DALIT ONLINE – e News Weekly

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Editor: Nagaraja.M.R.. Vol.15..Issue.25......23 / 06 / 2019
PIL - Godhra Carnage & Cover ups

IN THE SUPREME COURT OF INDIA ORIGINAL

JURISDICTION

CRIMINAL WRIT PETITION NO. OF 2019

IN THE MATTER OF

NAGARAJA . M.R
editor DALIT ONLINE ,
# LIG 2 , No 761 ,, HUDCO First Stage , Laxmikantanagar ,
Hebbal , Mysore – 570017 , Karnataka State
.
....Petitioner

Versus
Cabinet Secretary GOI
Cabinet Secretary Government of Gujarat

& Others

....Respondents

PETITION UNDER ARTICLE 12 to ARTICLE 35 & ARTICLE 51A OF THE CONSTITUTION OF

INDIA FOR ISSUANCE OF A WRIT IN THE NATURE OF MANDAMUS UNDER ARTICLE 32 &
ARTICLE 226 OF THE CONSTITUTION OF INDIA.

To ,
All Honourable Judges ,
Supreme Court of India ,
New Delhi.
The Humble petition of the Petitioner above named.

MOST RESPECTFULLY SHOWETH :

1. Facts of the case:
"Power will go to the hands of rascals, , rogues and freebooters. All Indian leaders will be of low
calibre and men of straw. They will have sweet tongues and silly hearts. They will fight among
themselves for power and will be lost in political squabbles . A day would come when even air &
water will be taxed." Sir Winston made this statement in the House of Commons just before the
independence of India & Pakistan. Sadly , the forewarning of Late Winston Churchill has been
proved right by some of our criminal , corrupt public servants.
2. Godhra train carnage committed on innocent karsevaks by rowdy muslim elements must be
severely punished.
3. In the same way Gujarath riots committed by rowdy hindu elements must be severely
punished.
4. Persons who openly spoke truth, who professionally investigated the cases , who
professionally judged the cases were silenced by murder or by dismissal, jail sentence.
5. To cover up a crime , series if crimes were committed. Godhra carnage , Gujarath riots ,
Haren pandya murder , fake encounters of tulsiram prajapati , sohrabuddin , his wife , Judge
Loya murder , Police officer Rai's dismissal , Sanjiv Bhatt's dismissal and jail term are all inter
related.
6. Presiding judges of these cases failed to uphold justice out of fear or for favor.

2. Question(s) of Law:

Are criminals behind Godhra carnage and Gujarath riots above law ?

3. Grounds:
Requests for equitable justice , Accountability of judges.

4. Averment:
Before law common man , minister , beggar , judge are all equal and must be treated as equals.
Respect for judiciary has been eroded by improper actions of few unfit judges not
from media or the public. If judges respect law in letter & spirit by their actions then
automatically public will respect judiciary.

Hereby , I do request the honorable supreme court of India to consider this as a PIL for : “writ of
Mandamus” and to issue instructions to the concerned public servants in the following cases to
perform their duties.

PRAYER:
In the above premises, it is prayed that this Hon'ble Court may be pleased:
(i) Hereby , I do request the honorable supreme court of India to consider this as a PIL for : “writ
of Mandamus” and to issue instructions to the concerned public servants in the following cases
to perform their duties.
(ii) to pass such other orders and further orders as may be deemed necessary on the facts and
in the circumstances of the case.
3. To provide protection to families of police officers rai , sanjiv butt and Judge Loya.
4. To institute a transparent impartial investigations into Godhra Carnage , Gujarath riots and
it's cover ups as a whole.
5. To reopen cases filed by police officers Rai , Sanjiv Bhatt.
6. To reopen Judge Loya Murder case.

FOR WHICH ACT OF KINDNESS, THE PETITIONER SHALL BE DUTY BOUND, EVER PRAY.

Dated : 23rd June 2019……………………………………….. FILED BY: NAGARAJA.M.R.

Place : Mysuru , India………………………….. PETITIONER-IN-PERSON

Sanjiv Bhatt Case: In 16 Years, Gujarat Saw 180 Custodial

Deaths – and Zero Convictions
Law enforcement in Gujarat left no stone unturned to ensure Bhatt was
incarcerated. That deviates significantly from the norm.
Police escort former IPS officer Sanjiv Bhatt to Jamnagar Sessions Court, where he was sentenced to life imprisonment, on
June 20. Photo: PTI

The Wire Staff

RIGH TS

21/JUN/2019

New Delhi: While Sanjiv Bhatt’s sentence to life imprisonment in a 1990

custodial death case has raised questions once again on the consequences
of the IPS officer’s claims about Narendra Modi’s role in the 2002 riots,
a Times of India report has shown that Gujarat isn’t in the habit of punishing
other policemen accused of the same crime.

