This is no longer a internal matter of the judiciary, now it is public matter. This is a historic event, Judiciary has been democratized, Judges don't fall from sky they are people of this country. The corrupt thieves don't like transparency.
@bonobashi @Hellfire
Loya Case the Tipping Point, Four SC Judges Say Democracy Is in Danger
By
The Wire Staff on
12/01/2018•
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“Democracy will not survive without a free judiciary.”
Left to right: Justices Kurian Joseph, Jasti Chelameswar, Ranjan Gogoi and Madan Lokur address the media at a news conference in New Delhi. Credit: Reuters
New Delhi: In an unprecedented move, four justices of the Supreme Court – the senior-most justices after the Chief Justice of India – decided to hold a press conference to talk about the issues plaguing the apex court,
triggered by issues surrounding a case on the death of special CBI Judge B.H. Loya and the roster of justices at the Supreme Court.
This is the first time in the history of the Supreme Court that something of this kind has happened. The press conference was held at the residence of Justice J. Chelameswar, and also addressed by Justices Ranjan Gogoi, Madan B. Lokur and Kurian Joseph. The press conference was held while the Supreme Court was in session and the day after two important appointments to the apex court were made.
On being asked repeatedly, the Justice Gogoi told journalists that the press conference was prompted by issues surrounding the death of special CBI Judge B.H. Loya.
Justice Chelameswar addressed the proceeding, calling it an
“extraordinary” event in the history of India and its judicial institutions.
“Sometimes, the administration of the Supreme Court is not in order. There are many things less than desirable that have happened in the last few months… As senior-most justices of the court, we have a responsibility to the nation and institution. We tried to persuade the CJI that some things are not in order and he needs to take remedial measures. Unfortunately, our efforts failed. We all believe that the SC must maintain its equanimity. Democracy will not survive without a free judiciary.”
Also read: Death of a Judge – What We Know, What We Don’t Know
“This morning we went to the CJI with a specific request but unfortunately we were denied,” Chelameswar continued.
“So we were left with no choice but to take it to the nation. We don’t want it to be said that we don’t care about the institution or the nation. About four months ago, all of us gave a signed letter to the CJI. We wanted a particular thing to be done in a particular manner. It was done, but it raised even more questions on the integrity of the institution. Inspite of four senior-most colleagues of the CJI going to him, there was no change.”
“We are discharging our duty to the nation by telling you what’s what,” Justice Gogoi added.
The justices also said that they were not engaging in politics.
The justices did not give any specifics on what they are seeking on what issues they raised. However, they said they would make the letter they submitted to the CJI available to the press at the event and said everything they wanted to say had been presented in that.
“There have been instances where case having far-reaching consequences for the Nation and
the institution had been assigned by the Chief Justice of this Court selectively to the benches “of their preference” without any rationale for this assignment. This must be guarded against at all costs (emphasis in original).”
“In that decision [on Karnan] (referred to in R.P. Luthra), two of us observed that there is a need to revisit the process of appointment of judges and to set up a mechanism for corrective measures other than impeachment. No observation was made by any of the seven learned judges with regard to the Memorandum of Procedure. Any issue with regard to the Memorandum of Procedure should be discussed in the Chief Justices’ Conference and by the Full Court. Such a matter of grave importance, if at all required to be taken on the judicial side, should be dealt with by none other than a Constitution Bench,” the letter continues.
Writing in the Indian Express on Friday, senior advocate and
former president of the Supreme Court Bar Association Dushyant Dave raised many of the same issues. His article also gave a list of cases where he thought the bench formed by the CJI was questionable. Dave wrote:
Even though empowered with the order of November 10, 2017, does the Chief Justice of India possess absolute and arbitrary powers to “constitute the Benches of the Court and allocate cases to the Benches so constituted”? Of course not. He is as much bound by the Rule of Law as anybody else. If there is one principle firmly rooted in our constitutionalism, it is: “Be you ever so high, law is above you.”
