A historic day for democracy and independence of judiciary

January 12, 2018 will go down in the history of Indian democracy as a memorable day. A day when members of the highest judiciary rose to question the mafia that has grabbed power in our country through EVM manipulation, coupled with instilling unfounded fear of the Muslim gnome in a good section of the Hindu majority.

The four senior most judges of the Supreme Court - Justices Jasti Chelameshwar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph - have torn apart the veil behind which some chosen members of the highest judiciary with the implicit consent of this government, seem to be acting in a partisan manner prejudicial to imparting fair and impartial justice.

The issue has come to fore on the question of the circumstances surrounding the death of Justice B H Loya way back in 2014 who was trying our current BJP president Amit Shah for the alleged fake encounter of Sohrabuddin Sheikh in Mumbai, since the Supreme Court had taken cognizance of the apprehensions expressed by the CBI way back in 2010, that a fair trial of the case may not be possible in Ahmedabad where originally an appeal was filed contesting the government version of killing Sohrabuddin, supposedly on a terror mission, in an encounter. Amit Shah was then the Minister of State for Home in Gujarat government headed by then chief minister Narendra Modi.

The case has grave implications for the conduct and impartiality of the judiciary considering that the family members of Justice Loya, in particular his doctor sister, lawyer niece and father alleged that the then chief Justice of Bombay High Court had suggested to Loya when he was alive that he could get Rs 100 crore as also a big flat in any posh locality of Mumbai for a favourable judgment. Curiously immediately after Loya’s mysterious death, the next judge dismissed the case in a single sitting and discharged Amit Shah.

Such a situation warranted suo moto action by the judiciary. But the whole case was happily buried. Then following the disclosure by Caravan magazine about Loya’s death three years ago, two persons - Maharashtra-based journalist BR Lone and lawyer Tehseen Poonawala - filed petitions in the Supreme Court seeking a high level probe into Loya’s death. This proved to be a trigger for the sudden explosion in the high judiciary of India.

The senior most judges were apprehensive of the matter not getting a fair trial because it was handed over by the Chief Justice using his powers of deciding the roster, to the junior most Supreme Court judge, 10th in the order of seniority, Justice Arun Misra. Justice Arun Mishra is clearly a hot favourite of the establishment along with, it seems, Justice Amitava Roy. The two saved Prime Minister Narendra Modi when the case came up of alleged payments in crores made through cheques by the Sahara and Aditya Birla group to Modi when he was the chief minister of Gujarat as well as to Madhya Pradesh Chief Minister Shivraj Singh Chauhan which in the normal course should have demanded a thorough probe. Mishra hails originally from MP and when he held a wedding reception for his nephew on December 10, 2016, Chauhan attended the function demonstrating the close proximity Judge Mishra had to the MP Chief Minister and soon he dismissed the case, giving a big relief to Chauhan as well as the Prime Minister.

Then there was the case of alleged bribery of judges in granting recognition to medical colleges and this too went to a bench comprising of Mishra where again instead of taking cognizance of the complaint, Justice Mishra threatened to send Prashant Bhushan the lawyer activist to jail for contempt of court for questioning the integrity of the highest judges.

In such a situation the decision to hand over the Judge Loya case to the bench comprising Justice Arun Mishra and Amitava Roy yet again does create some degree of apprehension about the outcome of the case.

This was the background in which the four judges went and met Chief Justice Dipak Misra this morning and having failed to persuade him to change his mind, decided to go public.

Naturally then it is bound to have far reaching repercussions in the higher judiciary in India. Questions have been raised even earlier about the impartiality of the presiding officers in several cases. The latest of course was the Lalu Yadav case. After the Ranchi CBI court had punished him for five years in one supposed Fodder scam case and the next case came up again in Jharkhand only on the same charges, he approached the Jharkhand High Court which upheld the common matter of jurisprudence that a person cannot be tried twice for the same offence and stopped the trial in other related cases. The CBI then went to the Supreme Court where a bench comprising of Arun Mishra and Amitava Roy threw to the winds this basic principle and ordered that Lalu be tried and punished in each case separately. That really gladdened the hearts of Lalu baiters led by none other than Modi, Amit Shah, Sushil Modi and the country’s Law minister Ravi Shankar Prasad, one time litigant against Lalu.

Similarly a retired judge whose partisanship clouded all his important judgments, Justice S N Dhingra, with clear communal prejudices and a typical RSS bias against the Congress party, has been appointed to chair the umpteenth probe into the 1984 anti-Sikh pogrom whose job is to straight away hang some Congressmen. Before he sets about his task the end result is well known to this Sanghi government. After all he is the one who awarded death sentence to all the accused in the Parliament attack case all of whom with the exception of Afzal Guru were acquitted by the higher court and as for Afzal he was never given proper legal assistance to contest the charges against him, despite pleading constantly with Justice Dhingra who presided over the first trial of that case.

The tussle between the Chief Justice and the senior most judges came to the fore first when the two-judge bench comprising Justice Chelmeshwar and Justice S Abdul Nazeer ruled for a bigger bench comprising of senior most judges of the Supreme Court to hear the case of alleged bribery of judges in granting recognition to medical colleges.

On November 10 last, a five-judge bench led by the Chief Justice himself and comprising of Justice Arun Mishra, Justice Amitava Roy, Justice R K Agarwal and Justice A M Khanwilkar overturned the earlier order of the Supreme Court holding that no one but the Chief Justice has the right and authority to decide and order a bench, in spite of litigants Prashant Bhushan and Kamini Jaiswal arguing for a thorough and impartial probe. Instead Bhushan was told he was leveling wild allegations against the highest judiciary and was liable to contempt of court.

We all suspected this, but it now out in the open that if you save and please the saffron establishment today, you need fear nothing. That is the significance of this act of courage by the four judges.

(Opinion is that of the writer and does not reflect on the views of National Herald)