Reporter’s Diary: The reason behind the Judges Press Conference and the case of the missing SG

Bar & Bench September 4 2018

Reporter’s Diary is a series that brings you interesting snippets from court hearings across the country. It attempts to offer our readers a glimpse into the interactions between judges and lawyers appearing in cases, and offers a take on recent developments in the courts.

Last Sunday, The Hindu ran a data-based story on how the Chief Justice of India has involved his senior colleagues in major cases over the years. The findings buttress what is already known to the Supreme Court watchers: the representation of Collegium Judges has been the among the lowest during current CJI Dipak Misra’s term.

However, the story appears to miss certain points. The concept of Collegium Judges is relevant only for making recommendations to appoint new judges to the High Courts and the Supreme Court. As far as allocation of cases is concerned, the CJI, as the master of the roster, uses his discretion to allot cases to all the Judges, irrespective of their seniority within the Court. Justice Misra’s discretion in allocating sensitive cases, however, has been called into question.

The Hindu story does not make a distinction between cases heard by three-judge benches and Constitution benches of five and more. The study finds that CJI P Sathasivam constituted the highest percentage of benches in which apart from himself, there were no Collegium members: 65.7 percent.  Yet, unlike the present CJI - who has constituted such benches in 61.7 percent cases so far - CJI Sathasivam did not invite any controversy during his tenure on this count.

The authors of the Hindu story, however, can be faulted for one erroneous observation:

“The four collegium judges who complained about case allocation had felt that cases were allocated to junior hand-picked judges against the conventions of the court.”

The four Judges did not make any such complaint in their letter to the CJI or at their press conference. What they alleged in their letter was that sensitive cases were allocated to “preferred benches”. Indeed, Justice Jasti Chelameswar, who presided that press conference, in his subsequent interactions with journalists, denied that they complained about junior judges being allocated sensitive cases.

Thus, Justice Chelameswar told Karan Thapar during his well-publicised interview that instead of the first five senior Judges, it could be the last five. By convention, however, successive CJIs have, according to some court watchers, allocated sensitive cases to the first five, emphasising their importance. But this convention appears to have been breached at some point in the past.

Non-inclusion of Collegium Judges in the benches hearing important matters was not the real reason behind the Judges’ January 12 press conference, as is mistakenly believed. According to reliable sources, it is the shifting of part-heard matters from the Collegium Judges to other judges, which prompted the judges to undertake the unprecedented press conference.

O SG, Where Art Thou?

The post of the Solicitor General (SG) has been lying vacant for several months. Yet, former SG Ranjit Kumar continues to hold office despite his resignation.  The link to Law Officers on the Supreme Court website shows Ranjit Kumar as continuing as SG till further orders from June 7, 2017, although he resigned on October 20 last year. The link has not been updated after August 21 last year.

Ranjit Kumar has taken up his private practice with ease, appearing against the Centre in a few cases, the latest being the challenges to Article 35A, in which he vehemently opposed the Centre’s plea to the Supreme Court to adjourn the hearing to January 2019.

Visitors to the Supreme Court’s website, oblivious of his resignation last year, are sure to wonder how the second senior most law officer of the Centre is at liberty to appear for private parties, and argue against the Centre in important Constitutional matters.

Meanwhile, the Centre’s failure to fill the vacancy is taking its toll on Attorney General KK Venugopal, who is in dire need of an SG to share his burden of cases. Two recent instances proved this point.

In the National Register of Citizens (NRC) case being heard in Court No.2, Justice Ranjan Gogoi asked the AG some questions, for which the AG had no satisfactory answers to the Bench’s queries. The Bench had asked whether, at the time of filing of claims, a claimant should be allowed to submit additional documents for inclusion in the NRC.

The Bench then turned to the Coordinator for NRC, Prateek Hajela and requested him to submit a comprehensive report indicating the feasibility, including the time taken and the advantages/disadvantages that may accrue if the modification of legacy is permitted.

The AG’s submissions were also critically reviewed in another case in Court No.1, where a Constitution Bench was hearing the case relating to reservations for SCs/STs in promotions. The main issue under consideration was whether the 2006 ruling in the M Nagaraj case which limits the SC/ST quota in promotions, is correct.

AG Venugopal, while criticising the Nagaraj Bench’s insistence on quantifiable data showing backwardness of the class, inadequacy of representation of that class in public employment, and efficiency, referred to the recent incidents of atrocities against Dalits, to drive home his point that contrary to claims on the other side, the people belonging to these sections are still suffering from the stigma of belonging to a lower caste.

Senior Counsel Rajeev Dhavan interrupted the AG, and asked the Bench how these claims are relevant in this case, as there is a Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, to take care of the AG’s concerns.

Indira Jaising, also arguing for the reconsideration of the Nagaraj decision, when she got her turn to argue, made quite a few substantive arguments, as if to make up for the AG’s submissions.

The reason for referring to these two instances is to show that it is in the Centre’s interest to fill the SG’s vacancy at the earliest, in order to strengthen its defence in key cases before the Court. The appointment of an SG will only help the AG focus on cases in which his expertise is needed.

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