Lawyer Lekshmana Chandra Victoria Gowri was being sworn in as an additional judge of the Madras High Court today, the Supreme Court dismissed petitions against her elevation as a judge. The petitioners had cited Ms Gowri's alleged hate speech against Muslims and Christians, arguing it made her unfit to take the oath.
The oath ceremony started while the Supreme Court hearing was still underway. "We are not entertaining the writ petitions. Reasons will follow," a special bench comprising Justices Sanjiv Khanna and Bhushan Ramkrishna Gavai said
The Apex Indian Court today issued notice to the Centre and sought a report within three weeks over an appeal against the ban on a controversial BBC documentary on Prime Minister Narendra Modi and allegations linked to the 2002 Gujarat riots. The Supreme Court asked for the original record of the order to take down the documentary from the public domain.
The Supreme court acted on a petition by veteran journalist N Ram, activist-lawyer Prashant Bhushan, and Trinamool Congress MP Mahua Moitra, asking that the Centre be stopped from censoring the documentary.
The petitions challenge the use of emergency powers to block the documentary and remove links from social media. The Centre never formally publicised the blocking order, said a separate petition by lawyer ML Sharma calling the ban on the two-part documentary "malafide, arbitrary, and unconstitutional".
On January 21, the Centre, using emergency provisions under the Information Technology Rules, 2021, issued directions for blocking multiple YouTube videos and Twitter posts sharing links to the controversial documentary "India: The Modi Question".
In another round of elevation to SC, the Supreme Court Collegium today recommended to the Centre the names of Allahabad High Court Chief Justice Rajesh Bindal and Gujarat High Court Chief Justice Aravind Kumar for elevation as apex court judges.
All the six members of the Collegium, led by Chief Justice of India D Y Chandrachud, were unanimous in recommending the name of Justice Bindal, said the resolution uploaded on the apex court website.
However, Justice K M Joseph had reservations about recommending the name of Justice Kumar, the resolution said.
"The resolution of the Collegium in regard to the appointment of Mr Justice Rajesh Bindal, Chief Justice of the High Court of Judicature at Allahabad, is unanimous. However, regarding the appointment of Mr Justice Aravind Kumar, Chief Justice of the High Court of Gujarat, Justice K M Joseph has expressed his reservations on the ground that his name can be considered later," the resolution said.
With the ongoing conflict over judicial appointments, Union Law Minister Kiren Rijiju today strongly objected to the Supreme Court making public the government's objections to candidates recommended for judges.
Last week, the Supreme Court collegium headed by the Chief Justice of India, DY Chandrachud, published on the Supreme Court website the government's objections to the elevation of three candidates for judge and its own counter.
Amid a tussle with the government, it was an unprecedented move by the Supreme Court to make public the inputs of intelligence agencies - the Research and Analysis Wing (RAW) and the Intelligence Bureau (IB) - on the government's objections.
Law Minister Kiren Rijiju said today that he would "react at an appropriate time" but made his views clear in front of the camera while addressing the media. .
"Putting out secret and sensitive reports of RAW or IB in public domain is a matter of grave concern, to which I will react at an appropriate time. Today is not the appropriate time," the Law Minister told reporters.
"If the concerned officer who is working for the nation in disguise or secret mode in a very secretive location, he will think twice if tomorrow his report is put out in the public domain, and it will have implications. That is why I will not make any comment," Law Minister stated.
When asked whether he would take it up with the Chief Justice, the minister said: "The Chief Justice and I meet so often. We are always in touch. He is the head of the judiciary, I am the bridge between the government and the judiciary. We have to work together - we can't work in isolation. It is a contentious issue...let's leave it for another day."
Law Minister Kiren Rijiju said that as the judges are not elected, they do not face public scrutiny but people watch them and make assessments about them from the way they deliver justice,
The minister's remarks at a Republic Day function organised at the Tis Hazari courts complex here came amid a tug-of-war between the judiciary and the executive.
Rijiju said due to social media, ordinary citizens ask questions from the government and they should do so. The government is attacked and questioned "and we face it", he said. "If people elect us again, we will return to power. If they don't, we'll sit in the opposition and question the government.".
He said on the other hand if a person becomes a judge, he does not have to face elections. "There is no public scrutiny of judges," he said. "...As people don't elect you, they cannot replace you. But people are watching them -- their judgements, the way you deliver verdict -- people are watching and make assessments and form an opinion," he said. Nothing is hidden in the era of social media, he said.
Rijiju said the Chief Justice of India had requested him to do something about the attacks on judges on social media. He wanted to know how to control the insulting language against judges. He said the judges cannot argue in a public forum as there are limitations.
"I have thought about what should be done. There is a provision of contempt. But when people comment on a mass scale, then what can be done? While we are facing public scrutiny and criticism on a daily basis, judges too are facing the same now," he said.
He claimed judges too these days are a little careful, because if they deliver a verdict that will result in a "massive reaction" in society, then they too would be affected as they are also humans.
