Bar v. Bench: Dushyant Dave opposes elevation of Justice Mohit Shah to Supreme Court

Senior Advocate and President of the Supreme Court Bar Association, Dushyant Dave has written two strongly worded letters to the Chief Justice of India (CJI) HL Dattu opposing the proposed elevation of Bombay High Court Chief Justice Mohit Shah to the Supreme Court..Dave, who hails from Gujarat, has opposed Shah’s elevation to the Supreme Court on the ground that “his conduct was wholly unbecoming of a judge and…lowered the image of judiciary of Gujarat to a great extent.”.The first letter has been written on February 6 and begins by expressing “his deep anguish in view of the reports appearing in the newspapers about the meeting of the Collegium to consider possible appointments to the Supreme Court of India.”.Acknowledging that the “Collegium commands universal respect”, Dave goes on to state that Justice Mohit Shah’s appointment to the Supreme Court should not be considered by the Collegium since it had been considered by the Collegium on more than one occasion before and rejected on account of serious and improper personal conduct and personal traits. As per the letter,.“His conduct was wholly unbecoming of a judge and administrator (as a puisne Judge, as a Collegium member and as the acting Chief Justice). But most of all this lowered the image of judiciary of Gujarat to a great extent. Thus, Chief Justice Mohit S Shah forfeited his right to be considered for Higher Judiciary long ago on account of his own conduct.”.Dave further states that there was enough material against Justice Shah when his case was considered and rejected by previous Collegiums. Dave has also requested the CJI to make such material public in the “larger good of the Judiciary and the Nation.”.He has also contended in his letter that reconsideration of Justice Shah’s name for appointment to Supreme Court would be against the Constitution Bench judgment of the Supreme Court in the “Second judges case” and would be “grossly improper and will seriously impact the reputation and goodwill of the Hon’ble Supreme Court of India.”.The letter further states that in the trial of BJP leader Amit Shah in the Sohrabuddin fake encounter case, the Bombay High Court, with Justice Shah as the Chief Justice, did not follow the mandate of the Supreme Court that the “trial should be conducted from beginning to the end by the same officer.”.“The learned Trial judge was changed on one pretext or the other three or four times without seeking the leave of this Hon’ble Court…I am not on the merits of a Judicial Order that may have been passed in favour of the Mr. Amit Shah, but on the act of commission or omission on the part of Chief Justice Mr. Mohit S. Shah as Head of the Bombay High Court. Any reconsideration at this stage of his case would perhaps raise serious and justifiable doubts in the minds of right thinking citizens. It is one thing for the political establishment to reward a Judge by offering him the Governorship but it is entirely different for the Collegium to do so. I respectfully request that this ought to be avoided in larger interests of the Judiciary.”.Following up his letter of February 6, Dave has written a second letter yesterday. This letter has highlighted Justice Shah’s allegedly dubious conduct in a case in the Gujarat High Court pertaining to sales tax and other exemptions amounting to approximately Rs. 10,000 crore in respect of Essar’s Oil Refinery..As per the letter, the case was initially heard and notice issued by a Bench presided by Justice Shah. Subsequently, the roster for allocation of matters changed and the case was listed before a Bench presided by the Chief Justice YR Meena. Dave alleges that Essar got the matter transferred back to Justice Shah by filing an affidavit before Chief Justice Meena’s Bench falsely claiming that the matter had already been heard and disposed of on February 19, 2008 by the Bench headed by Justice Shah. Meanwhile, Essar also filed a civil application before the Bench presided by Justice Shah in which Justice Shah passed an order on February 28, 2008 directing that the main matter be listed before the appropriate Bench..When the main matter came up for hearing before Justice Meena, he took note of the contradiction in the affidavit filed by Essar and the order passed by Justice Shah on February 28, 2008, and proceeded to record in his order that he could not find such a judgment passed on February 19, 2008 as claimed by Essar in its affidavit. However, Justice Meena subsequently remanded the matter back to the Bench presided by Justice Shah “to avoid further controversy.”.Subsequently, the matter was disposed of by the Bench presided by Justice Shah by allowing the benefit of tax exemptions to Essar Oil..Dave has concluded his letter by requesting the Collegium to reconsider the decision, if any, which has been taken by the Collegium to elevate Justice Shah to the Supreme Court..“I therefore, request you in view of this material to reconsider and recall, if the Collegium has indeed taken any decision to recommend the name of Chief Justice Mr. Mohit Shah for being elevated to the Supreme Court of India in the interests of the entire Judiciary and the dignity of the Supreme Court of India.”.Read the two letters written by Dave to the CJI below..Image of Justice Mohit Shah taken from here.