispensed with.

    This led to an internal enquiry, resulting in the summary dismissal of two court masters, Manav Sharma and Tapan Kumar Chakraborty.

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    Forest Rights Act : Eviction of over 1 million forest dwellers ordered; later stayed

    A bench of Justices Arun Mishra, Navin Sinha and Indira Banerjee directed state governments to ensure the eviction of all those persons from forestland whose claims under the Forest Rights Act have been rejected. The order would have impacted over 1 million forest dwelling tribals.

    The order led to a lot of controversy and confusion, as most states were yet to streamline the claims and appeals processes under the Forest Rights Act. Later, on an application by the Central Government, the same bench stayed the eviction order. The matter is at present pending, and the Court has sought for data from states regarding claims under FRA.

    AG's submission on Rafale documents were stolen from Ministry

    The Attorney General K K Venugopal's submission in the Rafale review case that the documents relied on by the petitioners were 'stolen' from the Ministry of Defence created a stir. Opposition leaders latched on AG's statement to attack the Government.

    Later, the AG swung to damage control mode by clarifying that he meant that the petitioners had used unauthorized photocopies of documents.

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     CJI Sexual harassment conspiracy 

    In an unusual suo moto proceeding, the SC convened an urgent sitting on a Saturday (April 20) in the wake of sexual harassment allegations surfacing against the then CJI Ranjan Gogoi.

    The former CJI, while sharing bench with Justices Arun Mishra and Sanjiv Khanna, denied the allegations and questioned the motives of the complainant, a former staff of SC.  CJI Gogoi alleged that it was a conspiracy by fixers to "deactivate the judiciary".

    After the session, the Court passed an order (signed only by Justices Mishra and Khanna, with conspicuous omission of CJI Gogoi), advising media to exercise "restraint".

    Lawyers bodies Supreme Court Advocates on Record Association, Supreme Court Bar Association passed resolutions condemning the process adopted by the SC to deal with the matter. They demand a probe following procedure established by law.

    On the evening of April 20, Utsav Singh Bains, a Delhi-based lawyer, posted in Facebook that the allegations against CJI were part of a conspiracy. He said that he will file an affidavit in SC with evidence of "conspiracy against the CJI by a lobby of disgruntled judges, SC fixers, corporate scamsters and a few corrupt Politicians"

    A special bench of Justices Arun Mishra, Nariman and Deepak Gupta took note of the allegations raised by Bains.

    Bains handed over certain materials to Court in a "sealed cover". The Court summoned the chiefs of CBI, Delhi Police and Intelligence Bureau to chambers for discussion. Sharp exchanges occurred between Bains, the AG and the bench during the hearing, where Justice Nariman chastised Bains for using intemperate language at AG

    Later, the bench held that former SC judge Justice A K Patnaik will hold enquiry regarding alleged conspiracy against CJI Ranjan Gogoi. 

    A panel comprising three SC judges - Justices S A Bobde, N V Ramana and Indira Banerjee - constituted by the top court to probe the sexual harassment allegations later gave a clean chit to the CJI. The complainant had stayed away from the probe citing likelihood of bias. In a press release, she said that she felt "intimidated and nervous in the presence of three Hon'ble Judges of the Supreme Court and without having a lawyer or support person". 

    "I felt I was not likely to get justice from this committee and so I am no longer participating in the 3 Judge Committee proceedings", the complainant said.

    The report of the panel which gave CJI Gogoi clean chit  was not made public. Justice Chandrachud and Attorney General K K Venugopal had demanded an impartial enquiry into the sexual harassment allegations by including external members such as former judges. But these suggestions were ignored. The enquiry proceedings were widely criticized by several lawyer bodies as opaque and unfair.

    Though there are reports that Justice (Retd.) Patnaik has submitted the enquiry report, its details are not made public.

    SC's handling of Kashmir petitions

    The Supreme Court's handling of the petitions challenging detentions of Kashmir leader and the lockdown of the state attracted a lot of criticism. Instead of questioning the government about the grounds of detention of persons, Court passed unusual orders 'allowing' the petitioners to travel to Kashmir to meet the detenus. 

    The Court showed no sense of urgency in dealing with the petitions challenging the lockdown of J&K imposed in the form of mobile network shutdown, media curbs and other curfew measures. This attracted criticism from the United Nations as well, which remarked that the SC was 'slow' in dealing with Kashmir petitions.

    Likening the situation to the emergency-era Court, Senior Advocate Dushyant Dave wrote :

    "The court's handling of these cases is a harsh reminder of the ADM Jabalpur case. More than a million people have been locked down in one of the biggest clampdowns by the Indian armed forces; and all under the cover of Section 144 of Cr.P.C. 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"

    Senior Advocates Raju Ramachandran and C U Singh expressed similar views, wondering whether the judiciary is sufficiently alert about rights violations, or was in the danger of losing the plot.

    The evasive approach of the Supreme Court even got international attention.

    "The Supreme Court of India has been slow to deal with petitions concerning habeas corpus, freedom of movement and media restrictions.", commented the UN High Commissioner for Human Rights.

    A three judges bench comprising Justices N V Ramana, Subhash Reddy and B R Gavai reserved judgment in the case challenging Kashmir lockdown on November 27. While the judgment is awaited, the internet shutdown in Kashmir has crossed 150 days, which is reportedly the longest period of internet shutdown in a democracy.

    Delay in hearing case on Electoral Bonds

    The Court's lack of interest in hearing the case against Electoral Bonds also come under severe criticism.