The report highlights, with the help of data accessed from the National
Crime Records Bureau, that as many as 180 custodial deaths took place in
Gujarat between 2001 and 2016 (the last year for which numbers are
available). However, no police personnel have been punished for any of
these deaths in this time.

The countrywide numbers are even worse — only 26 policemen have been
convicted for 1,557 custodial deaths, most from Uttar Pradesh.

Notwithstanding the dire need for accountability in the police force, the
figures draw attention to the context in which Bhatt (along with another
policeman, Pravinsinh Zala) was found guilty in a case that is nearly 30
years old.

Also read: We Must Recognise That Discrimination Plays a Large Role in

Custodial Torture

The 1990 custodial death case

Bhatt’s case dates back to November 1990, when he had detained several
people (the numbers vary between 110 and 150 in different reports) for
rioting in Jamjodhpur town on the day of a Bharat Bandh, called to coincide
with the end of Bharatiya Janata Party veteran L.K. Advani’s rath yatra. The
1988-batch IPS officer, who was then additional superintendent of police of
Jamnagar district, had been send to Jamjodhpur by then superintendent of
police, T.S. Bisht, Indian Express has reported.

Among those detained was one Prabhudas Vaishnani, who was released on
bail after nine days and allegedly died ten days after his release, while
undergoing treatment in a hospital. His brother, Amrutlal, had then filed a
complaint alleging custodial torture against Bhatt and eight other policemen.
To Express, Amrutlal said that Prabhudas was a farmer and not responsible
for rioting at all.

Cognisance of the case had been taken by a magistrate in 1995, but its trial
had been stayed by the Gujarat high court till 2011, when the stay was
vacated.
A week ago, last Wednesday, the Supreme Court had refused to
entertain Bhatt’s plea seeking to examine 11 additional witnesses in the
case. The former policeman had moved the apex court claiming that while
nearly 300 witnesses had been listed by prosecution in the case, only 32
were actually examined. Many crucial witnesses, including three policemen
who were a part of the team which investigated the offence, were left out, he
had claimed.

The Gujarat government had termed Bhatt’s move a “tactic to delay the
trial”.

A report released by Human Rights Watch in 2016 revealed that 591 people had died in
police custody in India between 2010 and 2015 alone, according to official data.
Representational image. Photo: Steven Depolo/Flickr (CC BY 2.0)

Incriminating numbers
In what is no great testament to either the legal system or the concept of
accountability in Indian law enforcement, the narrative surrounding custodial
deaths until now has largely focused on the lack of action taken against
police personnel. A much talked about report released by Human Rights
Watch in 2016 revealed that 591 people had died in police custody in India
between 2010 and 2015 alone, according to official data. Police, the report
revealed, were loath to follow arrest procedures, their impunity bolstered by
a system that allows them to blame such deaths in custody “on suicide,
illness, or natural causes.”

While the NCRB data considered by TOI for their report does not mention
figures relevant to the period during which the custodial death for which
Bhatt has been convicted took place, a 1992 Amnesty
International report on the issue in India quoted 415 custodial deaths in the
country between 1985 and 1991. The report notes that within that period,
only two cases of action having been taken in situations of custodial
violence had come within the purview of the surveyors.

Also Read: Gujarat Police Officer Who Probed Sohrabuddin Shaikh Case
Suspended

The first was for a case of the rape of a tribal women in 1986. A Supreme
Court commission investigating the allegation found sufficient evidence to
conclude that four police officers and two doctors could be charged with
“having hatched the conspiracy for destroying the evidence and thereby
keeping the accused constables from being prosecuted in a court of law”.

“The most recent case known to Amnesty International resulted in a Gujarat

High Court judgment on October 23, 1991; six police officers were
sentenced to six years’ imprisonment for beating Kantuji Mohansinh to
death in 1982 and destroying the evidence of their offence. The same police
officers had previously been acquitted in May 1983 but, in the only such
case known to Amnesty International, the state appealed against that
judgment to the court which set aside the acquittal and convicted the police
officers.”

Indeed, like the Amnesty report suggests, the untold custom is that of the
state government championing the cause of its police in cases of custodial
violence or deaths. Which brings us back to the particular escape from
custom seen in Bhatt’s case.
Why Bhatt?

Gujarat law enforcement’s efforts in stripping Bhatt of his powers, sacking

him, taking him into custody for a 22-year-old drug possessions case and
arguing for his life imprisonment in the custodial death case can be
considered particularly insistent.