Yet, a little insight into the functioning of the Supreme Court today will reveal that the Chief Justice has been exercising his powers in an opaque manner. Several instances reflect that the Constitution Benches are constituted by including certain judges and excluding certain others. It is not my endeavour to criticise or attack any individual judge. But the fact remains that senior judges and even judges known for their proficiency in certain branches of law are excluded from such benches.
The four justices’ entire letter is reproduced below:
Dear Chief Justice,
It is with great anguish and concern that we have thought it proper to address this letter to you so as to highlight certain judicial orders passed by this Court which has adversely affected the overall functioning of the justice delivery system and the independence of the High Courts besides impacting the administrative functioning of the Office of the Hon’ble Chief Justice of India.
From the date of establishment of the three chartered High Courts of Calcutta, Bombay, and Madras, certain traditions and conventions in the judicial administration have been well established. The traditions were embraced by this Court which came into existence almost a century after the above mentioned chartered High Courts. These traditions have their roots in the anglo saxon jurisprudence and practice.
One of the well settled principles is that the Chief Justice is the master of the roster with a privilege to determine the roster, necessity in multi-numbered courts for an orderly transaction of business and appropriate arrangements with respect to matters with which member/bench of this Court (as the case may be) is required to deal with which case or class of cases is to be made. The convention of recognising the privilege of the Chief Justice to form the roster and assign cases to different numbers/benches of the Court is a convention devised for a disciplined and efficient transaction of business of the Court but not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues. It is too well settled in the jurisprudence of the country that the Chief Justice is only the first amongst the equals – nothing more or nothing less. In the matter of the determination of the roster there are well-settled and time honoured conventions guiding the Chief Justice, be it the conventions dealing with the strength of the bench which is required to deal with a particular case or the composition thereof.
A necessary corollary to the above mentioned principle is the members of any multi-numbered judicial body, including this court, would not arrogate to themselves the authority to deal with and pronounce upon matters which ought to be heard by appropriate benches, both composition wise with due regard to the roster fixed.
Any departures from the above two rules would not only lead to unpleasant and undesirable consequences of creating doubt in the body politic about the integrity of the institution. Not to talk about the chaos that would result from such departure.
We are sorry to say that off late the twin rules mentioned above have not been strictly adhered to. There have been instances where case having far-reaching consequences for the Nation and the institution had been assigned by the Chief Justices of this court selectively to the benches “of their preference” without any rationale basis for such assignment. This must be guarded against at all costs.
We are not mentioning details only to avoid embarrassing the institution but note that such departures have already damaged the image of this institution to some extent.
In the above context, we deem it proper to address you presently with regard to the order dated 27 October, 2017 in R.P Luthra vs Union of India to the effect that there should be no further delay in finalising the Memorandum of Procedure in the larger public interest. When the Memorandum of Procedure was the subject matter of a decision of Constitution Bench this Court in Supreme Court Advocates-on-Record Association and Anr. Vs. Union of India [(2016) 5 SCC 1] it is difficult to understand as to how any other Bench could have dealt with the matter.
The above part, subsequent to the decision of Constitution Bench, detailed discussions were held by the Collegium of five judges (including yourself) and the Memorandum of Procedure was finalised and sent by the then Hon’ble the Chief Justice of India to the Government of India in March 2017. The Government of India has not responded to the communication and in view of this silence, it must be taken that the Memorandum of Procedure as finalised by the Collegium has been accepted by the Government of India on the basis of the order of this Court in Supreme Court Advocates-on-Record Association (Supra). There was, therefore, no occasion for the Bench to make any observation with regard to the finalisation of the Memorandum of Procedure or that that issue cannot linger on for an indefinite period.
On 4 July, 2017, a Bench of seven Judges of this Court decided In Re. Hon’ble Shri Justice C.S. Karnan [(2017) 1 SCC 1]. In that decision (referred to in R.P.Luthra), two of us observed that there is a need to revisit the process of appointment of judges and to set up a mechanism for corrective measures other than impeachment. No observation was made by any of the seven learned judges with regard to the memorandum of procedure.
