I

IN THE SUPREME COURT OF INDIA

suo MoTo CONTEMPT (CRL.) NO I OF 2020

IN THE MATTER OF:

IN RE: PRASHANT BHUSHAN AND ANOTHER ....ALLEGED
CONTEMNORS

AFFIDAVIT IN REPLY ON BEHALF OF RESPONDENT NO.I

[, Prashant Bhushan, S/o Shri Shanti Bhushan. R/o B-16. Sector 14.

Noida. do hereby solemnly state and affirm as under:

l. That I am the first Respondent in this Contempt Petition and

am fully acquainted with the facts of this case. I have read and
understood the contents of the Contempt Petition notice issued

to me and my reply to it is as under.

2. That the order of the court dated 22.07.2020, issuing notice to

me refers to a contempt petition filed by one Mr. Mehak
Maheshwari on the 21.07.2020, with an accompanying
application for exemption from taking permission of the
Attorney General. That petition appears to have been converted
into a suo moto petition on which notice has been issued to me.
However the notice did not contain the original contempt
petition of Mr. Maheshwari. The order also mentions that the
matter was placed before the bench on the administrative side

and then directed by them to be placed on the judicial side.

However, copies of those administrative orders are also not
 2

annexed with the notice. Therefore, I had written on

28.07 .2020 to Secretary General of the Supreme Court, seeking

a copy ofthese documents, which have since not been provided

to me. In the absence of that, I am somewhat handicapped in

dealing with this contempt notice. However, without prejudice

to the above, my preliminary reply to the notice issued to me is

as under.

3. The notice is based on two tweets by me. One dated 27 .06.2020

and the other 29.06.2020. The tweet regarding the CJI riding a

motorcycle dated 29.06.2020 was made primarily to underline

my anguish at the non physical functioning of the Supreme

Court for the last more than three months, as a result of which
fundamental rights of citizens, such as those in detention, those

destitute and poor, and others facing serious and urgent

grievances were not being addressed or taken up for redressal.

The fact about the CJI being seen in the presence of many
people without a mask was meant to highlight the incongruity

of the situation where the CJI (being the administrative head of

the Supreme Court) keeps the court virtually in lockdown due

to COVID fears (with hardly any cases being heard and those
heard also by a unsatisfactory process through video

conferencing) is on the other hand seen in a public place with

several people around him without a mask. The fact that he was

on a motorcycle costing 50 lakhs owned by a BJP leader had

been established by documentary evidence published on social

media. The fact that it was in Raj Bhavan had also been

reported in various sections of the media My expressing

 3

anguish by highlighting this incongruiry and the attendant facts

cannot be said to constitute contempt of court. If it were to be

so regarded, it would stifle free speech and would constitute an

unreasonable restriction on Article l9(1Xa) of the Constitution'

4. So far as the second tweet dates 27.06.2020 is concerned it has

three distinct elements, each of which is my bonafide opinion

about the state of affairs in the country in the past six years and

the role of the Supreme Court and in particular the role of the
last 4 CJIs. The first part of the tweet contains my considered

opinion that democracy has been substantially destroyed in

India during the last six years. The second part is my opinion
that the Supreme Court has played a substantial role in

allowing the destruction of our democracy and the third part is

my opinion regarding the role of the last 4 Chief Justice's in
particular in allowing it.

5. Such expression of opinion however outspoken, disagreeable or

however unpalatable Some, cannot constitute contempt of

court. This proposition has been laid down by several

judgments of this court and in foreign jurisdictions such as

Britain, USA and Canada. It is the essence of a democracy that

all institutions, including the judiciary function for the citizens

and the people of this country, and they have every right to

freely and fairly discuss the state of affairs of an institution and

build public opinion in order to reform the institution. I submit

that my criticism has been outspoken yet it has been carefully
weighed and made with the highest sense of responsibility.
 4
what I have tweeted is thus my bonafide impression about the
manner and functioning of the Supreme court in the past years

and especially about the role of the last 4 chief Justices have

played vis a vis their role in being a check and balance on the

powers of the executive, their role in ensuring that the supreme

court functions in a transparent and accountable manner and

was constrained to say that they, contributed to undermining
democracy.

6. It is also submitted that the chief Justice is not the court, and

that raising issues of concern regarding the manner in which a

CJI conducts himself during "court vacations,', or raising

issues of grave concern regarding the manner in which four
CJIs have used, or failed to use, their powers as,,Masterof the

Roster" to allow the spread of authoritarianism,

majoritarianism, stifling of dissent, widespread political
incarceration, and so ofl, cannot and does not amount to
"scandalising or lowering the authority of the court,. The
court, in this case the Supreme Court, is an institution
consisting of 3l Judges and its own long-standing and enduring

traditions and practices, and the Court cannot be equated with a

Chief Justice, or even a succession of four CJIs. To bona fide

critique the actions of a CJI, or a succession of CJIs, cannot and
does not scandalise the court, nor does it lower the authority of
the court. To assume or suggest that'the CJI is the SC, and the

SC /s the CJI' is to undermine the institution of the Supreme

Court of India.
 5

7. The stifling of dissent under the watch of the Supreme Court

has not only been adversely commented upon by retired Judges

of this very Court, but even by sitting Judges who have been

part of the SC during the tenure of the four CJIs. Justice DY

Chandrachud while delivering the l5th P.D. Desai Memorial

Lecture in the Gujarat High Court Auditorium on l5th

February, 2020, expressed his anguish at the manner in which

dissent was labeled as anti-national, thereby striking,

"at the heart of our commitment to protect constitutional

values and the promotion of deliberative democracy".

In the course of this speech, delivered at the height of the

anti-CAAAIRC protests in Shaheen Bagh and around the

country, he stated that,

"employment of stote machinery to curb dissent instills

fear ond creates a chilling atmosphere on free speech

which violates the rule of law and distracts from the
constitutional vision of a plural socieQ".