The Supreme Court seems to have decided to take on the Government over the issue of the appointment of judges. Putting up its communication with the Centre in the public domain, the collegium judges, headed by Chief Justice of India DY Chandrachud, have made it clear that they are not going to take the almost daily badgering from the Centre lying down. Making the communication public was a big decision for them; the top judges reportedly deliberated for four days before taking this unprecedented step. Till the time of writing these lines, there has been no response from the Government to the SC’s communication. This is not a desirable situation; the judiciary and the executive should act in harmony, not in conflict. Owing to differences in perspectives and lines of thinking, there can be occasion friction; this happens elsewhere as well. In the United States, for instance, the differences become pronounced over important matters like gun control and abortion. The tensions, however, cannot be allowed to linger on for longer periods; but, unfortunately, that is what is happening. In 2015, the apex court struck down the National Judicial Appointment Commission (NJAC), the alternative judges’ appointment mechanism. Since then, the Government has been smarting under that ruling. In the last few months, its unease over the collegium system has been articulated by many a personage — from Vice President Jagdeep Dhankhar to Law Minister Kiren Rijiju and Lok Sabha Speak Om Birla. Worse, the articulation has sometimes bordered on abrasiveness.
While the executive has been ham-handed, the judiciary has not been very prompt in resolving the issue. Months ago, CJI Chandrachud had said that the collegium system would be reconsidered; not much seems to have happened since then, even as Government functionaries have been becoming impatient and sometimes intemperate. Posting letters signed by top judges on the SC website also has the potential to further flare up the matter. The apex court judges have reasons to disagree with the Centre’s refusal to elevate the three candidates to the Delhi, Bombay, and Madras High Courts. Saurabh Kirpal was denied judgeship because of his sexual orientation and the foreign nationality of his partner; this smacks of a socially reactionary attitude. Similarly, the rejection of Somasekhar Sundaresan and R John Sathyan, because one of them was critical of Prime Minister Narendra Modi and the other of the Citizenship Amendment Act, doesn’t seem proper. The Supreme Court has correctly trashed the Government’s objections, but one wonders if this needed to be done publicly. Besides, as we said earlier, a bit of urgency on the part of the top court over the collegium would go a long way in smoothing its relationship with the Government. Two organs of the State bickering with each other all the time is not a good advertisement for either India or democracy.
The article is courtesy: The Pioneer.
Union Law Minister Kiren Rijiju has written to the Chief Justice of India, DY Chandrachud, suggesting that the Supreme Court collegium that decides on judges' appointments should include representatives of the government, sources have said. This is an ongoing government pressure to bring transparency into judicial appointments. In a war of words over judges' appointments, several ministers and Vice President Jagdeep Dhankhar have criticised what they believe is "opaqueness" of the judiciary.
The panel of top Supreme Court judges should include government representatives to infuse transparency and public accountability, the Law Minister has written in the letter that escalates an ongoing back-and-forth between the government and judiciary. Law Minister has also said state representatives should be part of the High Court collegium.
Earlier, CJI has indicated to accommodate the government's concerns and make the system of appointment more progressive and transparent.
Hate speech regular incidents have drawn the attention of the Supreme court. The Supreme Court noted while seeking a report from the police officer probing the matters that "No palpable progress” has been made by the Delhi Police in the investigation into cases of hate speeches made at religious assemblies in the national capital in 2021,
The specific incident pertained to December, 2021 and the FIR in the case was lodged on May 4, last year, the top court said, adding, “Why do you need five months for lodging a FIR. How many arrests have been made”.
A bench comprising Chief Justice D Y Chandrachud and Justice P S Narasimha said “there was no palpable progress made in the investigation”. The bench then asked Additional Solicitor General K M Nataraj to file an affidavit within two weeks of the Investigating Officer (IO) of the Delhi Police giving details of the progress made so far in the investigation of the case.
The supreme court was hearing a contempt petition filed by activist Tushar Gandhi alleging inaction by Uttarakhand and the Delhi Police in alleged hate speech cases. On November 11, last year, the bench discharged the Uttarakhand government and the police chief from a list of parties in the contempt plea. The contempt petition was filed seeking punishment for the police chief of Delhi and Uttarakhand for their alleged inaction in the cases in violation of the apex court judgment in the Tehseen Poonawala case.
The specific plea submitted that immediately after the events took place, the speeches were made available and were in the public domain but still, the Uttarakhand Police and the Delhi Police did not act against the perpetrators. Hate speeches were made in the 'dharam sansad' held in Haridwar from December 17 to 19, 2021 and in Delhi on December 19, 2021, the petition alleged.
The supreme court had laid down guidelines as to what action needed to be taken in hate crimes, including mob lynching. In his petition, the activist sought contempt action against senior police officials for not taking any steps on the issue, according to the guidelines laid down to curb hate speeches and lynching. Gandhi had sought contempt action against the police officials for not taking any action after incidents of hate speeches.
In an ongoing legal battle between the two Shivsena, the Supreme Court scheduled the hearing of the matter arising out of the rebellion by Eknath Shinde and other MLAs against Shiv Sena chief Uddhav Thackeray in Maharashtra, on February 14.
Representing the Thackeray faction Senior advocate Kapil Sibal submitted before a five-judge bench headed by Chief Justice D.Y. Chandrachud that the matter was urgent as the Election Commission was conducting proceedings on the issue of control over the party and the symbol.