Any issue with regard to the Memorandum of Procedure should be discussed in the Chief Justices Conference and by the full court. Such a matter of grave importance if at all required to be taken on the judicial side should be dealt with by none other than a Constitution bench.
The above development must be viewed with serious concern. The Hon’ble Chief Justice of India is duty bound to rectify the situation and take appropriate remedial measures after a full discussion with the other members of the Collegium and at a later stage, if required, with other Hon’ble Judges of this court.
Once the order arising from the issue dated 27 October, 2017 in R.P. Luthra vs. Union of India mentioned above, is adequately addressed by you and if it becomes so unnecessary we will apprise you specifically of the other judicial orders passed by this Court which would require to be similarly dealt with.
With kind regards,
CHELAMESWAR
RANJAN GOGOI
MADAN B. LOKUR
KURIAN JOSEPH
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Death of a Judge: What We Know, What We Don’t Know
By
The Wire Staff on
12/01/2018•
9 Comments
Three years later, with claims and counter-claims piling up, the son’s plea for an independent investigation might well be the only way to settle this matter.
Left: Judge Loya and, Right: The ECG report dated November 30, 2014, one day before the judge was brought to Dande hospital. Courtesy: Caravan/Indian Express
Note: This article was first published on November 27, 2017, and is being republished in light of historic press conference by four senior Supreme Court judges triggered by the bench formed in the Judge Loya death case and other cases.
New Delhi: Citing the statements of two judges of the Bombay high court and enquiries by its own reporters, the
Indian Express on Monday said that there was “nothing suspicious” about the death three years ago of Judge B.H. Loya, who was presiding over the CBI court in the Sohrabuddin Sheikh fake encounter case.
In two reports last week, the
Caravan had quoted immediate members of Loya’s family, who questioned the
circumstances surrounding his death and said that the judge had been
offered Rs 100 crore to give an order favourable to the prime accused, BJP president Amit Shah. The judge passed away on December 1, 2014 after a heart attack while in Nagpur to attend a colleague’s daughter’s wedding. In interviews to the magazine’s reporter, Niranjan Takle, members of Loya’s family listed what they said were inconsistencies in the facts surrounding his death.
Questioning the
Caravan’s account, however, the
Indian Express has said that Justice Bhushan Gavai and Justice Sunil Shukre – “who were there at the hospital when Loya died” – told its reporters that there was nothing suspicious about the judge’s death.
The
Indian Express has also questioned some of the claims made in the
Caravan report, citing official records and doctors who attended to Loya.
Speaking to
The Wire,
Caravan political editor Hartosh Singh Bal questioned how the judges quoted by
Indian Express suddenly entered the picture. “These judges were not quoted in any other report. They were not with Loya at the guest house or the first hospital. They were not the first judges on the scene. How did the
Indian Express reporter suddenly come across them? Did the reporter find them or did they contact the reporter? If they contacted the reporter, why did they not hold a press conference instead?”
It would be jumping the gun, however, to assume that all the apparent questions around the judge’s death have now been resolved. Here’s a list of seven discrepancies that have emerged from the media reports, and the questions that still remain.
1. Loya experiences chest pain. How did he get to hospital?
According to the
Indian Express, Loya, who was staying at the Ravi Bhavan VIP guest house in Nagpur at the time, complained of chest pain at around 4 am. With Loya were his fellow judges Shridhar Kulkarni and Shriram Madhusudan Modak, Justice Gavai told the newspaper. According to Justice Shukre, Vijaykumar Barde, a local judge, drove Loya to Dande Hospital in his own car. Justice Gavai said there was another car too which accompanied them, which belonged to Rupesh Rathi, at the time the deputy registrar of the Nagpur bench of the high court.
The
Caravan report, however, stated that Loya was taken to Dande Hospital in an auto – or so his family was apparently told. The family, particularly Loya’s sister Anuradha Biyani, questioned why he had to be taken to hospital that way, particularly when the auto stand closest to the guest house is two kms away. The
Caravan story does not say who was Biyani’s source.