Justice Chandrachud used strong words to denounce the

"suppression of intellect",which he likened to"lhe suppression

on the conscience of the nation". Yet, one week later, when the
Delhi riots were unleashed, with daily videos emerging of
mobs tearing down and burning mosques, the Police force
systematically destroying public CCTVs, taking an active part

in stone-throwing, massive firing and deaths, blockades of a

 6

Hospital to prevent assistance to the severely wounded

Muslims, etc. the Supreme Court remained a mute spectator

while Delhi burnt. A copy of the l5th P.D. Desai Memorial
Lecture delivered by Justice D.Y. Chandrachud is annexed
hereto as Annexu* C | ( 135- ,40)
8. Similarly, Justice Deepak Gupta, wlrile still a sitting Supeme

Court Judge, on 24th February, 2020, delivered a speech on

"Democrocy and Dissent" hosted by the SCBA, in which he

stated that the suppression of dissent has a chilling effect on

democracy, and called for "on intpartial decision-making

process in the judiciary". A copy of the speech of Justice

Deepak Gupta delivered on 24.02.2020 is annexed hereto as

Annexure cl-clq\rcL),
9. The bonafides of my opinion can be judged from the fact that

for the last thirty years in my practice at the Supreme Court and
Delhi High Court, I have consistently taken up many issues of
public interest concerning the health of our democracy and its
institutions and in particular the functioning of our judiciary
and especially it's accountability. Since 1991, I have been
involved in the Campaign for Judicial Accountability. The
focus of the campaign has been to generate public opinion for
putting in place credible legal institutions and mechanisms that

ensure that the judiciary functions in a more transparent and

accountable manner. To build this public opinion, the
Campaign has over the years organized discussions and
 7

conferences on various aspects of reforms needed in the higher

judiciary.

10. That signs of democracy being in danger have come from

no less than judges of the Supreme Court itself when in an

unprecedented press conference in January, 2018, the four

senior most judges of this Hon'ble Court,"'Justices

Chelameshwar, Kurien Joesph, Madan Lokur, & Ranjan

Gogoi warned the citizens that,

"There are many things less than desiroble thot 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. Iile

all believe that the SC must mointain its equanimity.

Democracy will not survive without a free iudiciory."

So serious were the misgivings of the senior sitting judges that

they felt compelled to disregard the Code of Judicial Conduct

to call a press conference and warn citizens of danger to

democracy because of danger to a free judiciary. Perhaps left

with no other alternative, the judges felt compelled to exhort

the citizens to protect democracy by saying that,

"V/e ore discharging our duty to the nation by telling you

what's what".
 8

In doing so, the judges were invoking a higher principle than

the one governing the everyday Code of Judicial Conduct:

when those who are to regulate everyone else fail to regulate
themselves, then honest public criticism is the only remedy.

A copy of a news
report in The Wire dated 12.01.2018 on the Press Conference

by Supreme Court Judges is annexed hereto as Annexure

v

11. It was one of the four judges of the Supreme Court who
alerted the citizens to the "external influences" on the Supreme

Court. Hon'ble Justice (Retd.) Kurian Joseph on 03.12.2018

went to the extent of saying that,

"There were several instances of external influences on

the working of the Supreme Court relating to allocation

of cases to benches headed by select iudges and

appointment of judges to the Supreme Court ond high

courts." ...."Someone from outside was controlling the

CJI, that is what we felt. So we met him, asked him,
wrote to him to maintain independence and majesty of
the Supreme Court. When all attempts failed, we decided

to hold a press conference."

Asked to elaborate on the 'external influence', Justice Joseph

said,
 9

"starkly perceptible signs of influence with regard to

allocation of cases to dffirent benches selectively, lo
select judges who were perceived to be politically
biased." .

Such a disclosure creates an obligation ror every citizen to

defend the independence of the Supreme Court.

A copy of the Times of India report, "We felt then CJI was
being remote controlled; Justice Kttrian Joseph", dated 3'd

December 2018 is annexed as Annexu ,, C+ (lll't?7)

l2.The freedom of speech &. expression guaranteed to every

citizen under Article 19(1)(a) is the ultimate guardian of all the

values that the constitution holds sacred: Rule of Law,

Separation of Powers, Secularism, Free & Fair elections, etc.

The relationship between Article l9(lXa) and Article 129 is

governed by Article 19(2). Article l9(2) tecognizes the fetters

that can be placed on freedom of speech & expression under

the Court's power to punish for contempt under Article 129.
'Reasonable restriction' being the operative word under Article

l9(2), any exercise of contempt powers by the Supreme Court,

must necessarily not be of a nature that goes beyond
' reasonable restrictions' .

l3.To prevent a citizen from forming, holding, & expressing a

,bonafide opinion' in Public Interest on any institution that is a

creature of the Constitution is not a reasonable restriction and

violates the basic principles on which our democracy is

 t0
founded. To prevent a citizen from 'evaluating' in Public
Interest the performance of any institution that is a creature of
the constitution and putting it in the public domain to inform,
generate a debate, build public opinion for reforms/change is

violative of our right to free speech.

14.The power of contempt under Article 129 is to be utilized to aid

in administration ofjustice and not to shut out voices that seek

accountability from the Court for it's errors of omissions and
commissions which have been detailed hereinafter. To curb
constructive criticism from persons of knowledge and standing

is not a'reasonable restriction'. Preventing citizens from

demanding accountability and reforms and advocating for the

same by generating public opinion is not a 'reasonable

restriction'. Article 129 cannot be pressed into service to stifle

bonafide criticism from citizens who are well informed about

the omissions and commissions of the Supreme Court.

15. Gajendragadkar, C.J. in Special Reference No. I of

1964 observed as follows:

"We ought never to forget that the power to punish for

contempt, large os it ls, musl always be exercised
cautiously, wisely and with circumspection. Frequent or
indiscriminate use of this pov)er in anger or iruitation
would not help to sustain the dignity or status of the
court, but may sometimes affect it adversely. Wise iudges
never forget that the best way to sustain the dignity and
status of their office is to deserve respect-fro* the public
 ll
at large by the quality of their iudgments, the
fearlessness, foirness and objectivity of their approach,
and by the restraint, dignity and decorum which they
observe in their judicial conduct."