His wife Shweta, in an interview to The Wire, had alleged likewise and
detailed extraordinary steps taken to particularly humiliate and corner Bhatt
and his family. Their security cover was allegedly withdrawn without prior
intimation, agency officials allegedly walked into their bedroom as Shweta
was asleep seeking to question her husband, and the municipal corporation
allegedly sent labourers to demolish ‘illegal structures’ in their 23-year-old
house.

Also read: The Death of Amrit Das and the Search for Foreigners in Assam

The alleged harassment began in 2011, when Bhatt filed an affidavit in the
Supreme Court claiming to have attended a meeting on the eve of the 2002
Gujarat riots. He alleged that Modi, who was then chief minister and is now
prime minister, at the meeting asked senior IPS officers to to let Hindus
“vent out their anger against Muslims” in the aftermath of the Godhra train
carnage.

In the affidavit, he also alleged that it was discussed in the meeting that the
bodies of the Hindu pilgrims who had died in the Sabarmati Express would
be brought to Ahmedabad before being cremated. Senior police officials
had, according to Bhatt, then advised against this as they feared it would
incite religious violence.

Several police officers investigating the 2002 violence and the series of
alleged fake encounters have reportedly been targeted by the Gujarat
government and continue to face consequences of their involvement even
now. Some of the officers targeted were Rahul Sharma and R.B.
Sreekumar, who like Bhatt had deposed before the Nanavati
Commission regarding the government’s culpability in the riots. Satish
Verma, part of the SIT probing the Ishrat Jahan encounter case and Kuldip
Sharma, who pursued a corruption case which involved Amit Shah, were
also reported targeted.
In late 2018, a Rajnish Rai, a Gujarat cadre IPS officer who was the first
investigator in the Sohrabuddin Shaikh fake encounter case, was
suspended by the Ministry of Home Affairs.

Gujarat Police Officer Who Probed Sohrabuddin Shaikh Case

Suspended
Rajnish Rai arrested top-cop D.G. Vanzara in connection with the encounter
and had numerous run-ins with the Gujarat and Central governments.
 Gujarat IPS officer Rajnish Rai.

The Wire Staff

GOVERNMEN T

RIGH TS

21/DEC/2018

New Delhi: A special Central Bureau of Investigation court on

Friday acquitted all 22 accused in the Sohrabuddin Shaikh fake encounter
case. A day earlier, Rajnish Rai, a Gujarat cadre IPS officer who was the
first investigator in the case, was suspended by the Ministry of Home Affairs.

Rai arrested high-profile officers such as D.G. Vanzara in the fake

encounter case. He also investigated corruption in the Uranium Corporation
of India in Jharkhand and filed an internal report stating that an encounter in
Assam was staged.

Also read: All 22 Accused Acquitted in Sohrabuddin Shaikh Fake Encounter

Case

A 1992 batch officer, he is serving central deputation, heading the Counter

Insurgency and Anti-Terrorism (CIAT) School of the Central Reserve Police
Force (CRPF) at Chittoor in Andhra Pradesh.

Rai, 52, sought voluntary retirement in August this year and wrote to the
MHA saying he may be considered deemed to have resigned from the
service. The Centre rejected his plea. He had stopped attending office after
applying for VRS. The suspension order was issued because of his
absence.

Rai has challenged the MHA’s rejection of his VRS before a Central
Administrative Tribunal in Ahmedabad.
According to The Hindu, the MHA order states disciplinary proceeding were
initiated against Rai in “connection with his unauthorized handing over the
charge of IG & Principal, CIAT School, CRPF, Chittoor and abdication of
office on 30.11.2018.” It adds that until he is under suspension, Rai cannot
leave Chittoor without the permission of the CRPF’s director-general.

The order was delivered to Rai’s Vadodara residence. According to The

Hindu, Rai marked his protest while receiving the suspension order. He
wrote, “The order of suspension by MHA, GOI is absolutely illegal and
unconstitutional as I have retired from service as for operations of law and
rules after office hours on on 30.11.2018.”

Sohrabuddin Shaikh
Sohrabuddin Shaikh investigation

Rai was the first investigating officer in the fake encounters of Sohrabuddin
Shaikh, his wife Kausar Bi and Shaikh’s aide Tulsiram Prajapati. In 2007, as
the deputy inspector general (DIG) of the Gujarat CID’s crime branch, Rai
arrested top cops D.G. Vanjara and Rajkumar Pandian of the Gujarat cadre
and Dinesh M.N. of the Rajasthan cadre as key accused.

The case was then handed over to the CBI under the Supreme Court’s
guidelines. During the CBI’s investigation, several high-profile accused in
the case, including Amit Shah and the three officers arrested by Rai, were
discharged. The 22 people acquitted by the special CBI court on Friday
were mostly low-level police cadre.