In its follow-up investigation,
NDTV spoke to staff members at the guest house on condition of anonymity. “At Ravi Bhawan, staff members who were present at the time and wished to remain unnamed told NDTV that there are no designated drivers in Ravi Bhawan, and Loya did not appear to have a car specially assigned to him for the trip either,” the channel reported.
It is not clear if the staff NDTV spoke to were thus confirming Loya went to the hospital by auto or were simply answering in the abstract. Either way, if indeed Loya was driven to hospital that fateful night, that fact seems not to have registered in their mind.
Google Maps shows Dande hospital to be a six minute drive away. Given that Loya is said to have arrived there “around 4:45 or 5:00 am”, the vehicle that apparently took him would have left the guest house around 4:40-4:55, a full 40-55 minutes after Loya first complained of acute chest pain. Why the VIP guest house staff could not arrange a vehicle any sooner is not clear.
2. At Dande hospital, ECG or no ECG?
According to the
Caravan report, which is based on what his family was later told, no ECG was performed at Dande Hospital as the machine was not working. Loya was instead given some medicines there and then shifted to another private hospital, Meditrina. In an interview to
The Wire, Bal of the
Caravan said the reporter went by what the family had been told.
The
Indian Express, however, claims that an ECG was performed at Dande Hospital and the newspaper reproduced a copy of the report. The newspaper quoted the director of the hospital, Pinak Dande, as saying that the ECG revealed that Loya needed specialised cardiac treatment, which was not available at the hospital.
The ECG. Credit:
Indian Express
Curiously, the ECG published by the
Indian Express is time-stamped “05:11, November 30”, i.e. a day before Loya was taken to hospital. The newspaper does not explain the reason for the wrong date – given the role ECGs play in helping doctors review a patient’s case history, it is unusual for the date to be off . The judge’s name is also spelt incorrectly on the ECG report.
After the discrepancy attracted widespread criticism on social media, the
Indian Express sought an explanation from the hospital about why the date of the ECG was wrong. This is what the hospital’s administrator said:
“The date November 30 appearing on the ECG may have been due to a technical glitch arising out of a machine calibration issue. We recalibrate our machines every three months or so to prevent such glitches. But sometimes the glitch may occur in the intervening period. We stand by the fact that the ECG was taken at our hospital on December 1.”
3. Declared dead at Meditrina hospital
Both the
Caravan and the
Indian Express reports agree that when Loya was subsequently taken to Meditrina – a larger private hospital in Nagpur – where he was declared dead on arrival. Meditrina records quoted by the
Express say that the judge suffered “retrosternal chest pain and had collapsed” en route, and attempts to resuscitate him at the hospital failed.
It was at Meditrina, according to the
Indian Express, that other the high court judges, including Shukre and Gavai, arrived. Shukre told the newspaper Loya was in the ICU when they arrived and “All attempts were made to save his life but to no avail. Doctors did their best and the judges’ community did their best to help”.
4. Time of death
According to the
Indian Express report, the Meditrina hospital authorities declared Loya dead a little after 6 am. The
Caravan notes that the official time of Loya’s death is recorded as 6:15 am. However, family members told
Caravan that they began receiving telephone calls at around 5 am from Barde – the judge who according to
Indian Express had been with Loya since he left Ravi Bhavan – informing them that Loya had died and that they should rush from Latur to Nagpur:
Sarita Mandhane, another of Loya’s sisters, who runs a tuition centre in Aurangabad and was visiting Latur at the time, told [Caravan] that she received a call from Barde at around 5 am, informing her that Loya had died. “He said that Brij has passed away in Nagpur and asked us to rush to Nagpur,” she said.
Before they could leave for Nagpur, though, another person Ishwar Baheti – described by Loya’s sister Anuradha Biyani as an “RSS worker” – somehow located them. Baheti told them that he had been talking to people in Nagpur and there was no reason for them to go as the body was already been brought to Gategaon, Loya’s sister Sarita Mandhane told
Caravan. The
Indian Express report made no reference to Baheti, or the calls the family received in the morning. Though Baheti appears as a mysterious person in the Caravan account,
NDTV’s report says he was a family friend and was known to Loya and some of his relatives.