16. ln Baradukantu Mishra v. Registrar of Orissa High Court,

(1974) I SCC 374, p. 403, lustice Krishna Iyer observed,
"65. Before stating the principles of latu bearing on the

facets of contempt of court raised in this case we would

like to underscore the need to draw the lines clear
enough to create confidence in the people that this

ancient and inherent power, intended to preserve the

faith of the public in public ittstice, will not be so used as

to provoke public hostiliy' as overtook the Star Chamber'

A vague and wandering jurisdiction with uncertain

frontiers, a sensitive and suspect power to punish vested

in the prosecutor, a law which makes it a crime to
publish regardless of truth and public good and permits
a process of brevi manu conviction, may unwittingly
trench upon civil liberties and so the special jurisdiction

and jurisprudence bearing on contempt power must be

delineated with deliberation and operated with serious

circumspection by the higher iudicial echelons. So il is

that as the palladium of our freedoms, the Supreme

Court and the High Courts, must vigilantly protect free

speech even against iudicial umbrage - a delicate but
sacred duty whose discharge demands tolerance and
detachment of o high order. ".... 82. " the
 t2
countervailing good, not merely of free speech but also
of greaterfaith generated by exposure to the actinic light

of bona fide, even if marginally overzealous, criticism

cannot be overlooked. Justice is no cloistered virtue. "

17. In Amburd v Att General of Trinidad and Tobago (1936)

A.C. 322(P.C) Lord Atkin said :

"... no wrong is committed by any member of the public

v
who exercises the ordinary right of criticizing in good

faith in private or public the public act done in the seat

of justice. The path of uiticism is a public way: the
wrongheaded are permitted to err therein: provided that

members of the public abstain .fro* imputing improper

motives to those taking part in the administration of
justice, and are genuinely exercising a right of criticism

and not acting in malice or attempting to impair the

administration ofjustice, they are immune. Justice is not
a cloistered virtue: she must be allowed to suffer the
scrutiny and respectful even though outspoken comments
of ordinary men.".

Lord Atkin said that the case had been discussed at length
because it concerned,

v
" ... the liberty of the press, v'hich is no more than the
liberty of any member of the public, to criticize
 l3
temperately any fairly, but freely any episode in the

adminis trati on ofi us tic e "

18. Amburd was relied upon in P.tr[. Duda v. P. Shiv Shonker,

(1985) 3 SCC 167 in which case it was the Law Minister who

was arrayed for Contempt. It was observed as under:

14. tt is well to remember the observations of Justice

Brennon of U S. Supreme Court (though made in the

context of law of libel) in New York Times Company v'

L.B. Sullivan that it is a prized privilege to speak one's

mind, although not always with perfect good taste, on all

public instittrtions and this opportunity should be

afforded for vigorous advocacy no less than abstroct

discussion.

t5. Lord Denning in Regina v. Commissioner of Police of

the Metropolis, ex parte BlackburnT observed asfollows:

"Let me say at once that we will never use this iurisdiction

os o meons to uphold our own dignity. That must rest on

sttrer foundations. Nor will we use il to suppress those

who speak against us. We do not fear criticism, nor do we

resent it. For there is something far more important at

stake. It is no less thanfreedonr of speech itself'

Ir is the right of every man, in Parliament or out of it, in

the press or ot,er the broadcast, to make fair comment,
puo sa8pn{ a4t qnq,N utsntlt"D o s! U 'rua1s(s an1sn[ tno ur
Wlot aqt Sutpo.ra v a18uo.tm lo.mpaco.rd aq1 '3uo1 oo7 .tol
'3uo7 ,tol a)uafs ut sau) nusnf 'qUM pap ot ruatadwocur
a.to acusnf to sl"rno) q)ryM sf^a ssafpaLuil uo{ "o[ns
rtopoy rfuo14 '(paau aW q au1sn[ puuqsqns puD tlunb
"taqap ot ntol lo s1moc ary lo ,fiUnou! ary ruq sntstutw
,to suotcryr1od r(q apow sy,towa,t Sutstlopuocs aW {q
qcna os pu pasnoc uaaq sDLl pW puD uo1 lo fisa[ow aqt
ut puo uno) aqt lo {lruBrp aW w Llryollo uotsota uaaq sDq
aDW wqt Q.not puo [14uo{ pagypD aq q sDq U"" "' 'gl
s8urry uaqoL uorldo uD tou v nualts 'puoq
,,'auop ilt afi
m DilDu aql q guau4tad q U pW papra'otd 'sa.unba.t
uotsDc?o aW pqw 8ur{os utott 'ppo pruot4 1 '.tou :tqBut st
a^aryaq aM pq/^ 3u1op uto{ sn ,tatap ilk 'pW rc uad nql
{q ua17t"ru s! Wltlw 8urytou 'pqt "to uos,rad s1ry {q prus st
qllqm &urylou 'utsrcr\t"tc to spu!tut aLfi of ato alvt so pasodxg
'uotlD)tputL ut o
sU aq o7 l1as11 pnpuo) tno uo Qa"t tsnw a1y1 'rfs.tado"rluoc
'{stad.oquoc ulqnd oru!
1ocr1r1od otu! ssq 1!tg
firua puuoo all swsottltc ilaqt o1 Qdat puuz) am'acg[o
"tnolo a"tnpu ary wo.{'pqt Dqwawar lltw sn asotlt,to oq44
asow totlt sl 'lou to paddo o7 Tcafqns
lso pruow an ilv
a,to ,{aql fiqpq| 'snoaLtoLta suotst)ap tno puD 'uap$tM
a.to alvt pq1 [os uoc {aq1 'an1sn[ Lmo) D ut auop
lo
st pW ilo WlM qp!.ltttit pap uw ruawruo) oqw asoql
'gaarut ctlqnd lo stal1ow uo 'TLtaLuruoc uatlods1no uala
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 r5
lawyers must ntake about themselves. We must turn the
searchlight inward. At the some time we connot be
oblivious of the ottempts made to decry or denigrate the
judicial process, if it is seriously done. This qtrestion was
examined in Rama Dayal Markarha v. State of Madhya
Pradeshl0 where it was held that fair and reasonable

criticism of a iudgment which is a public document or

which is a public act of a iudge concerned with
administration of iustice would not constitute contempt. In

.fact such fair and reasonable criticism must be

encouraged because after all no one, much less judges,

can claim infallibility... "

19. In Re: S. Mulgaokar (1978) 3 SCC 339, Justice V K lyer,

observed:

27. The first rule in this branch of contempt power is a

wise economy of use by the Court of this branch of its
jurisdiction. The court will oct with seriousness and
severity where justice is ieopardized by o gross and/or
unfotmded attack on the iudges, where the attack is
calculoted to obstruct or destroy the judicial process.
The court is willing to ignore, by a majestic liberalism,
trr/ling and venial offenses-the dogs may bark, the

cnravan will pass. The court will not be prompted to act

as a result of an easy irritability. Much rather, it shall

take notice look at the conspectus of features and be
guided b)' o constellation of constitutional and other
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'auqsnf ssalnallo slotuo.ton?
to auo4staun) aql s! q)ns
apulup aqt an a1doad aatt y '8uu1oads ,tllouorpyrtsuoc
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alqDuosoa.t u! Na,tarut nlqnd saMasqns 'pasofixa
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wttl puo sadt8 pW wru passan t! 'tol '[co"tcowap o ut
passaq aclut 'll31.t {.tossacau o WQ aLuD ou sr 'rQactatt
Uaqp ',(p1ol aBpnt aql astcttt.D ol 'paapul 'etttr)
pap.taSSoxa .to tuo,t"ta sad,8,rol {lluByaq ptcrynf so uaa,a
n43ya TuoSotto s.tamodtaro aSotnoc punJ 'not aa,oqo
st-acusnf lo uotssa.tdxa s,aldoad aqrt\q aW 'qZry os
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o [q pa.tnoutD tllouostad x 'anla^ q8ru o to pqru{s
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to dn-8uo7 'ssatd pttau,od aqt tary aq 's,tauLuar,to)
gou7qoru puo luDluada,tun 'snot)tl 'snotlou8nd nto
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saq acuCIlDq tddoq y 'aBpnf aqt '{touoltcuntBurprsatd stt
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aW asruou.tDtl ot aq gnu aldrcurtd puo)as aqJ
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lo Tdwa1uo) uo poday aailttttuto)
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aql'paaput
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ol 3u4o1at swol 'Suruoaw
'poq Ltno) lo \drua1uo) llv
a^oq ot sarupls amtn! puo rod 11o papuarut uouuttsuo)
aqt lo sraqrul Surpunog aW Wttlw urytlu suorcra'otd
puouwllsuoc ary lo sn1cadsuoc aW wo'{ lndo poat
aq puuo) t! 'rug 'uo!t!u{aP apru t1arua4xa uo st stqJ
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spuq to snwol rc 'asryDpuo)s ol spuq fi sasqopuocs (t)
-WlqM fi^aosrytll^ lzo taqto {uoto
3u1op aql n DllDw ,tuo lo (asrutaqto to 'suollDluasatdat
alniltl ,tq
rc 'su'ts {q "to 'uailul] .to ua4ods 'sp"tow
,(q "taqtaqm) uorlocUqnd aqt sunaw ,,ldwa\uoc loutwt"t)
: sapd.o'td 1 76 7
1rv sunoJto 4drua1uo) aW lo (c)(t)Z uou)as s$anlut
Suuadruoc asap 1o Surcuoloq "tol paau aql uosatot
snlow uourugsuoJ .ttto 'suaddott l! sV 'autl aW stuto'tp
,acuatdos, lorupn[ puo 'nuDloq ary)ryap o ffiQ '(1t'to1od
pnldacuoc ou st anp 'unoc lo Tdwa\uo) ol alqoctlddo
sD .tauuDw paTot&alur uo ut mo1 to {qdoso1ryd puo
,{qdosopqd prcos ary to Suryoadg 'Mo7 lDtuawDpunC
mo lo a)uassa p"mldrtcs aW ,11 WlqM ac1sn[ 'trot
puo qcaads aa.{ lo acuangfuo) ary uo paluatto 'ta(Aod
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 pappqm aBpn{oto pros Bugtr(tata rury rnopo!tou saop
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l! ruq 'taqil lo uLq aW w pasn e M.tq rury sD ldualuoc
otu! wry Suuq ot ptDS aq r{ow a*pn{ o Burutacuoc
uottoctlclnd {.tolowotap [.tana ,rynop ou ,asuas
auo ul
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'St (EtOt) ,Ltno3 lo ldrualuo) puo s,tadodsualg, aas)
'laqtl puo.rapuolslo saru"t troutpto aqt
npun w!& uoap s! ,sppq aq acg{o atfi tlllu papauuocun
'rutq uodn l)D&o louos.tad tuo la&pnf so a&pnf ,, aql
to ws1c111n afryoq {uo suoaw uno) ary ButsrlDpuo)5,,
: U rud saq Ltoqpoog "rossatot4
sV 'qcns so sa8pnf pnpaqut lo uot1o1nda.t louos.tad
aqt uodn $lrDgo {q pal1uuwoc aq rcu illm acua.ffo
aql 'atrysn! to uollotlstutwpo aW u! acuap{uoc cryqnd
1ca1o,rd ot slslxa ldwa1uoc lo *t aql asnz)ag .punoqo
,4,
sacods Surddoltad,o q7noqqo .sl nttol aW ?dwaruoc
tou st nuttot aq1 'ssacotd pafi Toqt ut acuapgfuoc
s,firunwwoc aql puo au1snf ulqnd lo uoucnqsqo
lo uoryuaa,atd puo a&pnf palary D Io uorycalo.td louostad
uaawtaq uotsntuoc pto^o ot s.r aldcur.td p"tlry aqJ
'sasD) Tdwa1uoc w ga,tarut
crlqnd lo acuatap aqt puawuto)at pu plp q)lqm (e-tg
'dd 'g-€ht 's.td p67g 'punq (tUt) wop&ury pailun aqt
8I
 t9
to bring him into contempt in that sense amounts to

contempt of Court.

ThusIn the matter of o Special Reference from the

Bahama Island (1893) A.C. 138 the Privl' Council
advised that a contempt had not been committed through

a publication in the l',lassau Guardian concerning the

resident Chief Justice, who had himself previously

criticised local sanitary conditions. Though couched in
highly sarcastic terms the publication did not refer to the
Chief Justice in his fficial, as opposed to personal,
capacity. Thus while it might have been a libel it wos not

a contempt.

20. That this Hon'ble Court has held that inspiring confidence

in the sanctity and efficacy of judiciary cannot be demanded

through power of contempt but rather should be built on trust

and confidence of the people that judiciary is fearless and

impartial. In C..S. Kornan, In t€, (2017\ 7 SCC I a

Constitutional Bench of seven judges observed:

63. ....The justification for the existence of that is not to

afford protection to indit'idual Judges [ "14. ... the lau'
of contempt is not made for the protection of Judges who

may be sensitive to the winds of pttblic opinion. Judges

are supposed to be men offortitude, able to thrive in a

hardy climate." [Douglas, J., Craig v. Harney, 1947

SCC OnLine USSC79, paro 14.91 LEd 1546 331 US
"
 20
367 at p. 376 (1947)ll but to inspire confidence in the

sanctity and fficacy of the judiciary t" The object of

the discipline enforced by the Court in case of contempt

of court is not to vindicate the dignity of the court or the

person of the Judge, but to prevent undue interference

with the administration of justice," [Bowen, L.J.

