Interference of Politics in Judiciary

Avnish Tiwari

Abstract

We have to examine 3 words – Interference, Politics, Judiciary to understand the importance & theme of this national seminar. “Interference – the action of interfering or the process of being interfered with” & “Politics – “the activities associated with the governance of a country or area, especially the debate between parties having power or activities aimed at improving someone’s status or increasing power within an organization” & “Judiciary – the judicial authorities of a country; judges collectively.”

We will discuss about Shri Palanisamy Sathasivam, 40th Chief Justice of India to become first former Chief Justice of the Supreme Court to be appointed as the Governor of a state –According to The Hindu, “In a number of judgments, he [Sathasivam] cautioned the courts against awarding lesser sentence in crimes against women and children and showing undue sympathy towards the accused by altering the sentence to the extent of period already undergone.”

We will discuss about Shri Kuttiyil Mathew Joseph, judge of Supreme Court of India. Earlier he was the Chief Justice of Uttarakhand High Court; controversy on elevation to Supreme Court & Reiteration of collegium recommendation.

We will discuss about Jan 12, 2018 press conference about Turmoil in Supreme Court as four judges speak out against then Chief Justice Dipak Misra – Supreme Court judges J Chelameswar, present CJI RanjanGogoi, MB Lokur and Kurian Joseph release letter raising questions over the justice delivery system and allocation of cases.

We will also discuss role of participation of lawyers into different political parties, Ex Minister Kapil Sibbal, Finance Minister Arun Jaitley, Lalu Yadav etc. As outlined, we will discuss influence of politics into judiciary in 4 parts. We will discuss 5 major judgements of CJI P Sathasivam, followed by elevation controversy of KM Joseph with highlighting his order quashing President’s rule & allowing vote of confidence, followed by historical press conference on 12th Jan 2018 with highlighting Justice Loya case, followed by pressure tactics of politicians like Lalu Yadav over judges to influence decisions & Ex-minister of Law & Justice e.g. Arun Jaitley and Kapil Sibal to appear before the apex & high courts.

Part 1 – Justice Sathasivam

On a very humble pedestal, every judgment he penned down is definitely an ideal pronouncement upholding the rule of law in the country, yet in this paper author takes the liberty to confine itself to compile 5 of CJI Sathasivam’s best landmark judgments related to Politics. Justice Sathasivam, the 40th Chief Justice of India was elevated to the post of a Supreme Court Judge on 21st August 2007 from wherein the Hon’ble judge retired from the highest judicial post on 26th April 2014 after holding it for a period of around 9 months. He is also the first former Chief Justice of the Supreme Court to be appointed as the Governor of a state (Kerala) since 31 August 2014.

Please note – Justice Sathasivam is the second judge from Tamil Nadu to become the CJI, never served as Chief Justice of a High Court as he was elevated directly to the Supreme Court, when he was serving as a judge of the Punjab and Haryana High Court.

Death Penalty Judgments

 In a very important series of judgments starting from Shatrughan Chauhan case to commutation of death sentence to life imprisonment in Bhullar’s Curative Petition to stay on execution of Rajiv Gandhi’s Assassins to the reference made by Justice Sathasivamon his last day as CJI.

The Supreme Court has granted relief to the three convicts in the Rajiv Gandhi assassination case, Murugan, Santhan and Perarivalan, by commuting their death sentence into life term on the grounds that the 11-year delay in deciding their mercy petition by the Central government had a dehumanizing effect on them.The Bench, after considering the fact that the convicts were suffering jail for nearly 23 years, gave a positive response for their release by stating that the State government could use its remission powers under Section 432 and 433 and following the due procedure in law. As per reports, soon after the verdict, General Secretary of MDMK Vaiko, who was present in the court called it as an historic judgment and said that this judgment would go down in golden letters in judicial history. He appealed to the Tamil Nadu Chief Minister Jayalalithaa to consider the judgment and order the release of the three convicts exercising the State government’s powers under Section 432 of Cr.P.C.