After the case was handed over to the CBI, the Gujarat government
downgraded his annual confidential report, an annual appraisal system
within the civil services. Rai appealed before a Central Administrative
Tribunal, which stayed the downgrading. The state government later
rectified his record in 2011.

Uncovering corruption in Jharkhand

In August 2014, soon after the Bharatiya Janata Party (BJP), led by
Narendra Modi, came to power at the Centre, Rai was transferred out of
Gujarat. He was posted as the chief vigilance officer (CVO) of the Uranium
Corporation of India Ltd (UCIL) in Jadugoda, Jharkhand.

Here, he submitted a report to the CBI stating that he had uncovered

massive corruption and irregularities. The report said the “work of removal of
overburden/waste and extraction of uranium ore at Banduhurang opencast
mine” was awarded in a corrupt manner. Sadbhav Engineers Ltd, an
Ahmedabad-based engineering company, was awarded the contract
through an open tender despite a Delhi-based firm quoting Rs 46 crore less.

Also read: The Gujarat Government’s Attempt to Target a Police Officer Has
Backfired, Badly

Bizarrely, the department chargesheeted him for conducting an

unauthorised probe. He was accused of acting “without due approval from
the competent authority”.
He once again approached the Central Administrative Tribunal, which later
stayed the inquiry against him for probing alleged “misconduct by CMD and
functional director, Uranium Corporation of India Ltd (UCIL), Jaduguda, in
Jharkhand without permission.”

Former Gujarat Police Officer, D.G. Vanzara. Credit: PTI

Transferred again

In April 2015, Rai was once again transferred, this time to the CRPF at
Shillong. Two years later, in April 2017, he filed an internal report saying the
March 30 encounter in Assam’s Chirang district, which killed two people,
was “staged”.

The details of the report were published by the media and the home ministry
initiated an inquiry, suspecting Rai was the source of the leak.

Also read: It’s Time to Recall the Other Gujarat Model

In June 2017, Rai was abruptly transferred to the Counter Insurgency and
Anti Terrorism (CIAT) School of the CRPF in Chittoor in Andhra Pradesh.

In August 2018, Rai sought early retirement, which the Centre rejected.

Several other Gujarat police officers also hounded

During Modi’s reign as the chief minister of Gujarat, several police officers
investigating the 2002 violence and the series of alleged fake encounters
were targeted by the state government.

Some of the officers targeted were Rahul Sharma, R.B. Sreekumar and
Sanjeev Bhatt, who deposed before the Commission of Inquiry regarding the
government’s culpability in the 2002 riots. Rai, Satish Verma, part of the SIT
probing the Ishrat Jahan encounter case and Kuldip Sharma, who pursued a
corruption case which involved Amit Shah, were also targeted.

Lawyer Sarim Naved, writing for The Wire, said:

All these police officers who took on difficult cases against the government
were first sought to be targeted during the course of their investigations.
Almost all of them were denied promotion on the grounds of flimsy
departmental chargesheets and had to approach the Central Administrative
Tribunal for simple things like promotion. … What is odd about the treatment
meted out to all these officers was that the attacks against them by the
government have been so uniform. The pattern is the same. Denial of
promotion, resurrection of old cases, filing of flimsy departmental
chargesheets and an absurd criminal case or two.

Sanjiv Bhatt was arrested in September this year in connection with a 22-
year-old drug seizure case. His bail plea was rejected earlier this month.

How Has the Supreme Court Fared During the Modi Years?
After five years of Modi rule, we see the Supreme Court timid, tentative,
fragmented and vulnerable; wary of hurting the central executive which has
grown mighty in strength.
The Supreme Court. Credit: PTI
Manu Sebastian

LAW

POLITICS

12/APR/2019

The Supreme Court of India grew considerably in power and stature during
the two decades since 1990, earning the epithet “the most powerful court in
the world”. During this period, the Supreme Court conferred on itself the
primacy in judicial appointments through the invented system of ‘collegium’,
and substantially expanded its judicial review powers to intervene in several
issues which were traditionally reserved for the executive. The weapon of
“continuing mandamus” was sharpened by the Court, using which it passed
orders and formulated guidelines on issues of social welfare, environment
protection, electoral reforms etc.

The growth in power of the apex court was in tune with the corresponding
decline in the assertiveness of central executive, which was mostly stitched
together by hotchpotch alliances. The apex court emerged as the last
bastion of hope in the eyes of public, who were disillusioned with political
executive. The judiciary was seen as playing an activist role to compensate
the inaction of the executive, which was perceived to be weak,
compromised and corrupt.
But the 2014 elections changed the scenario. For the first time in past 30
years, the electorate returned a mandate with absolute majority. And for the
first time after donning the activist-reformist role, the judiciary was
encountering a government, which was strong on its feet in terms of
numbers.