Helmore v. smith (2), (1886) 35 Ch D 449 ot p.455

(CA)ll , though they do not and should notflowfrom the

power to punish for contempt. They should rest on more

surer foundations. The foundations are-the trust and
confidence of the people that the judiciary is fearless and
impartial.

69.The exercise of such a power has always been very

infrequent and subjected to some discipline. Members of

the judiciary have always been consciousof the fact that
the power .fo, contempt should be exercised with
meticulous care and caution and only in absolutely
compelling circurustances warranting its exercise.

21. That at para 70 of the same judgment, it was observed

that bonafide criticism of the judiciary should be protected and
welcomed by the Judges and they should self-introspect as they
are not infallible. It was further held that even conduct ofjudges
or a group ofjudges may not amount to contempt if bonafide and
in public interest as under:
 st! to tctpn^ lztzrynf o to aldnuril SurQtapun aqt
'ldutatuoc
lo ,q pruor ustc7lt) lo a1ru ary lo uorlonlddo
aqt ,Q tou puo acuaprtuoc ulqnd aqt ,b{ua puo una
$nut saunp lo acuowtottad puo uotpo 'Pnpuoc uwo "ttaLll
'1o1ol s1 uotson gl 'aqusuadsrpur sr
{q sa*pnp 'asnoc lg
'aBpn1
tuolsts lotctpnf aW u! iluapg[uoc )llqnd lonparyut
aW ot pasno) ut,totl ary ruo"{ paqnn&urtstp so upnd
ary q 1uo.tu o Suraq lo auotsqrnol aLfi uo alqoqsrund
st uoucD snonldwaruu V iututDtp aQ ol autl aW st araql4
'9
2uoqdo uD Ltruuil ol asDn arualw plnoqs uaqx rug [,,
,,'saBpny [q uado 7da1
ato 'snqlo lo suotuldo aql lo ryZil aW u! 'Tuawssasso-t1as
lo s.toop aW aprssod aq Quo lllm 'mo7 to afy
I!
ary lo &safow aqt iluot1ua Qloat pryoiL WlqM uotlostlDat
D q)ns ""''ploqdtt puD a^.tas ot pailtuuto) a"to sa8pry ruqt
pooB ulqnd puo $a.tarut crlqnd qlll ruatslsuo) st 'l)npuo)
prcrynt/o sw,ro!.taq1o lo uad'a to ruawacunouotd 1orcrynf
o m passatdxa ruroduart' ary to asnuto .uol 'uo4on71s
o q)ns uJ 'suoodactad pnputlpw ilaW lo asnocaq puo
,fituattad,pout 'q&no4l 'ua uado rbql puo suomnq an {aqt
:alq!ilolul pu ato sa7pn1 'uoucadso"t\ur-l1as ol stoop aqt
suado il asnooaq 'sdoqtad 'aruoqaw st usntlt't) ap{ Duoq
'tco! ut :wstctlttc ol aililsuastaio Pu st ,(torupn1 '21,,
: [Oflg ttDD @Oge ) 'a"t ul 'otllDx
J7 t
tllD7l fiaq uno) qBW UDqnoD aW u! 3u17t1s ('7'ro3og) sn
auo lcoq apocap o lsowlD paopuar pawBpnf o ul '01
lo
IZ
 22
rationale or reosoning and even its correctness. Criticism
could be of the conduct of an individual Judge or a group
of Judges...."

22. In this context, freedom of expression and the

concomitant right to criticize, includes a fair and robust criticism

of the judiciary. This cannot amount to contempt of court or

lowering the dignity of the court in any manner. However, it has

been recognized that this freedom must not be unqualified. As

stated in the 2012 UK Law Commission report that

recommended the abolition of the offense of 'scandalizing the

court' in England,

"the purpose of the ffinse is not confined to preventing

the public from getting the u,rong idea about the judges,

and that where there are shortcomings, it is equally

important to prevent the public .fro* getting the right
ideo."

The report goes on to state that preventing criticism contributes

infact to the public perception that judges are engaged in a cover

up and that must be something to hide. Conversely, open

criticism and investigation into those few cases where something
may have gone wrong will confirm public confidence that
wrongs can be remedied and that in the generality of cases, the

system operates correctly. A copy of the Law Commission

Report on Abolishing Criminal Contempt dated 18th December

zot2,is annexed as Annexu r" CS (/,12."\7)

 23

23. Fu(her, many democracies have recognized the offence

of scandalizing the court as unconstitutional and recommended

the abolition of this offense as being inconsistent with any

constitutional guarantee of freedom of speech and of fair trial
since it gives judges, alone, among public wielders of power, a
special immunity from criticism and a power where they sit as

judges in their own cause, to punish their critics. Several

responsible observers of the court including former judges have

voiced their concern about the chilling effect of criminal

contempt on the freedom of speech and expression'

24. Justice A.P. Shah, former chief Justice of the Delhi

High Court, has in a piece in the Hindu opined on the chilling
effect of criminal contempt and that it is regreffable that judges
believe that silencing criticism will harbor respect for the
judiciary. A quote from his article is below:

For the supreme court of India, identifying priority cases

schedule) ought
to take up first (in a pandemic-constricted
not fo be very dfficult; there are dozens of constitutional
coses that need to be desperately addressed, such as the
constittttionality of the Citizenship (Amendment) Act' the

electoral bonds matter, or the issue of habeas corpus

petitions fro* Jommu and Kashmir' lt is disappointing
that insteod of taking up matters of absolute urgency in
these peculior times, the Supreme Court chose to take
"brought
umbrage at tyto ty,eets. It said that these tweets
 24
the administration of justice in disrepute and are capable

of undermining the dignity and authority of the

institution... and the ffice of the Chief Justice of India in

particular...." Its response to these two tweets was to

initiate suo motu proceedings for criminal contempt

against the author of those tweets, the lawyer and social

ac tiv is t, Pr as hant B hus han.

......On the face of it, a law for criminal contempt is

completely asynchronous with our democratic system

which recognises freedom of speech and expression as a

fundamental right.

An excessively loose use of the test of 'loss of public

confidence', combined with a liberal exercise of suo motu
powers, can be dangerous, for it can amount to the Court
signalling that it will not suffer any kind of critical
commentary about the institution at all, regardless of how

evidently problematic its actions may be. In this manner,

the judiciary could find itself at an uncanny parallel with

the executive, in using laws for chilling ffict.