So far, however, neither Barde nor Baheti has spoken to the media to clear up some of the questions and doubts raised by Loya’s family. Though
Caravan quoted Sarita Mandhane as saying she was informed by Barde of her brother’s death at 5 am, the magazine does not appear to have asked Barde about the timing of his call.
5. Post mortem and after
Apart from Sarita Mandhane, who says she received word of Loya’s death at 5 am, other family members quoted in the
Caravan report say they were informed about Loya’s death
after the post mortem had already been conducted. The post-mortem report – which said that the death was caused by cardiac arrest – was signed apparently by a paternal cousin of Loya’s, but his father told the magazine that he had no such relative in Nagpur at the time.
Both NDTV and the
Indian Express have tracked down the person who signed the post mortem report – one Prashant Rathi, who is a doctor. Rathi collected the body. Rathi said that an uncle (‘
mausa‘) of his, Rukmesh Pannalal Jakotia, called him in the morning and told him that his (the uncle’s) cousin (Loya) was in hospital and that Rathi should go and help him. Apparently when Rathi arrived at the hospital and told Jakotia that Loya had died, his uncle asked him to take care of the formalities, and so he agreed to sign off on the post mortem when doctors asked.
What is not clear from the
Indian Express report is how Rathi’s uncle learned of Loya’s condition when his immediate family (other than one sister) had not been informed, nor how the government hospital which conducted the post-mortem satisfied itself that Rathi was indeed aclose relative and that the body could be released to him without even talking to any of Loya’s close family members.
6. Blood on the judge’s clothes
The
Caravan had quoted Loya’s sister Biyani as saying that the family found blood stains on the judge’s shirt, on the neck and at the back. Other family members also said they saw there was an injury on his head:
A diary entry by Biyani from the time reads, “There was blood on his collar. His belt was twisted in the opposite direction, and the pant clip is broken. Even my uncle feels that this is suspicious.” Harkishan [Loya’s father] told [Caravan], “There were bloodstains on the clothes.” Mandhane said that she, too, saw “blood on the neck.” She said that “there was blood and an injury on his head … on the back side,” and that “his shirt had blood spots.” Harkishan said, “His shirt had blood on it from his left shoulder to his waist.”
The
Indian Express quoted a government forensic expert, who said that “Blood is bound to spill out during post-mortem as we open all major cavities in the body. Sometimes, if small gaps remain in the sutures, blood might seep out.”
Rathi – the ‘relative’ who signed the post-mortem – told the
Indian Express that Loya’s body was wrapped in a sheet when he took custody and presumably that is the state in which it was loaded on to the ambulance for transport back to his father’s village. Though
Caravan‘s story does not describe what the body was covered in when it was received by his family members at Gategaon and creates the impression that it was fully clothed, Vinod Jose, editor of the magazine, told
The Wire that Loya’s body came wrapped in a sheet and that his clothes were in a packet. Any blood that might have spilt out “during post-mortem” would not have been on his clothes which had already been removed and packed. In other words, the apprehension is that the blood stains in Loya’s shirt might be ante-mortem.
7. Transporting the body
According to Biyani, quoted in the
Caravan report, Loya’s body was transported unaccompanied, except for the ambulance driver. Neither Barde nor the two judges whom he was travelling with in Nagpur accompanied him, she alleged.
However, according to the
Indian Express and Justice Gavai, two judges did accompany Loya’s body. “The two judges were Yogesh Rahangdale and Swayam Chopda, both civil judges, junior division. An air-conditioned ambulance was arranged with provision of ice slabs in case the AC failed along the way,” the newspaper quoted Gavai as saying. The report also said that the two judges met Loya’s father in Gategaon. NDTV also reported something similar:
Shivaji Bhokde the joint commissioner of Nagpur police told NDTV that two judiciary officials, and a police constable were inside the ambulance with the driver on the 10-and-a-half hour drive to Latur.
