'Super sensitive' cases being given to junior SC judges for last 20 years

NEW DELHI: The dramatic press conference by four senior-most Supreme Court judges+ to allege that sensitive and important cases were being assigned to "select benches" headed by junior SC judges in the last few months — a charge intended to target Chief Justice Dipak Misra — appears contrary to the way such cases have been allotted in the last 20 years.

TOI tracked 15 'super sensitive cases of national importance' in the last two decades, including those relating to Bofors, Rajiv Gandhi assassination, L K Advani's trial in Babri masjid demolition, Sohrabuddin Sheikh fake encounter, Best Bakery and the case that changed how BCCI is run. All of them have one thing in common — they were assigned by the then CJIs, not to any of the four senior-most judges of the SC but to 'select benches' headed by junior judges.

There is little evidence to suggest that seniority of judges is a criterion for allocation of cases as was suggested by the quartet of Justices J Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph in their letter to the CJI+ . The manner in which successive CJIs have assigned cases points to a more random selection of benches. Though the dissenting judges did not mention particular cases, apart from confirming that the case of Judge B H Loya+ was one, the view that "less senior" benches are not as competent does not seem to have cut ice with past CJIs.

Some legal experts have also argued that the argument raised by the seniors casts a shadow over the independence of other benches and this requires some supportive evidence. Other opinion has held that there is merit in the charges of 'bench fixing' levelled by the senior judges and requires a response by the CJI who has held that the roster is his domain as has been the case in the past. Those who disagree with the rebel judges point out that the suggestion that an effort to discreetly "help" the government in cases that might embarrass it needs to be backed up or could be seen as a means to pressure benches hearing various cases.

The petition challenging the validity of Aadhaar was the only exception to the general rule as it was assigned to court number 5, headed by Justice B S Chauhan. Still the judges with seniority at two, three and four could harbour a grievance why it was not assigned to them by the CJI.

The first of the important cases tracked by TOI relates to appeals filed in 1998 by Nalini and others challenging their conviction and death sentence in the Rajiv Gandhi assassination case. At that point of time, it was the most high profile case in the country. But the then CJI assigned it to three junior judges — K T Thomas, D P Wadhawa and S S M Qadri who sat in courts much farther than those headed by the fifth senior-most SC judge. No questions were raised over the selection.

In 1999, the CBI filed a new chargesheet in the Bofors case, making stunning allegations. NRI industrialist brothers Srichand and Gopichand Hinduja were made accused. The trial court refused bail. When they came to the SC seeking bail, the then CJI assigned it to court number 8, headed by junior judge M B Shah. They got bail by putting Rs 15 crore bonds. This was not regarded as 'bench fixing' by the then CJI.

Advocate Lily Thomas filed a writ petition in 2005 seeking disqualification of MPs and MLAs upon their conviction and sentence for two or more years. Elected representatives were used to holding on to their memberships in Parliament and assemblies by filing an appeal. This game changing petition was assigned by the then CJI to court number 9, which was headed by Justice A K Patnaik, then a junior judge.

The Best Bakery case came to the SC in 2004 through a writ petition filed by Zahira Habibullah Sheikh. The Gujarat riots case, which earned the then Gujarat government the tag of 'modern day Nero', was handled by then junior judge Justice Arijit Pasayat sitting in court number 11.

Rubabuddin Sheikh, brother of Sohrabuddin who was killed in a fake encounter case, filed a writ petition in 2007. The case, which turned out to be politically crucial for Amit Shah and Gujarat police, was assigned to a bench sitting in court number 11 headed by Justice Tarun Chatterjee, one of the junior most SC judges at that time. Orders from the court created trouble for BJP and its leadership in Gujarat and did not attract any comment from activist lawyers about possible 'bench fixing'.

In 2009, renowned advocate Ram Jethmalani launched a crusade against black money by filing a petition in the SC. The case, which became an election issue in 2014, was handled by court number 9 and by a bench of then 'junior judges' Justices B Sudershan Reddy and S S Nijjar. A year later in 2010, an NGO led by advocate Prashant Bhushan brought the case relating to alleged irregular allotment of 2G spectrum and the then CJI assigned it to court number 11 of Justices G S Singhvi and A K Ganguly. No one can fault the way they handled the case despite being juniors.

The same year, the Delhi HC gave a landmark judgment decriminalising consensual sexual relationship in private between adults of LGBTQ community. The appeal by one Suresh Kumar Kaushal in the SC was assigned by to court number 11 where a bench headed by Justice G S Singhvi heard it for the first time.

In 2011, the CBI filed an appeal, after much dithering, questioning the Allahabad HC decision to drop conspiracy charge against L K Advani and a host of BJP stalwarts in the Babri masji demolition case. In March 4, 2011, the case was heard in court 8 by a bench of Justices V S Sirpurkar and T S Thakur. The bench changed to Justices H L Dattu and Chandramauli Prasad in court 11, then to court number 9 of Justices M Y Eqbal and Arun Mishra in 2016. It passed on to court number 6 of Justices P C Ghose and R F Nariman which gave judgment on April 19 last year reviving the conspiracy charge.

n 2012, four explosive PILs were filed — irregular allotment of coal blocks that came close to singe then PM Manmohan Singh, validity of Aadhaar, validity of 66A of Information Technology Act and an alleged sexual assault case against Rahul Gandhi. The coal scam petition by advocate M L Sharma was assigned to a bench headed by Justice R M Lodha sitting in court number 7.

An appeal filed by one Kishore Samrite presented a curious judgment passed by Allahabad HC, which had dismissed Samrite's petition with a cost of Rs 50 lakh, of which Rs 20 lakh was to be given to Rahul Gandhi. The then CJI assigned this to a bench of Justices V S Sirpurkar and T S Thakur in court number 8 and then changed the bench to Justices B S Chauhan and Swatanter Kumar, which dismissed it with a cost of Rs 5 lakh on Samrite.