A copy of Justice AP Shah's article in The Hindu on 27,h

July, 2020, titled "The chilling effect of criminal

contempt" is annexed as Anne-r* C 6 (ltl8 450
25. On the 27't' of July, the editorial in The Hindu called for

revisit of the idea of scandalising in the contempt law and the

 25

need to usher in judicial accountability, especially in the

context of the initiation of this suo moto contempt proceeding

as under:

"The initiation of proceedings for criminal contempt of

court against lawyer-activist Prashant Bhushan has once
again brought under focus the necessity for retaining the
law of contempt as it stands today. In an era in which
social media qre frll of critics, commentators and
observers who deem it necessary to air their views in
many unrestrained and uninhibited ways, the higher
judiciary should not really be expending its time and
energy invoking its power to punish for contempt of itself'

While it may not be reasonable to expect that the courts

should ignore every allegation or innuendo, and every

piece of scurrility, there is much wisdom in giving a wide

latitude to publicly voiced criticism ond strident

questioning of the cottrl's ways and decisions. Mr'
Bhushon is no stranger to the art of testing the limits of the

judiciary's tolerance of criticism. He has made allegations

of corruption against judges in the past, and has been

hauled up for it. The latest proceedings concern two

tweets by him, one a general comment on the role of some

Chief Justices of India in the lost six years, and another

targeting the current CJI based on a photograph' How

sensitive should the country's highest court be to its

outspoken critics? What would be more iudicious -

ignoring adverse remarks or seeking to make an example
 26
of some principal authors of such criticism to protect the
institution? The origin of this dilemmo lies in the part of
contempt law that criminalises anything thot "scandalises

or tends to scandalise" the judiciary or "lowers the

court's authority". It may be time to revisit this clause.

.... In contemporary times, it is more important that courts

are seen to be concerned about accountability, that

allegations ore scotched by impartial probes rather than

threats of contempt action, and processes are transparent.

Unfortunately, in o system in which judges are not

expected to disclose the reason for recusing themselves,

and even charges of sexual harassment are not credibly

investigated, it is only the fear of scandalising the

judiciary that restrains much of the media and the public

-fro* a more rigorous examination of the functioning of

the judiciary. "

A copy of the editorial in The Hindu dated 27.07.2020 is

annexed hereto as Annexu'. gt (lSt ,251)

26. An editorial in The Indian Express dated 23'd Ju|y,2020,

observed:

The initiation of contempt proceedings by the Supreme

Courl, suo motu, against lawyer-activist Prashant

Bhushan for his tweets, is offkey and jarring, not least

because of its timing. At a time when matters affecting
puo q)aads to wopaa{ lo stnoruor aqt papuodxa unoc
xado aql 'pq&ury or{atqg ur 'o3o snar( aatg 'ruawnZn
.taqp-ap-uo puo puoq-auo-aqruo ary 'tot 'a)uonu
n! palms ,Qlcoxa pu s/ Dtpaut PpoS ',,""to7ncqtod
u1 olpullo au1snptarq) aW
to ac{lo aW putl "' uouuttsu!
ary ,t4nqruo puo ,Q!uZ!P ary Sululwtapun lo alqodoc
lo
afi puD a1ndatnp ur acqsnfto uotlo.tlstulapo aqt ry8notq
aftDq,, 'rtopsaupal4 uo utttl ot panssl actpu aw u! plos s0t'l
unoo aW 'fittluJ uo sruawwoc s,uoqsnqg 'ruawacoldsrp
puo uounllod ot uoudnttoc ctlqnd wo'tl SurZuo't sfitlou
ur acuata[tp anonp^ut uo apDut puD uottols8a1 pattnds
snq asoLlt+ ntmq $afirut ulqnd D lsDt o7 3urt1o7
lnil
poa1sut 'srapruoqs.tapootq Moqs 'poot q31q ary illol ol
lo
spaau uno) aqt 'asaql so q)ns sautlt ur {1n1nc!upd 'tcol u1
'Surqmlstp
puo 'Sur1uroddostp sl tl to wso1tn TsuroSo tlttcolo rytr*t
uo1ctpsltnf tdruaruo) su illoiut ol 'luauow sryt u! '|tno)
aql "toi 'sdrtysp"ro'7 "tlaqJ pary't a^oq spatl otut'l
- ttwt4sox
puD nruutDf ttt suouualap wo{ Surwwa1s suoriltad
sndnc sDaqDq m sD snon\cn{ut asoc ary fipua't
pruoc rfu1ap qotqy4 ut sfillDw ut ,tcua8m aruU ufuoqs
sDq L,tnor aLfi uaq44 puo aso) spuoq lonlrala ary qll
- -
sna[ nt uo Eotp o7 panuuuo) a^Dq sasD) louounlusuo)
pDnD uaqt 'asuodsat s, aP$ ary lo ssauadt1ca[a
aW fioqo $tstad suoqsanb uaqw 'alDcs paruapnatdun uo
p ssaustp )tutouo)a puo lotzos [o 1as soq znapuod aqt
uaqt 'uouuailD s71 nl am spooqqaiil puo saul , suazutc
LC
 28
Article 19 to this noisy space. The Supreme Court's
contempt case against Bhushan shrinks that space and
-
itself,

A copy of the Indian Express editorial dated 23il July,2020 is

annexed as Annexu.. CB (tr fi)

27. Many senior advocates also spoke to the media
expressing their displeasure in the initiation of suo moto
contempt on the respondents tweets as below:

"It is tragic that some judges invoke the court's "dignity

and authority" while acting in a way that undermines it,
said Navroze Seervai. The shoulders of a court should be
broad enough to withstand criticism, said Roju
Ramachandran. The two tweets don't seem to have
transgressed into contempt, said Sanjoy Hegde. It would
appear to be a case of shooting the messenger, said Aspi

Chinoy. The four senior advocates spoke to Bloomberg

Quint on a new contempt of court case that the Supreme

Court has taken up suo moto or of its own occord. "

A copy of the Bloomberg Quint article dated 23'd July, 2020, is

annexed as Annexr* Cq (C,5t+- ?i7)