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DMK has strongly opposed reports of former Chief Justice of India P. Sathasivam becoming the next Governor of Kerala following Sheila Dikshit’s sudden resignation. Such an appointment will set the wrong precedent that even the Bar Association was against the appointment. All India Bar Association (AIBA) chairman Adish C Aggarwala had said that the move was unethical and wrong since the BJP had opposed such post-retirement jobs for members of the judiciary when it was in the Opposition. DMK also questioned if the evident closeness between Sathasivam and Tamil Nadu Chief Minister J Jayalalithaa was the reason for the appointment. On the BJP’s change in position on appointment of judges in other positions post-retirement he asked how different the BJP was now that Sathasivam was going to be appointed.

Timing of judgement which relates to 2014 parliamentary elections made positive impact on AIADMK clean sweeping 37 Lok Sabha seats & 2 seats won by BJP. DMK & Congress were not able to win single seat. Since then AIADMK & BJP are alliance partner.

In the Mayawati vs. Union of India Case

he held that the Central Bureau of Investigation exceeded its jurisdiction in lodging FIR of disproportionate assets against Mayawati in the Taj Corridor matter and the same was quashed.

Sanjay Dutt’s Conviction in Mumbai Bomb Blast Case

Along with Justice B. S. Chauhan, Justice Sathasivam delivered the judgement in the 1993 Mumbai blasts case, which involved the sentence for Bollywood actor Sanjay Dutt to five years imprisonment under the Arms Act and to serve out the remainder of his sentence.

PUCL v. UOI (NOTA Judgment)

Among the most significant of Justice Sathasivam’s judgment was his order to include an option for “None of the Above” in EVMs. The bench headed by Justice Sathasivam pointed out that neutral voting was possible with paper ballots where an individual could place a blank ballot in the box. Overriding an argument that a negative vote was not a right, he said, “If introducing a NOTA button can increase the participation of democracy then, in our cogent view, nothing should stop the same. The voters’ participation in the election is indeed the participation in the democracy itself.” However, he clarified a month later that an overwhelming number of NOTA votes would not result in a fresh election.

Resurgence India Case: The Case Which Forced Mr. Narendra Modi To Affirm His Wife

In this case the Supreme Court through Justice Sathasivam ushered in a fresh dose of electoral reforms by ruling that no one can contest elections without making a full and honest disclosure about his/her assets and educational and criminal antecedents. Writing the judgment for the bench, CJI Sathasivam said in a vibrant and dynamic democracy like ours, a voter had the elementary right to know full particulars of a candidate who would represent him in Parliament. But the bench also provided the candidates with an alternative. “The candidate must take the minimum effort to explicitly remark as ‘NIL’ or ‘not applicable’ or ‘not known’ in the columns and not to leave the particulars blank, if he desires that his nomination paper be accepted by the returning officer,” it said.

Part 2 – Kuttiyil Mathew Joseph

After practising as an advocate in the Kerala High Court, Kuttiyil Mathew Joseph was appointed as a judge in October 2004 to 2014. At the Kerala High Court, Joseph is remembered for handling many environmental cases with high political stakes. In 2013, he ordered the demolition of aRs 150 crore resort illegally constructed on a private island in Alappuzha. Joseph, who headed the high court bench, also pulled up state authorities for clandestinely allowing the construction.

Justice Joseph was appointed the ninth Chief Justice of the Uttarakhand High Court in 31st July 2014 on the recommendation of the Collegium, led by the then Chief Justice of India R.M. Lodha. The Uttarakhand High Court verdict quashing President’s rule was a watershed in Joseph’s career, has symbolised the tug-of-war between the government and the judiciary under the Narendra Modi administration. The issue came to the division bench of the court after a single judge ordered a floor test on March 28 following controversy over the passage of Appropriation Bill on March 18 with the BJP and dissident Congress MLAs claiming the money Bill had fallen and the government has lost its majority. A day before the floor test was to have been held the Centre imposed President’s Rule on March 27 citing breakdown of Constitutional machinery as a ground. Harish Rawat approached the division bench challenging the imposition of the President’s Rule.

Coming down heavily on the Centre for the March 27, 2016 proclamation under Art 356, a division bench of the high court headed by Chief Justice K M Joseph said the imposition of the President’s rule was contrary to the law laid down by the Supreme Court. Allowing ousted Chief Minister Harish Rawat’s petition challenging the Presidential proclamation, the bench, also comprising Justice V K Bist, observed that the material considered for imposing President’s rule “has been found wanting”. Upholding the disqualification of nine dissident Congress MLAs, the court said they have to pay the price of committing the “Constitutional sin” of defection by being disqualified. Dealing a major blow to Modi government, the Uttarakhand High Court today quashed the imposition of President rule in the state and revived the Congress government headed by Harish Rawat, who has been asked to prove his majority on the floor of the Assembly on April 29, 2016.