Has the Supreme Court been able to assert its independence in the face of
new found assertiveness exhibited by the Central government? The answer
cannot be an emphatic yes, as will be explained through the following
issues.

Judicial appointments

The bitter experiences of Indira Gandhi-era, where judges were appointed,

transferred and superseded at the whims of the executive, forced the
judiciary to think of a solution to guard its independence. The Collegium
system of judges appointing judges with a subdued role for the executive
was the answer found by it.

However, post-2014, there has been a considerable shift in the power

dynamics over judicial appointments.

Immediately after coming to power, the NDA government sought to establish

who will get to call the final shots over judicial appointments. Giving no
hoots about established conventions, the central government split up
collegium recommendations to reject the proposal for elevation of senior
advocate Gopal Subramanium. The then CJI R.M. Lodha responded
strongly to this act of the Centre, and wrote to the law minister that the
government should not adopt such “unilateral segregation” in the future.

However, Gopal Subramanium’s abrupt withdrawal of consent avoided a

possible escalation of the confrontation between the two. He said that he
was targeted for his role as amicus curiae in the Sohrabuddin fake
encounter case.
 Former Chief Justice R.M. Lodha. Credit: PTI/Files

With the intent of wresting the primacy over judicial appointments from
judiciary, the government soon brought in an amendment to the Constitution
to create ‘National Judicial Appointments Commission'(NJAC). The
amendment had a very short life, as within 10 months, it was struck down by
a constitution bench of the Supreme Court by a 4:1 majority. Rather than
constitutional wisdom, what is discernible in the majority judgment is the
anxiety of the judiciary to preserve its own primacy in judicial appointments.
The judgment acknowledged that the collegium system needed reforms, and
said that a new Memorandum of Procedure (MoP) for judges appointment
was to be formulated

Ever since the striking down of Constitutional amendment introducing NJAC,

things have not been very smooth between the Centre and the Collegium.
Union minister Arun Jaitley lashed out at the NJAC judgment terming it
“tyranny of the unelected”. The major bone of contention between the two
wings was the finalisation of MoP for appointment of judges.

Because of the stand-off between the government and the Collegium about
MoP finalisation, judicial appointments got delayed. The Centre dragged its
feet on the Collegium recommendations regarding judges’ appointments and
transfers, leading to a spike in unfilled vacancies in high courts across the
country. Many high courts such as the ones in Calcutta and Karnataka are
now functioning with half the sanctioned strength, and lawyers have
resorted to strike calling for filling up of vacancies.

In 2016, the Centre’s delay in processing the Collegium recommendations

caused much anguish to the then CJI T.S. Thakur. While speaking at a
public function in which PM Narendra Modi was also attending, CJI Thakur
made an emotional appeal to the Centre to act promptly on judicial
appointments and, in fact, broke down to tears during his speech. Neither
his criticism nor the tears could move the government.

Chief Justice of India T.S. Thakur. Credit: PTI

This period witnessed the Centre gradually establishing its one-upmanship

regarding judicial appointments. The Centre wore brazenness on its sleeve
while sending back the recommendation for elevation of Justice K.M.
Joseph.
This pattern was followed in cases of controversial transfers of Justice
Rajeev Shakdher, Justice Jayant Patel and Justice A.M. Kureshi (discussed
in more detail in this article). Coincidentally, all these judges had at one of
point of time in their judicial career passed verdicts adverse to the interests
of the powerful establishment.

Another recurring trend was that of Centre ignoring the recommendations

reiterated by the Collegium, blatantly violating the settled law that once a
name is re-recommended by the Collegium, it is binding on the government
(the instances are detailed in this article).

One can also see a consistent pattern of sitting over files, splitting up
recommendations and selective acceptances of names by the Centre over
the past five years. In some cases, files were kept pending for several
months; while in some cases, the Centre acted within 48 hours of
recommendation by the Collegium.

The Supreme Court has appeared confused and helpless in responding to

the repeated snubs from the government on collegium recommendations. It
has signalled its protests, but to not much avail. Former CJIs Lodha, Thakur,
and Khehar have been very active in voicing concerns in this regard. The
present CJI Ranjan Gogoi has also conveyed to the Centre his unhappiness
over delay. However, the Centre has been giving a cold shoulder to these
concerns.