28. The Restatement of Values of Judicial Life (as adopted by
full bench of the Supreme Court on May 7, 1997, states:
 29
" 1. Justice must not merely be done, it must also be seen
to be done. The behaviour and conduct of members of the
higher judiciary must reform the people's faith in the

impartiality of the iudiciary. Accordingly, any act of the

judge of the Supreme Court or a High Court, whether in

fficial or personal capacity, which erodes the credibility

of this perception has to be avoided-"

A copy of the The Restatement of Values of Judicial Life is

annexed hereto as Annexu'. c lD CaSA',751|,

29. H.M Seervai in his book constitutional Law of India

has said atPage737,

" I0.7 I ....Scuruilous or abusive attacks on a judge would

shake the public confidence, and would interfere with the

odministration of iustice. But a iudge who makes public

pronouncentents which throw o grave doubt on his

impartiality, himself becomes an ffinder against the

administration of iustice. And since there is no way of

setting such a judge right except by impeachment' o
cumbrous procedure seldom resorted to, the interest
of

justice itself requires that there should be public criticism

of the impropriety of marking such public pronouncement'

Ajudgewhomakesextrajudiciatpronouncementswhich
that he lacks impartiality, departs f'o* the line
of
show

conducted dictated bY his ffice"'

 30
30. This extended discussion of the scope and limits of public
criticism of the judges yields three principles for not curtailing
such criticism. First, such a criticism must be permissible in any

democracy; citizens must be able to exercise their right to

freedom of speech. Second, it is desirable for healthy

functioning of judiciary itself; citizens should be encouraged to

perform this useful function. Thirdly, in special circumstances
where the conduct of some judges might jeopardize
independence of judiciary or its credibility in the eyes of the
public, open criticism is necessary to safeguard the constitutional

order; citizens who fail to speak up against such judicial conduct

would be failing in their fundamental duty to defend the republic.

It is my bona-fide beliel buttressed by the aforementioned
opinions of the media, commentators, lawyers and indeed former

and sitting judges of the Supreme Court, that we are going

through such a phase in the history of our republic when keeping

quiet would be dereliction of duff, especially for an officer of the

court like myself. There are moments in history when higher

principles must trump routine obligations. when saving the
constitutional order must come before personal and professional
niceties, when considerations of the present must not come in the

way for discharging our responsibility towards the future. My

tweets are nothing but a small attempt to discharge this dury at

the present juncture in the history of our republic. In this context

and without prejudice to the above, I would like to explain why I

said what I did in these tweet. Anyone may disagree with my

views but that would not render my bonafide opinion to be

contempt of court.
 3l

Tweet dated 29'h June 2020

31. The first tweet relied upon as the basis of the alleged
contempt is dated 27'h June 2020 and is as follows:

"CJI rides a 50 lakh motorcycle belonging to a BJP

leader at Raj Bhavan Nagpur, without a mask or a helmet'

at a time when he keeps the SC in Lockdown mode

denying citizens their fundamental right to access
justice!"

32. At the outset I admit that I did not notice that the bike was on

a stand and therefore wearing a helmet was not required. I

therefore regret that part of my tweet. However, I stand by the

remaining part of what I have stated in my tweet. I tweeted the

above because I was increasingly anguished by the lack of
regular physical functioning of the court that was leading to the

hearing of very few matters and that too by the unsatisfactory

mode of video conflerencing. Due to the COVID pandemic, the

subsequent lockdown and the humanitarian crisis it had created,

with the Supreme Court not functioning regularly, access to

justice was seriouslY imPeriled.

33. Even before the lockdown was announced on the 24tr' of

March, the Supreme court had suspended its regular

 32

functioning. Many urgent matters involving very urgent and

serious issues such an habeas corpus petitions in the Kashmir

context, petitions challenging the constitutionality of

Citizenship Amendment Act, petitions chalienging the

abrogation of Article 370, bail petitions, electoral bonds

mqtters etc, were not being heard because of this lack of regular

functioning since the Supreme Court had restricted its hearing '

to urgent matter only. Many government offices and

institutions in Delhi had resumed regular functioning. While

the Chief Justice who has ultimate administrative authority
over the Supreme Court was not allowing regular functioning
for four months because of the COVID pandemic, he was seen
on a motorcycle in a public place with several people around
him, without a mask. This seemed incongruous to me. The part
in my tweet about the bike costing 50 lakhs and belonging to a
BJP leader is a fact which,had been detailed by many people on

social media. The tweet was in no way intended to undermine

the dignity of the court or the office of the Chief Justice of
India. Even before the national lockdown was announced on

March 24'h, the Supreme Court issued a circular dated l3tr'

March, stating that the "functioning of the Courts shall be

restricted to urgent matters with such number of Benches as

may be found appropriale." Further by circular dated 23'd

March stated, '"The Hon'ble Benches may be constituted to

hear only matters involving extreme urgency..." A copy of the

Circulars dated 13'h March,2O2O and and 23'd March,2020 are

annexed as Annexure Ctt (t6o,l9 Screen shots of

 33

rweets dated 29.07.2020 with details of the bike registration are

annexed as Annexure

34.At the best of times, the Supreme Court had a huge backlog of
cases and with limited and difficult access for the poor' During
a pandemic with the limited court functioning, redress for the
hardship faced by the poor and marginalized, seemed even

bleaker. The lockdown of the court was causing great distress

to litigants and lawyers and a lot of people had taken a dim

view of this. It was not just my opinion that the Supreme
Courts Iimited functioning was hindering the fundamental right

to access justice, but even various associations such as the

Supreme Court Bar Association, the Bar Council of India, the

Supreme Court Advocates on Record Association and legal

observers and former judges and advocates had also passed

resolutions and written articles questioning the lockdown of the

Supreme Court and restricted hearing of selected urgent matters

only.

35. In an interview to Karan Thapar for The Wire, Justice AP

Shah, former Chief Justice of the Delhi and Madras High
Courts said he was "thoroughly disappointed" with the

Supreme Court. An excerpt from the article on the story is

below:

Differing with Chief Justice S.A. Bobde's view that,

 34
"this is nol a situation where declaration of rights has
much priority or as much importance as in other times",

Justice Shah said:

"This is not correct...(the) Court's duty is more onerous

in times of crisis."