    The Election Commission of India itself has come on record saying that the scheme has dangerous impact on transparency in political funding. By the time the Justice Gogoi-led bench started hearing of the case last March, most bonds had been purchased for the Lok Sabha polls. On April 12, after several sessions of hearing held during the run up to the 2019 Lok Sabha polls, the three judges bench of the SC comprising CJI Ranjan Gogoi, Justice Deepak Gupta and Sanjiv Khanna directed the political parties to submit the details of donations received to the ECI in sealed cover by May 30. Despite observing that the case has "weighty issues" having "tremendous bearing on the sanctity of electoral process in the country", the matter has not witnessed any further action after April 12. The bonds were used in the subsequently held elections in Maharastra and Haryana,  even as the Court continued to sit over the matter.

    During last week of November, a series of investigative reports were published, which indicated that the Central Government had ignored serious concerns raised by Reserve Bank of India and Election Commission of India against anonymous electoral bonds. Based on these reports, ADR moved an application for stay of Electoral Bonds scheme. The Court has now agreed to consider the matter in January.

    Justice Akil Kureshi controversy

    The Collegium modified the proposal to elevate Justice Akil Kureshi as Chief Justice of Madhya Pradesh High Court and proposed him as the CJ of Tripura HC CJ. This was apparently following the objections from the Central Government.

     That Justice Kureshi had passed judicial orders as a judge of Gujarat HC against the establishment gave rise of speculations that the modification was caused by political pressure.

    The Centre had sat over the original proposal to elevate Justice Kureshi as MP HC Chief Justice for nearly nine months. Meanwhile the Gujarat High Court Advocates Association had moved the SC seeking action on the collegium resolution.

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    Justice Tahilramani's resignation

    The Collegium decision to transfer former Madras HC CJ Justice V K Tahilramani to Meghalaya HC - for reasons undisclosed - caused embarrassment to it after she resigned in apparent protest over the decision. The situation forced the Collegium to issue a press release stating that the decision was based on cogent reasons, which again were not disclosed.

    Ayodhya Verdict

    In an unanimous verdict, the Supreme Court held that the entire disputed land of 2.77 acres in Ayodhya must be handed over for the construction of Ram Mandir. At the same time, the Court held that an alternate plot of 5 acres must be allotted to the Sunni Waqf Board for construction of mosque. This direction was passed invoking powers under Article 142 of the Constitution. The Court observed that the destruction of Babri mosque in 1992 was a violation of law. The act of placing idols beneath the central dome of the mosque in 1949 was an act of "desecration", observed the Court. Even while acknowledging the illegalities committed against the mosque, the Court handed over the property to the Hindu parties in the case, on the finding that they proved a better claim of possessory title. There was criticism that Court's verdict amounted to rewarding acts of aggression by a party to a litigation.

    Later, the SC dismissed a string of review petitions filed against the verdict.

    Sabarimala review

    The Supreme Court by 3 :2 majority, decided to keep the review petitions in Sabarimala matter pending until a larger bench determines questions related to essential religious practices. The majority of CJI Ranjan Gogoi, Justice Khanwilkar and Indu Malhotra expressed that the issue whether Court can interfere in essential practises of religion needed examination by larger bench. 

    Justices RF Nariman and DY Chandrachud dissented. 

    Criticizing the order, Senior Advocate Rakesh Dwivedi commented that it was is beyond the scope of Article 137 of the Constitution which confers power of review on the Supreme Court.

    Justice Arun Mishra controversies

    Justice Arun Mishra became the centre of controversies on several occasions.

    In a controversial order, Justice Arun Mishra stated that he will not recuse from heading the Constitution Bench which was formed to decide the correctness of the interpretation give to Section 24(2) of the new Land Acquisition Act by the 2018 Indore Development Authority case. The petitioners in the case sought his recusal contending that there was apprehension of bias as Justice Mishra had authored the 2018 judgment, which was under reference.

    Justice Mishra said that it was for the judge to decide whether to recuse or not and that it will not be in the interests of justice to recuse.

    During a subsequent hearing of the case, Justice Arun Mishra and Senior Advocate Gopal Sankaranarayanan had a verbal altercation, and the judge threatened the lawyer with contempt action.

    This incident snowballed into a major controversy with the Executive Committee of Supreme Court Advocates on Record Association (SCAORA) passing a resolution condemning Justice Mishra's action and urging him to be "little more patient in dealing with lawyers".

    Later, Justice Mishra expressed apology for his remarks but added that lawyers should also stay within their bounds showing respect to the bench.

    In August, Senior Advocate Dushyant Dave had written a letter to the CJI alleging impropriety in the listing of cases of Adani groups before benches headed by Justice Arun Mishra.  Dave, who was recently elected the SCBA President, alleged that the many cases got out of turn listing, and that they were listed violating the SC roster.

    SC order demolition of Guru Ravidas temple; later allows reconstruction at same site.

    The temple of Guru Ravidas, a revered saint among Dalits, was demolished by the Delhi Development Authority following orders of the Supreme Court. 

    The demolition led to massive protests by Dalit groups in various parts of the country. On August 14, the SC observed that the demolition should not be politicized.

    "Don't think we are powerless. We know the seriousness of the issue," the bench headed by Justice Arun Mishra said when the counsel appearing for the Guru Ravidas Jainti Samaroh Samiti, referred to the agitation on the issue in Punjab.

    "Don't speak a word and don't aggravate the issue. You are in for contempt. We will haul up your entire management. We will see what has to be done," the bench also comprising Justices M R Shah and Ajay Rastogi said while requesting Attorney General K K Venugopal to assist in the matter.

    After the razing down of the temple, a PIL was filed in the Supreme Court seeking re-construction of the temple.

    Later, the Supreme Court allowed the re-construction of the temple at 400 square meters of plot at the same site, "honoring the belief and the faith of the worshippers"

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