Questionable verdicts in cases involving political stakes

The pre-2014 apex court was not hesitant in going against the Central
executive in matters involving high political stakes. This was evident in the
2G licenses cancellation cases and coal scam cases. Though the coal-gate
case verdict was delivered in September 2014 after the coming of NDA
government, its hearings took place in the last leg of UPA-II, during which
the court passed several oral remarks (including the now famous “CBI is
caged parrot” remark), badly stinging the government. The interventions of
the court drew a lot of cheers from the media and public, which hailed
judiciary as a crusader against corruption and misgoverance.

But post-2014, the SC presented a meeker version when it came to dealing

with cases which could prick the political interests of the ruling party. The
verdicts in politically charged cases such as Sahara-Birla, Loya, Bhima-
Koregaon, Rafale, Aadhaar etc have invited a lot of criticism that when it
comes to taking on the system, the Court acts hesitant.
Sahara-Birla papers case

The first one of such challenges was posed by the Sahara-Birla papers
case. It was a PIL filed by the NGO Common Cause seeking a court
monitored probe in respect of documents retrieved by the Income Tax
department while raiding offices of the Sahara and Birla group of
companies, which allegedly had entries suggesting giving crores of rupees
as bribe to Narendra Modi and other BJP leaders.

The writ petitioner sought registration of FIR and court monitored probe,
based on the dictum in Lalithakumari’s case that registration of FIR is
mandatory when a complaint revealing cognizable offence is lodged.

The bench of Justices Arun Mishra and Amitava Roy dismissed the petition.
But it was not a simple dismissal. The court aborted the issue once and for
all, by declaring that the “materials in question are not good enough to
constitute offences to direct registration of FIR”. The court could have simply
dismissed the case, asking the petitioner to avail other statutory remedies.
Instead, the court went on to adjudicate the merits of the matter, and held
that the diary entries are not admissible in evidence as per Section 34 of the
Evidence Act. The admissibility of the documents is not an issue which is to
be looked into at the stage of investigation.

That issue arises only during the trial of the case. Only a full-fledged
investigation can unearth other materials which can substantiate entries in
the documents. Therefore, to abort investigation on the ground that
documents are not admissible in evidence is like putting the cart before the
horse. To decide whether to order investigation, the Supreme Court applied
the yardstick of a trial court with regard to admissibility of evidence. The
judgment appeared to be against the well established legal principle that for
registration of FIR, allegation of cognizable offence is sufficient.

The Court’s approach was in stark distinction with its earlier approach
adopted in the 2G case, where a court monitored probe was ordered on the
basis of materials produced by the petitioner-NGO.

Loya case

Similar thing happened in the Loya case too, which was equally
controversial with high political stakes. The case pertained to suspicions
raised about the death of CBI judge B.H. Loya, who was hearing the
Sohrabuddin encounter case in which BJP chief Amit Shah faced conspiracy
allegations.

Not only did the Court dismiss the petitions seeking independent probe into
judge Loya’s death, but the court conclusively held that he died of natural
causes. Constitutional lawyer Gautam Bhatia has commented that the
judgment “reads like a trial court judgment that has been delivered without a
trial”. The judgement authored by Justice D.Y. Chandrachud (for the bench
of himself, CJI Dipak Misra and Justice Khanwilkar) placed unverified trust
on the statements of judicial officers, who had said that Loya had died of
natural causes.

The court refused to allow the cross-examination of those judicial officers.

The court ought to have seen that the petitioners’ were praying for an
independent investigation, and for ordering an investigation, it was enough
to raise reasonable suspicion of commission of offence. There is no need to
establish the offence with all materials for seeking an investigation. But all
the questions were shut down with the “discreet enquiry report” produced by
the state government, which was opposing the investigation tooth and nail.

Judge B.H. Loya. Credit: Facebook

The judgement, with its constant invocation of the theory that judicial officers
will not make false statements, fails to satisfy an inquisitive and discerning
mind. The conclusive findings are arrived at without following any fair
process. The court ought to have borne in mind that it was closing the issue
forever by its conclusive findings. Therefore, it was ethically incumbent on
the court to hear the views of all stake-holders, like the family members of
Judge Loya, reporters of the Caravan magazine who brought out the issue,
etc before putting a permanent quietus to the issue. But such considerations
of fairness and transparency were totally ignored by the SC.

Bhima Koregaon

The Bhima Koregaon case related to a PIL filed by Romila Thapar and four
other eminent persons seeking SIT investigation over the UAPA charges
against five activists Sudha Bhardwaj, Gautam Navlakha, Vernon
Gonsalves, Varavara Rao and Arun Ferreira on the ground that investigation
by Maharashtra police was biased. The case was dismissed by 2:1 majority,
with the dissent of Justice Chandrachud.