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“You (the government) can do this in every state. Impose President’s Rule for 10-15 days and then ask someone else to take the oath. More than angry, we are pained that you are behaving like this. That the highest authority — government of India — behaves like a private party,” Joseph had said. The court also turned down an oral plea made by the Centre’s counsel for a stay on its judgement to move the Supreme Court against it. The bench said we won’t stay our own judgement. “You can go to the Supreme Court and get a stay,” it said.

In May 2016, just a day after the ruling, the collegium recommended transferring Joseph out of the hilly state, raising many eyebrows. Although it was later clarified that it was Joseph himself who had sought the transfer as the high altitude of Nainital was proving unsuitable for his health, the Modi government sat on the transfer file for over a year. The collegium responded by recommending him as an SC judge, adding that he is “more deserving and suited than any other chief justice”.

On January 10, 2018, the Supreme Court Collegium, led by Chief Justice Dipak Misra, recommended Uttarakhand High Court Chief Justice Kuttiyil Mathew Joseph for appointment as judge of the Supreme Court. His name was paired with Indu Malhotra, the first woman lawyer to be recommended directly to the court. After three months, the government cleared Ms. Malhotra’s name and returned Justice Joseph’s name on the ground that “he was too junior among High Court judges to be elevated to the Supreme Court and his State — Kerala — is over-represented”. The government had returned Justice Joseph’s name on April 26, 2018 for reconsideration.

The issue of appointments in the higher judiciary has been a point of contention between the government and the judiciary. The government has time and again denied that the reason for its refusal to have Justice Joseph as a Supreme Court judge is his judgment quashing President’s rule in Uttarakhand. Can the government reject a judge’s elevation just because his verdict was not “palatable” to the executive, senior advocate Indira Jaising asked the Chief Justice’s Bench in open court?

On 16 July 2018, Supreme Court Collegium headed by CJI Dipak Misra reiterated the name of Justice K M Joseph for elevation to the Apex Court. The resolution by the collegium read that after careful consideration, the collegium did not find anything adverse regarding suitability of Joseph J. in the letters from the Law Minister & On 7 August 2018 finally he become Judge of Supreme Court of India.

Part 3 – Press Conference on 12.01.2018 by 4 Supreme Court Judges

A seven-page letter addressed to CJI Deepak Misra undersigned by the four judges is released to the media. Let the nation decide that: Justice J. Chelameswar on if the CJI should be impeached

There have been instances where case having far-reaching consequences for nation & the institution had been assigned by Chief Justice of this court selectively to benches ‘of their preference’ w/o rationale basis. This must be guarded against at all costs: SC judges

We are protesting against the manner in which CJI Dipak Misra has been allocating the cases to benches. The administration of the SC is not in order & many things which are less than desirable have happened in last few months and tried to intervene but to no avail, so we have to take this step of addressing the public: Justice Chelameshwar.

This was because politically sensitive cases have traditionally been assigned to the most senior judges of the court. Despite this, Dipak Misra, Chief Justice of India, assigned the Loya case to a junior member of the bench. This raised further allegations over the entire affair.

Loya travelled to Nagpur to attend a wedding of a colleague’s daughter on 30 November 2014. He stayed at Ravi Bhavan, a state government guest house in Nagpur. On the morning of 1 December 2014, at around 4 AM IST, he developed chest pain and was taken to two hospitals. He died at 6.15 AM of cardiac arrest. His body was taken to Latur by a family friend. Loya’s family claimed that they had seen blood stains on Loya’s shirt collar. Medical experts disagreed over whether this was a result of the post-mortem examination.

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Brijgopal Harkishan Loya (1966-2014) Aged only 47 was an Indian judge who served in a court in the Central Bureau of Investigation (CBI). He was presiding over the Sohrabuddin Sheikh case, after a previous judge, J. T. Utpat, was removed from the court. Unlike his predecessor, Loya allowed Amit Shah, the national leader of the Bharatiya Janata Party (BJP) who had been accused of ordering the murder of Sohrabuddin Sheikh, to be exempt from appearing at the court in person, until the framing of charges, except when Shah was already in the state of Maharashtra, where the case was being litigated. When Shah failed to attend a hearing on 31 October, even though he was in the same city, Loya ordered Shah’s lawyers to ensure that he would be present at hearings when he was in the state, and set the date of the next hearing to 15 December, when the verdict would be given. On 30 December 2014, Loya’s successor in the special CBI court, M. B. Gosavi, dismissed all charges against Shah in the Sohrabuddin Sheikh case, and ruled that he need not stand trial.

