SC in Review 2019 – Panel 2 Long Brief

Panel 2: Supreme Court Reform

Panellists:

• Apurva Vishwanath, Journalist, Indian Express
• Suhrith Parthasarathy, Advocate, Madras High Court
• Vakasha Sachdev, Associate Editor (Legal), The Quint
• Venkatesh Nayak, Coordinator, Access to Information, Commonwealth Human Rights Initiative

The Court was confronted with multiple challenges to its institutional practices in 2019. In November, the Court interpreted the applicability of Right to Information (RTI) requests in relation to itself broadly. Questions related to judicial appointments also cropped up, with the delay in the appointment of Justice Akil Kureshi being challenged by the Gujarat High Court Advocates’ Association.

There was also the issue surrounding the propriety of Justice Arun Mishra serving on the Constitution Bench set up to decide the Land Acquisition matters. Another issue which reared its head was the Court’s repeated directions to submit evidence in sealed covers. This was criticized as being detrimental to the principles of natural justice and taking away transparency in the decision making process. In 2019, on the institutional front, the Court also faced criticism for the way in which it handled the sexual harassment allegations against CJI.

With increased demands for transparency in the appointment process, roster management, and evidence taking in 2019, the Court met with multiple challenges to its institutional practices.

Elevation of Justice Akil Kureshi: After his appointment as a judge of the Gujarat High Court in 2004, Justice Akil Kureshi served in the Gujarat High Court till November 2018, when he was transferred to the Bombay High Court. On May 10th 2019, the Supreme Court collegium recommended his appointment as Chief Justice of the Madhya Pradesh High Court. At the same time, the collegium recommended three other judges for appointment to the offices of Chief Justice of the Telangana, Himachal Pradesh and Delhi High Courts.

On May 22nd, the Union Government issued notifications appointing all of the Collegium’s May 10th recommendations, except Justice Kureshi’s. Furthermore, on 5 June, it appointed Justice Ravi Shanker Jha as the Acting Chief Justice of the Madhya Pradesh High Court.

On July 3rd, the Gujarat High Court Advocates Association (GHCAA) filed a petition before the Supreme Court requesting the court to direct the Union government to appoint Justice Kureshi as the Madhya Pradesh Chief Justice. It also prayed the Court to direct that the Union must conduct the process of reviewing all future recommendations within six weeks.

The GHCAA contended that the Union was deliberately withholding its response to the collegium’s recommendation for political reasons, in violation of the Memorandum of Procedure (MoP) and Article 217 of the Constitution.

On July 22nd, the Union government stated that Justice Kureshi’s appointment was under consideration. It sought an additional two weeks to respond. Finally, on August 28th Chief Justice Gogoi stated he had received a reply from the Department of Justice. The Chief Justice directed the matter to be listed after the Collegium had responded to Department of Justice’s reply.

On September 5th, the Collegium recommended Justice Kureshi as the Chief Justice of the Tripura High Court, taking into consideration the Department of Justice’s reply. In early November, the Union notified the appointment. Finally, on November 13th, the Supreme Court disposed of the case after taking note that the Union has notified the appointment.

2019 also saw the Supreme Court discontinue its 2-year old practice of providing reasons for appointments to the higher judiciary. While the RTI judgment is expected to provide a viable tool to access the deliberations behind judicial appointments, the Court’s actions indicate that it may not necessarily make these details available on its own accord.

Land Acquisition – Recusal: On March 15th, 2019 the Supreme Court formed a Constitution Bench to reconcile two conflicting 3-judge Bench decisions dealing with lapsing of land acquisitions under the 2013 Land Acquisition Act. The matter was not taken up for a while and on October 12th 2019, the court listed the matter before a new Constitution Bench (CB) comprising Justices Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and Ravindra Bhat.

Some of the parties though objected to the presence of Justice Arun Mishra on the Bench. The objection was grounded on the fact that the reference to CB was necessitated by the conflicting views of two Division Benches on Section 24(2) of the 2013 Land Acquisition Act, one of which was presided over by Justice Mishra. Those who sought for Justice Mishra’s recusal submitted that he had previously delivered an elaborate judgment answering most of the issues before the CB. This would give a reasonable person the impression that Justice Mishra was predisposed to the questions placed before the CB, it was argued.

The Bench though rejected the request for recusal. The lead opinion was delivered by Justice Arun Mishra himself. The four other judges on the Bench delivered a joint concurring opinion. Justice Mishra relied on two grounds for the rejection of the application: (i) past instances where similar appointments have been made, (ii) practical difficulties of recusing when legal predisposition is alleged.

Rest of the Bench deferred to Justice Mishra’s decision on the ground that in an application for recusal, the opinion of the judge whose recusal has been sought should prevail.

The decision brought to limelight the discretionary power of the Chief Justice who, as the Master of the Roster, enjoys wide discretion on the allocation of cases. It led to calls for devising a system which will eliminate discretion and ensure allocation on a random basis.

RTI and Judicial Independence: In 2019, the Supreme Court heard appeals to three orders of the Central Information Commission (CIC) under the RTI Act. The orders had directed the Central Public Information Officer (CPIO) of the Supreme Court to divulge certain information regarding Collegium decisions, disclosure of personal assets of judges to the CJI, and specific correspondences of the CJI in relation to the approach of a Union Minister to influence a judicial decision.

The Supreme Court’s CPIO appealed the first and third CIC orders directly to the Supreme Court. However, the second order was appealed to the Delhi High Court first. In 2009, a single-judge, Justice Ravindra Bhat, upheld this CIC order. This was then appealed to a Division Bench of the High Court, only for a three-judge Bench led by the Chief Justice of the High Court to again uphold the CIC order. The case was then appealed to the Supreme Court.

On November 13th 2019, the Supreme Court held that judicial independence does not stand in contradiction with the need for transparency. It observed that whether or not information is subject to public disclosure must be decided on a case-to-case basis, by weighing competing public interest claims.

The majority opinion offered no general finding on whether Collegium decision-making, personal asset disclosures and the correspondences of the CJI are universally subject to RTI disclosures. However, it held that transparency can be in the interest of judicial independence. It also held that concerns about the ‘free and frank expression’ of Collegium members are alone not sufficient to bar information disclosure. In effect, the judgment allows RTI requests to be decided on a case-by-case basis, under the discretion of the CPIO or the ‘competent authority’ (Chief Justice of Supreme Court) depending on the request.

The decision potentially paves the way for greater scrutiny of the Court’s institutional practices and correspondences. Nevertheless, given the caveats provided in the judgment itself – assessment of requests on a case by case basis, balancing of privacy interests etc. – it is not yet clear as to how much the decision will translate to voluntary disclosure.