While the majority opinion of the then CJI Dipak Misra and Justice
Khanwilkar endorsed the probe by Maharashtra police, Justice
Chandrachud disagreed saying that it was a case of arrest targeting political
dissent. The majority opinion omitted from consideration certain facts which
acted as heavy influencers in the dissent of Justice D.Y. Chandrachud.

While the majority opinion is on set of facts ‘A’, the dissenting opinion is on
set of facts ‘A+B’. The majority opinion does not care to state why the
additional facts ‘B’, which caused the dissent, are not applicable or totally
irrelevant for consideration. The majority was blissfully blind to those facts!

The dismissal of the case gave momentum to the ‘urban naxal’ narrative
tailored by anti-constitutional propagandists to label those who question
government policies.

Rafale case

In the Rafale case too, the approach of the court was not above criticism.
While declining to order probe into corruption allegations over the deal by
citing the limited scope of judicial review over defence deals, the court
declared that decision making process was proper, accepting the
government’s version on pricing and concluding that government did not
interfere in selection of Reliance as offset partner.

To analyse the issue whether the alleged procedural irregularities in the deal
gave raise to doubts of corruption, which warrant a court-monitored probe,
there was no need to review the merits of the deal.
However, the court went on to do that. When there are conflicting versions
of facts presented by two sides, the proper course would have been to
entrust the job of facts collection to an independent agency. Instead, the
court took the denial of one of the contesting parties at face value and
sealed the issues with a seemingly conclusive force.

Chief Justice of India Ranjan Gogoi. Credit: PTI

However, the court soon landed itself in embarrassment, as the government

said that the judgment contained factual errors and required correction. The
observations in the judgment regarding CAG tabling a report on the pricing
details of the deal, and Parliamentary Accounts Committee verifying the
same were termed as a misunderstanding of the information supplied by the
government to the court in a sealed cover.

Since the court has decided to give a detailed hearing in open court to the
review petitions, it is inappropriate to comment more. The court has decided
to consider the review petition on merits, rejecting the objections of Centre
against use of ‘privileged’ documents produced by petitioners in evidence.

CBI-Alok Verma

CBI-Alok Verma was a case of justice delayed. The case presented a

straightforward question: whether divesting Alok Verma of the powers of CBI
director amounted to his removal from the post, which needed sanction of
the High Powered Selection Committee as per the Delhi Special Police
Establishment Act. The CJI-led bench initially sought for the details of the
corruption allegations against Verma in sealed cover. Later, the court chose
to restrict itself to the point of need for sanction from Selection Committee,
without touching on the merits of allegations.

When the court directed his reinstatement on January 10, it was too late, as
Verma had only three weeks left in his term. The reinstatement was made
subject to the sanction of Selection Committee.

Anyhow, the delay in the case ensured that the powers that wanted Verma
out of the director post succeeded in doing so without facing legal
consequences.

Aadhaar Act as a Money Bill

Another problematic decision delivered by the SC is the Aadhaar judgment,

where it accepted that there was no illegality in introducing Aaadhaar Act as
a money bill.

The majority judgment by Justice A.K. Sikri held that since Section 7 of the
Act said that Aadhaar based identity authentication will be done for
delivering of subsidies, benefits or services charged on the consolidated
fund of India, it could be introduced as a money Bill. This incidental
connection with consolidated fund of India qualified it as a money Bill, as per
majority opinion. This is a highly puzzling logic.
 Fie photo of Justice A K Sikri. Credit: PTI

As per Article 110 of the Constitution, a money Bill can have provisions only
relating to the spending and receiving of money by the Union government.
The manner in which identity of a person is authenticated before delivery of
subsidies, services, benefits cannot be a concern of money Bill.

Criticising the judgment, Alok Prasanna Kumar wrote in The Wire:

A money bill has provisions only relating to the spending and receiving of
money by the Union government. Nowhere does the majority judgement
grapple with the meaning of this crucial word. Nowhere does it cite case law
on the meaning of the word “only” and its implications for a clause such as
this. Nowhere does it make the effort to segregate the provisions of the
Aadhaar to see which ones would fall within the scope of Article 110.
Justice Chandrachud dissented and described the passing of Aadhaar Act
as money Bill a “fraud on constitution”.

This judgment of the Constitution Bench will have far reaching

consequences in legislative process, as it will embolden the government to
completely bypass the Rajya Sabha by introducing any bill as a money bill
by citing some remote connection with the consolidated fund of India.

Challenge to demonetisation, electoral bonds: No timely hearing

Another emerging trend seen in SC was the evasion of decision by delaying

the hearing of highly controversial matters.