Kapil Sibal further argued that the court has to primarily decide the issue of whether the 2016 five-judge judgment of the Nabam Rabia case should be referred to the seven-judge bench. The judgment restricted the power of the Speaker to decide disqualification petitions if a resolution seeking his removal was pending.
The CB -- also comprising Justices M.R. Shah, Krishna Murari, Hima Kohli, and P.S. Narasimha -- fixed the matter for hearing on February 14. Senior advocate Neeraj Kishan Kaul along with advocate Abhikalp Pratap Singh appeared for Eknath Shinde's group of the Shiv Sena. Solicitor General Tushar Mehta represented the Governor.
In August this year, a three-judge bench of the apex court had said that a five-judge constitution bench will hear a batch of petitions filed by Maharashtra Chief Minister Eknath Shinde and Uddhav Thackeray faction on queries related to defection, merger, and disqualification.
A three-judge bench of the apex court, in its reference order, had framed the first issue of whether notice for removal of a Speaker restricts him from continuing with disqualification proceedings under the Tenth Schedule of the Constitution, as held by this court in Nebam Rabia (by a five-judge bench).
Thackeray suffered a major setback after Eknath Shinde and other MLAs rebelled against him and ousted him as the Maharashtra CM. They also laid claims to the Shiv Sena party and its symbol as well.
The top court restrained the Speaker from proceeding with disqualification petitions against Shinde and other MLAs and subsequently allowed a fresh vote of confidence in the Assembly, after which Thackeray resigned. The apex court on July 11 last year asked the newly appointed Maharashtra Assembly Speaker not to go ahead with proceedings on the disqualification petitions.
The Modi government assured the Supreme Court that it will adhere to the timeline and expedite the judges' appointment process, while the top court pointed out that sending back reiterated names by the Centre was a matter of concern.
At the outset, Attorney General R. Venkataramani, representing the Centre, submitted before a bench headed by Justice Sanjay Kishan Kaul that some recent recommendations sent by the high courts were being processed, probably 44 recommendations (name of judges) sent by the collegium will be cleared either by Saturday or this weekend.
The bench comprising of Justice SK Kaul &Justice Abhay S. Oka, queried the AG about the five names which were recommended by the apex court collegium in December last year for the elevation to the Supreme Court.
The AG emphasized that all efforts were being made to conform to timelines fixed by the apex court for clearing the names recommended by the collegium for the appointment of judges to the high courts and the apex court. He added that 104 recommendations have been made by the high courts, which are with the Centre and out of which 44 would be cleared.
A five-judge Constitution bench headed by Justice S A Nazeer said no additional restrictions, except those mentioned under Article 19(2) of the Constitution, can be imposed on a public functionary's right to freedom of speech and expression.
"Statement made by a minister even if traceable to any affairs of state or protecting the government cannot be attributed vicariously to the government even applying the principle of collective responsibility.
"Fundamental right under Article 19(1)(a) can be exercised even against other instrumentalities other than the state," the bench, also comprising Justices B R Gavai, A S Bopanna, V Ramasubramanian, said.
A minister's statement cannot be attributed "vicariously" to the government even when applying the principle of collective responsibility, the Supreme Court said on Tuesday and held that there can be no additional restrictions on freedom of speech for public functionaries.
Justice B V Nagarathna, who was also part of the bench, agreed that greater restriction cannot be imposed on free speech, in addition to grounds under Article 19. She, however, said such statements can be vicariously attributed to the government in case a minister makes disparaging statements in his "official capacity".
Justice Nagarathna said hate speech strikes at the foundational values by making society unequal and also attacks citizens from diverse backgrounds especially "in a country like us that is 'Bharat'." She said freedom of speech and expression is a much needed right so citizens are well informed and educated on governance.
The court was hearing a plea filed by a man whose wife and daughter were allegedly gang-raped in July 2016 on a highway near Bulandshahr. He was seeking transfer of the case to Delhi and lodging of an FIR against then Uttar Pradesh minister Azam Khan for his controversial statement that the gang-rape case was a "political conspiracy".
The judgment came on a question of whether restrictions can be imposed on a public functionary's right to freedom of speech and expression. The top court, which reserved its verdict on November 15, had said people holding public offices should exercise self-restraint and not blabber things that are disparaging or insulting to other people in the country.
The apex court had said this approach is part of our constitutional culture and there is no need for it to formulate a code of conduct for public functionaries. The court had noted that irrespective of what Article 19(2) may say, there is a constitutional culture in the country where there is an inherent limitation or a restriction on what people holding responsible positions say.
Article 19(2) relates to the powers of the State to make laws imposing reasonable restrictions on the exercise of the right to freedom of speech and expression in the interest of sovereignty and integrity of the country, public order, decency, morality etc.
A three-judge bench had on October 5, 2017 referred to the Constitution bench various issues for adjudication, including whether a public functionary or a minister can claim freedom of speech while expressing views on sensitive matters.
The need for an authoritative pronouncement on the issue arose as there were arguments that a minister cannot take a personal view and his statements have to be in sync with government policy.