Justice Loya died in 2014, but the issue rose to limelight after Caravan Magazine published an interview with Loya’s family on 20 November 2017, in which they raised concerns over his death. Loya’s sister claimed that Justice Loya was under immense pressure from the then Chief Justice of the Bombay High Court, Mohit Shah. She even went on to allege that Justice Mohit Shah offered Justice Loya a 100crore bribe to give a favourable verdict. During a Press Conference, the Congress claimed that 2 other associates Shrikant Khandalkar & Prakash Thombre, with whom Justice Loya had shared the details of the case, died under mysterious circumstances as well.

A bench of the Supreme Court of India, headed by the Chief Justice Dipak Misra, on April 19, 2018, dismissed the public interest petition (PIL), and stated the death to be natural and such petitions to be an attack on the Judiciary.

Part 4 – Lawyer e.g. Kapil Sibal, Arun Jaitley, Lalu Yadav

Lalu Yadav

During the proceedings of the case on January 4, 2018 the CBI judge Shivpal Singhhad said “Laluji, we are getting a lot of references and calls for you”, Uttar Pradesh Chief Minister Yogi Adityanath has ordered probe over allegations that the district magistrate and sub-divisional magistrate of Jalaun called up CBI Special Judge Shivpal Singh to seek favours for RJD chief Lalu Prasad Yadav in the fodder scam case.

‘Modi playing some game’: Reacting to the judgement, RJD leader Raghuvansh Prasad Singh said: “There were four conspirators in the case and three including Mishra have been acquitted. This indicates that (Prime Minster) Narendra Modi is playing some game. We will appeal,”

Robbery on June 21, 2018 held at residence of Shivpal Singh, judge at Ranchi CBI special court, in his native village Jalaun last night. Shivpal Singh’s brother Surendra, who found out about the robbery in the morning said,’ Rs 60,000 &jewellery worth Rs 1.5-2 lakh stolen’. On October 08, 2018, escaped unhurt after a road accident in Ranchi. The former Special CBI Judge, who is now an Additional District Judge in Jharkhand’s Godda district, was driving towards Ranchi railway station to receive his daughter when he was hit by another car on October 08, 2018, The Maruti Alto car that hit the Judge’s vehicle (also an Alto), drove away after the accident.

Kapil Sibal

Ex Minister of Law and Justice – In office – 11/5/2013 – 26/5/2014

  1. Author has highlighted few cases represented by Kapil Sibal
    Subrata Sahara Roy in Sahara V/s SEBI 
  2. Manmohan Singh in the Coal Scam case against CBI
  3. Teesta Setavalad V/S GujGovt in Gulbarg Fund fudging Case
  4. Shraddha Scam appearing for the Trinamool Congress Govt. of West Bengal
  5. Sonia Gandhi  , Rahul Gandhi in National Herald Case 
  6. Kingfisher Airlines (Vijay Mallya) <Not paid Due of 372 Crore TDS taken from salaries but not paid to Govt. >

Arun Jaitley

Ex Minister of Law and Justice – In office – 29/7/2003 – 22/5/2004 & 7 /11/ 2000 – 1/7/2002

Jaitley did the paperwork for the investigations into the Bofors scandal. Jaitley has also appeared on behalf of giant multinational corporations such as PepsiCo against Coca-Cola and in various other cases in India. After having been the Minister of Law, Justice and Company Affairs, Jaitley represented Pepsi in 2002 in a case where the Supreme Court of India admonished and imposed stiff fines on 8 companies for painting advertisements on ecologically fragile rocks along the Manali-Rohtang road in the Himalayas. “The companies were also issued show-cause notices as to why exemplary damages should not be imposed on them for indulging in environmental vandalism”. In 2004, Jaitley appeared on behalf of Coca-Cola in a Rajasthan High Court case. He has stopped practising law since June 2009.