After the announcement of demonetisation in November 2016, several

petitions were filed in SC challenging the decision. The petitions had raised
substantial legal points such as whether the decision was unilaterally
announced by the Government without the proper consultation of RBI
Board. On November 25, 2016, the SC agreed to examine the
constitutionality of the decision; Many of such concerns are found to be
relevant in the light of post demonetisation-revelations and current status of
economy. Anyhow, the petitions never got an effective hearing.

A poster at a store. Credit: Reuters

Similar was the fate of the petitions challenging electoral bonds scheme.
These petitions were filed soon after the passing of Finance Act 2017, which
introduced the legislative amendments for the scheme. However, the case
became alive only by March 2019, by which time most of the electoral bonds
have been purchased. The failure to consider these cases timely is a grave
concern, as the Election Commission of India itself has come on record
saying that the scheme has dangerous impact on transparency in political
funding.

Executive interference in judicial administration?

Another disturbing concern is that of the revelations by judges regarding

executive interference in administrative matters of judiciary such as
appointment and constitution of benches.
 Supreme Court judge Jasti Chelameswar along with Justice Ranjan Gogoi during a press
conference in New Delhi on January 12. Credit: PTI/Ravi Choudhary

Hints regarding this was dropped at the historic press conference held by
four senior judges on January 12, 2018. Justice Chelameswar, who did most
of the talking at the presser, said that administration of justice was not in
order and that “many things which are less than desirable have happened in
the last three months”.

The judges handed over to media a letter written by them to the then CJI
Dipak Misra, which, among other things, stated that “cases having far-
reaching consequences for the nation and judiciary were selectively
assigned to benches of preference without any rational basis”.

More clarity on this issue was provided by Justice Kurian Jospeh, who in a
post-retirement interview to Times of India said that there was “outside
influence” in judiciary.

“Someone from outside was controlling the CJI(former CJI Dipak

Misra).There were several instances of external influences on the working of
the Supreme Court relating to allocation of cases to benches headed by
select judges and appointment of judges to the Supreme Court and high
courts. Starkly perceptible signs of influence with regard to allocation of
cases to different benches, to select who were perceived to be politically
biased.”
 Justice Kurian Joseph. Credit: LiveLaw

In this backdrop, it has to be borne in mind that the allocation of Loya case
to the bench headed by Justice Arun Mishra (who headed the bench in the
Sahara-Birla case) was one of the sudden trigger for the press conference.
The case was later heard by a bench headed by CJI.

Justice Chelameswar has also made similar comments, while calling for a
full court meeting to discuss government interference in appointments. To
block the elevation of judge Krishna Bhatt to Karnataka HC, the central
government had directly written to the then CJ of Karnataka HC Justice
Dinesh Maheswari (now elevated to SC). Condemning such practice of the
Centre directly communicating with the High Courts, Justice Chelameswar
asserted that “bonhomie” between the judiciary and the government “sounds
the death knell to democracy”

Judiciary left battered and enfeebled

Emboldened by its brute majority, the Modi government has embarked on
open confrontation with the judiciary over several matters. The collision
course with the political wing over five years has left the judiciary battered
and enfeebled. Coupled with it, the controversies emanating from the court
(medical college bribery case, master of roster issue, impeachment motion
against former CJI Dipak Misra) made it look like a divided house and
resulted in the erosion of moral authority it once enjoyed among public.

Prime Minister Narendra Modi at a dinner hosted by Chief Justice of India Ranjan Gogoi on
November 25, 2018.
At the same time, it will be an overstatement to say that the Supreme Court
did not exhibit its reformist spirit to uphold constitutional values during this
period. Subdued it may have been; but not totally extinguished.

In matters concerning civil liberties where there are no political stakes

involved, the Court has adopted a progressive stand, expanding the
transformative vision of the Constitution. This was clear in privacy case,
Sabarimala case, and also judgments striking down Section 66A IT Act,
Section 377 & 497 IPC.

To its credit, the court got the government to appoint the Lokpal, though
belatedly, after a long inaction of five years. The Constitutional Bench
judgment in Delhi-LG case is also notable, as it gave primacy to the decision
of the elected government in Delhi, resisting the attempts of the central
government to control it through LG. However, on the issue of who has the
power to control services in Delhi, the SC could not reach a decision, and
the matter stands referred to larger bench.

The midnight intervention of the court in the Karnataka assembly case,

which ensured that proper democratic conventions will be followed in
government formation, is also commendable.

But these instances are little rays of home amidst dense clouds of
scepticism generated over independence of judiciary.

To sum up, after five years of Modi rule, we see the Supreme Court timid,
tentative, fragmented and vulnerable, wary of hurting the central executive
which has grown mighty in strength.

Edited, printed , published owned by NAGARAJA.M.R. @ # LIG-2 No 761,

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