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Order, Order, Order!

It isn’t the most melodious of noises as judges pick faults

Order, Order, Order!
Jitender Gupta, Tribhuvan Tiwari
Order, Order, Order!
outlookindia.com
-0001-11-30T00:00:00+0553

Justice Kabir’s Trouble Spots

  • Allegedly denied Justice Bhattacharya an SC spot
  • Questions over giving Sahara time to pay SEBI
  • Leakage of NEET judgement alleged
  • Relief granted to Jayprakash Associates, which was fined by HC
  • Heard a 2G case which was being monitored by another bench

***

Prashant Bhushan, Senior advocate, activist:

“There was information that a copy of the judgement in the NEET case was with the private medical colleges.”

M.N. Krishnamani, President, SC Bar Assn:

“As the leader of the SC Bar, I had requested Justice Kabir not to hear the Sahara case as another bench was doing so.”

Manoj Goel, Advocate, SC:

“In the NEET case, there was a compelling reason to look at the right to life, which includes the right to quality healthcare.”

 

CJI Sathasivam’s Take:
(Jury is out on whether the CJI indeed made an observation regarding the Jayprakash case)

“We don’t approve of the manner in which some interim orders came to be passed. We do not sit on appeal over orders passed by a coordinate bench.”

***

If judges speak, it is said, they must do so through their judgements. They are also expected to stay away from controversy. Of late, though, judges of our higher courts are having to speak up to explain themselves and their judgements, and navigate through controversies in the face of allegations of the kind unheard of bef­ore. The latest having to do this is Jus­tice Altamas Kabir, former chief jus­t­ice of India (CJI), who retired on July 18. Some of his orders have perhaps been scrutinised in a way no other CJI’s have.

One of the important judgements about which questions are being asked is the one that said private medical colleges need not put applicants through the National Eligibility-cum-Entrance Test (NEET), conducted by the Medical Council of India (MCI). This meant that the colleges could either have their own tests—no need to adhere to standards—or admit students without them. Quality of input be damned. The shocking part was allegations that the judgement was already available to the medical colleges and on the internet even before it was delivered. Justice Kabir has denied any leak. But that’s not the only case in which he is having to defend himself: in the acrimonious Sahara-SEBI case, his judgement gave the company an extension to pay a second round of instalments for the securities controller to return to depositors; another judgement appeared to give relief to Jayprakash Associates, which had been fined by the Himachal Pradesh High Court for violating pollution laws. Justice Kabir has also been criticised for taking over matters from brother judges’ benches.

In the NEET case, says senior advocate and activist Prashant Bhushan, “there was verifiable information that a copy of the NEET judgement was with the private medical colleges”. In a TV interview, Justice Kabir has said Bhushan owes him an apology. It’s not the first time Bhushan has entangled himself with Kabir. In the 2G scam matter and a case pertaining to gutka manufacturers, the two have had heated exchanges.

The NEET judgement per se is also being questioned—not just its leakage. Lawyers like Manoj Goel say it does not consider the implications on society:  “There’s an equally compelling reason to look at not only the right to profess any profession but also the right to life and liberty, which includes the right to quality public healthcare.” Shouldn’t the court have insisted on setting some minimum standards before one qualifies to study to become a doctor, critics of the judgement are asking. Goel says he is also worried that, in this case, it was the private medical colleges that presented themselves as an aggrieved party. Most of all, he says, Justice Kabir’s order overlooks an earlier Supreme Court judgement of 2003, which had prescribed a common entrance exam for medical admission—surely, much thought would have gone into that.

The shroud over appointment of judges, their judgements has been rent by slugfests. It does not look pretty at all.

Matters came to an embarrassing head for Justice Kabir when the present CJI, Justice P. Sathashivam, was quoted in the media as saying his bench disapproved of the manner in which the interim order on the Jayprakash case was passed. But this is not the first time that incoming chief justices and their immediate predecessors have locked horns. Before  Justice Kabir, former CJI Justice S.H.  Kapadia had found himself at the centre of controversy for standing in the way of a judge who would have joined the Supreme Court but was denied the opportunity to do so. Justice Kapadia had also run into controversy over the Supreme Court decision in the Vodafone case, in which the court’s order was seen as favouring a foreign enterprise. And before Kapadia, Justice K.G. Balakrishnan had found himself in the middle of embarrassment after a division bench of the Madras High Court, in 2010, suspended a lawyer for attempting to influence a judge by claiming proximity to then cabinet minister A. Raja. When this was brought to the attention of Justice Balakrishnan in a letter, he had denied the minister’s name was ever mentioned—but a press note from the former Madras High Court chief justice contradicted him.

And when former Chief Justice Bhaskar Bhattacharya of the Gujarat High Court alleged it was because of Justice Kabir that he was not being elevated to the Supreme Court, it reignited memories of another controversy: Chief Justice A.P. Shah of the Delhi High Court had been denied an opportunity to serve the highest court because of an alleged bias on part of then CJI Kapadia. In the case of Bhattacharya, a letter written by him revealed the possible reason for his non-elevation: he had objected to the elevation of Justice Kabir’s sister to the Calcutta High Court. But in the case of Justice Shah there is nothing on record to suggest what could have been the reason.

Animus between judges, even if they belong to the highest court of the land, is not something that began with Justice Kabir; it certainly does not look as if it will end with his tenure. But, in a way, lawyers say, it is good that matters are coming out in the public domain. For years, the appointment of judges through a collegium or the judgements arrived at by them have enjoyed opacity. A slugfest,  to that extent, is a welcome sign.

Senior advocate M.N. Krishnamani,  president of the Supreme Court Bar Association, says, “The collegium system of appointment has failed, with judges promoting each other. It is unfortunate that the judiciary, in whom everyone trusts, is cloaked in such secrecy when it comes to appointing judges.” Though the Supreme Court had itself laid down that the observations of the judges in the collegium should be in writing, seldom is the practice followed. Incidentally, Kris­hnamani too had requested Justice Kabir to not hear the Sahara matter. “As the leader of the Bar, I requested Justice Kabir to not hear the matter as another bench was hearing the matter,” he says. But Justice Kabir, in his wisdom, had exercised his prerogative.

Despite repeated calls, Justice Kabir was unavailable for comment. He did issue a press release clarifying his position. However, the controversy that surrounds Kabir once again has turned an unseemly spotlight on the happenings in the most hallowed court of all—the Supreme Court of India.


By Anuradha Raman in Delhi

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