New Delhi, Jan 20 (IANS) There is a “pattern” in the allocation of cases in the Supreme Court, senior counsel Dushyant Dave has said, terming it as “very unfortunate”, where despite computerisation successive Chief Justices were “still able to allocate matters selectively”.
Dave described the entire exercise as “not just arbitrary but unfortunate, dishonest and deserves to be condemned”.
In an interview with online portal DailyO, Dave said the issues casting their shadow on the Supreme Court in the wake of the four judges going public are nothing new and were affecting the functioning of the top for the last decade and a half with successive Chief Justices perpetuating them.
There was no quick fix solution of these issues and it would take a long time before they are settled. “This is not going to be resolved so quickly. Results will not be instant like instant coffee or Maggie noodles. It will take a long time” and will be a painful process,” Dave said.
Recalling the sequence of events involving the Lucknow-based medical college scam, Dave was critical of the manner in which the five-judge bench headed by Chief Justice Dipak Misra overturned the decision of the bench headed by Justice J. Chelameswar to hear the plea by lawyer Kamini Jaiswal seeking a court monitored SIT probe into the allegations graft.
“We genuinely believed that CJI was incapable of touching that case both administratively and judicially” as a FIR was directly in respect of a matter that was dealt with by the bench headed by him, he said. Asserting that the matter required “serious consideration”, Dave said the manner in which matter was dealt with was completely wrong and “missed the opportunity” to correct the course of events.
He described as a “great mystery” that the FIR in the case of the Lucknow medical college was filed just a day after the bench headed by CJI dealt with the matter.
On the role of the Supreme Court Bar Association (SCBA) in the entire situation, Dave said that it was “orchestrated between the CJI and the SCBA leaders. There was an atmosphere of tyranny in the court room”.
Referring to the “pattern” in which the Chief Justices over the last 10 to 15 years have acted, Dave regretted that “nobody wants to speak” and these included “people (eminent lawyers) with all India acceptability … whom we in our college days looked upon with awe… they were like demi-Gods”.
“Of course there is a pattern,” Dave said, and pointed to the allocation of not only “politically sensitive matters” but also “concerning the rich and powerful”. He described the entire system as “very unfortunate”.
“Chief Justice is trying to use them (judges) …No doubt they will realise it,” he said, sounding optimistic.
The Chief Justice, Dave said can exercise his powers as a master of rolls only when a judge recuses from hearing a matter and the matter is referred to him for allocation to another bench. He said the present practice was like “changing the composition of benches like musical chairs”. Dave said that bench should be for fixed duration with cases they have to deal with.
In a dig at former CJI J.S. Khehar on the composition of five judge bench to hear the Ayodhya title suit matter, Dave said both Justice Ashok Bhushan and Justice S. Abdul Nazeer are judges of a impeccable integrity but to hear an important matter like Ayodhya, the bench should have had the senior most judges of the court.
“I regret the way the bench was constituted was unfair,” Dave said pointing out that “Justice Khehar constituted the bench he liked or for convenience”. Describing the Ayodhya matter as significant, Dave said, “It is an important matter and needs to be heard in a dispassionate manner. I regret the way the bench was constituted was unfair… Judgment of the Supreme Court should be such that is acceptable to both the parties and the entire country.”
“He (Chief Justice Dipak Misra) still has the opportunity to do something to instill the confidence in both the parties,” said Dave.
He wondered how after twice rejecting the plea of Dr. Subramanian Swamy, in July Justice Khehar decided to hear the matter and constituted a five-judge bench. He referred to the late Chief Justice of India J.S. Verma saying that the matter relating to the acquisition of land around the disputed site was the most serious matter that the Supreme Court had ever dealt with.
Coming to the appointment of the judges, Dave said that he has been critical of the collegium system as it has “produced as many rotten apples as one can count” of course some distinguished ones also. “The abuse that Law Minister was doing (prior to collegium system before 1992 in the appointment of judges), that is now done by the CJIs,” he contended.
He advocated a National Judicial Appointments Commission (NJAC) with transparency, with independent people besides judges and government representatives. He said the decisions of the NJAC could be challenged before the High Court or the Supreme Court but that was not the case in the collegium system.