According to Justice Gavai, the two judiciary officials and the constable – whose name he also remembered three years later – were not inside the ambulance but travelling in a separate car. “The car developed a snag a little beyond Nanded,” Justice Gavai told the
Indian Express. “When the ambulance reached Latur, fellow judges were present to receive it. The two accompanying judges reached late along with the constable Prashant Tulsiram Thakre.
8. Other issues that remain
Bribery claims: The allegation by Loya’s relatives that the judge had been offered a bribe by the former chief justice of the Bombay high court remain unaddressed so far, and the chief justice in question has chosen not to speak on the matter.
Telephone data: Loya’s relatives also told Caravan that his phone was only returned to them 2-3 days after his death and that the data appeared to have been deleted.
Silence of wife and son: Caravan said Loya’s wife and son “feared for their lives” and hence declined to speak to their reporter. But the magazine did carry details of the letter written by the son to the chief justice of the Bombay high court asking for his father’s death to be probed.
Three years later, with claims and counter-claims over the controversial case piling up, the son’s plea for an independent investigation might well be the only way to settle this matter one way or another.
Death of a Judge: What We Know, What We Don't Know - The Wire
District courts: 2.81 crore cases pending, 5,000 judges short across India
The situation has led to suggestions in two Supreme Court reports to increase the judicial manpower, at least seven times, to overcome the crisis by appointing about 15,000 more judges in the coming few years.
http://indianexpress.com/article/india/district-courts-2-81-crore-cases-pending-5000-judges-short-across-india-4475043/ --link
Here government is trying to interfere with judiciary by introducing NJAC, now they are saying that they don't want to interfere with judiciary.
NJAC vs collegium: the debate decoded
October 16, 2015 08:56 IST
Updated:September 23, 2017 12:49 IST
The Supreme Court rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment which sought to give politicians and civil society a final say in the appointment of judges to the highest courts. Here is what you need to know about the row:
What is the NJAC?
The National Judicial Appointments Commission (NJAC) is a constitutional body proposed to replace the present Collegium system of appointing judges.
What is the Collegium system?
The Collegium system is one where the Chief Justice of India and a forum of four senior-most judges of the Supreme Court recommend appointments and transfers of judges. However, it has no place in the Indian Constitution. The system was evolved through Supreme Court judgments in the
>Three Judges Cases (October 28, 1998)
Why is Collegium system being criticised?
The
>Central government has criticised it saying it has created an imperium in imperio (empire within an empire) within the Supreme Court.
The Supreme Court Bar Association has blamed it for creating a “give-and-take” culture, creating a rift between the haves and have-nots.
>“While politicians and actors get instant relief from courts, the common man struggles for years for justice.”
How and when was the NJAC established?
The NJAC was established by amending the Constitution [Constitution (Ninety-Ninth Amendment) Act, 2014] passed by the Lok Sabha on August 13, 2014 and by the Rajya Sabha on August 14 2014. Alongside, the Parliament also passed the National Judicial Appointments Commission Act, 2014, to regulate the NJAC’s functions. Both Bills were ratified by 16 of the State legislatures and the President gave his assent on December 31, 2014. The NJAC Act and the Constitutional Amendment Act came into force from April 13, 2015.
Who will be in the NJAC?
It will consist of six people — the Chief Justice of India, the two most senior judges of the Supreme Court, the Law Minister, and two ‘eminent persons’. These eminent persons are to be nominated for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha, and are not eligible for re-nomination.
If politicians are involved, what about judicial independence?
The judiciary representatives in the NJAC -- the Chief Justice and two senior-most judges –
>can veto any name proposed for appointment to a judicial post if they do not approve of it. Once a proposal is vetoed, it cannot be revived. At the same time, the judges require the support of other members of the commission to get a name through.
http://www.thehindu.com/specials/in-depth/njac-vs-collegium-the-debate-decoded/article10050997.ece
http://www.thehindu.com/news/national/supreme-court-verdict-on-njac-and-collegium-system/article7769266.ece -- link
Soli Sorabjee is totally exposed and thrashed, India today show