Justice Shah also questioned,

"why only a few judges are functioning and why aren't

all judges workingfrom their homes? "

A copy of the interview dated 5'r' May 2020 is Annexed as

nnr.rur. Ct3 (fl,691

36. On the 3'd of June, 2020, the Supreme Court Bar

Association wrote to the Hon'ble Chief Justice of India with a

proposal to resume normal working of the Supreme Court,

since there was now no sign of the COVID pandemic going

away. The letter stated:

"But the challenge of COVID 19 is far from over and

there is no sign of it going away soon. It must therefore

be faced in a sensible and safe manner. But at the same

time, Court's normal functioning may begin, though in a

gradual way. Supreme Court is not just the Highest

Court of the Country, but is one of the most Respected
Institution of the Country, perhaps the most respected if I
may be permitted to say proudly. Its glory must remain

for all times, including during crisis period that we are

going through......Now that even the Government of
 35

India has allowed graded opening of the Country, I do

hope and pray that Bar's just request will indeed receive
a positive and immediate response."

A copy of the SCBA letter to the Chief Justice of India dated

3'd June 2ozois annexed as Annexu.. C l? (aA?-aEU

37. On the 20'h of July, 2020, the Supreme Court Bar

Association and supreme court Advocate-on-Record

Association held a joint meeting to discuss and examine the

systems, methods and suggestions to reopen the Courts, and in

particular, the Supreme Court of India, which has been working

on limited basis under severely constrained "virtual cottrts"

following the pandemic caused by the Corona virus. Excerpts
from the joint resolution released after the meeting are as

follows:

SCBA and SCAORA have, during the lockdown period

passed various resolutions pertaining to the

unsatisfactory functioning of the virtual hearings by the

Hon'ble Suprerne Courl as also the issues cropping up

during e-fiting. scBA and SCA)RA have stated that a
majority of the lawyers were not comfortable with the
virtual court hearings. The common feedback seems to
be that the lawyers are unable to present their coses

ffictively on the virtual ptatfurm presently

available...... The working of the Supreme Court lays

down the parameters for the subordinate courts' The
 36
limited functioning of the Supreme Court has adversely
impacted the dispensation of justice. While litigants
continue to suffer, the lawyers, who are the fficers of
the court, are alsofacing acute hardships. The Hon'ble

Supreme Court has now decided to also hear regular

final hearing matters through the virtual

matters and
medium. While it is undoubtedly the prerogative of the
Hon'ble Court to list matters for hearing, it is the
lawyers who have to argue those matters professionally.

It is not possible ,fo, o lawyer to do justice to a case if

called upon to argue on the virtual because of the

infirmities in the working of those applications esp those

involving voluminous record and/or the appearance of
the aforesaid issues that makes the hearing illusionary.
.....The resumption of court hearings of all class of
malters is imperative."

A copy of the resolution dated 20'h July 2020 is annexed as

Annexure c$ call, aEg
38. In Suo Moto writ Petition no. 8 of 2020, In Re: Financial aid
for members of bar affected by pandemic, vide order dated 22d
July 2020, the Supreme courr has itself admitted that with the

courts being closed, lawyers have been deprived of the sources

of earning their livelihood. Hence, the fact that the courts are in
"lockdown" is admitted by the Supreme Court itself,
confirming what I had stated in my tweet. The order states:
 37

"...We ere conscious of the fact that the advocales are

bound by Rules which restrict their income only to the
profession. They are not permitted to earn a livelihood
by any other meons. In such a circumstance, the closure

of the courts has deprived a sizable section of the legal

profession of income and therefore livelihood- In these

dire circumstance there is a constant demand to enable

the resumption of the income from the profession by
resuming the nornnl functioning of Courts in

congregation..."

A copy of order dated 22nd July 2020 is annexed as Annexure

Crb (l8S,aSSJ

Tweet dated 27'h June 2020

39.The second tweet relied upon as the basis for alleged contempt

is as follows:

"When historians in future look back at the last 6 years

to see how democracy has been clestroyed in Indio even

without aformal emergency, they will particularly mark

the role of the Supreme Court in this destruction, & nlore

particularly the role of the last 4 CJIs."

40.I stand by *y opinion expressed in the tweet above and will in

the succeeding paragraphs explain the basis for making such a

statement by explaining why I strongly believe that:

 38
a) democracy has been substantially destroyed during the last
six years;

b) by its acts of commissions and omissions, the Supreme

Court has allowed the emasculation of our democracy; and

c) the role played by the last four CJIs has been very critical in
the above mentioned process.

I will deal with these issues in this order

The undermining of democracy in the last six years

41. Various political scientists across the world have noted and

opined that real democracy in any country or society can be

destroyed while all the trappings and institutions and rituals of

democracy like judiciary, election commissions, regulatory

institutions, continue to exist on paper. However, these can be

I
hollowed out while retaining the trappings and vestiges of these

rights and institutions on paper. In How Democrocies Die, a

recent scholarly book, Professors of Government at Harvard

University, Dr. Daniel Ziblatt and Dr. Steven Levitsky, have

documented how democracies can die a slow death as under:

Blatant dictatorship in the form of fascism,

communism, or military rule - has disappeared across

much of the world. Military coups and other violent

v/
seizures of power are rare. Most countries hold regular

elections. Democracies still die, but by dffirent means.

aW *uqDru - tcotcowap at'otdtar o7 s1to[a so pato"qnd
aq ua^a tow ,taq1 'suno) ary tq paldacco 'to am1o1s8a1
ary tq paa,o.rddo an {aW PLlt asuas aW u! ',,p8a1,,
atD {cotcoruap ua^qns ot sTnlla ruaruutat'oB {uo1tg
'nuogqns sy &ut1o'ta)Yr.a allq,fr tco'tcowap
lo nauat. o ulotulow slDtcoruD paqayap^ lltts a1doa4
'aco1d ut uruwil suouruUSut )tlDt)owap {11ourwou
,taqrc puo suountltsuo3 'gaa4s aql ut $luDl ou ato a'taqJ
'uaddoq sBulqt asaqt lo auou 'poot lD"tol)ala aLfl uO
'paddotcs rc papuadsns st uounlusuu aqJ
'ailxa oW.[o paddlqs n pauosttdwt 'pa11pl s! ruaprsatd
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 40
judiciary more efficient, combating coruuption or
cleaning up the electoral process.

Newspapers still publish bttt are bought off o, bullied

into self-censorship. Citizens continue to criticize the

government but often find themselves facing tax or other

legal troubles. This sows public confusion. People do not

immediately realize what is happening. Man1, continue to

believe they are living under a democracy.

Because there ,s no single moment no coup,

declaration of martial law, or suspension of the
constitution - in which the regime obviously "crosses the
line" into dictatorship, nothing may set off society's
alarm bells. Those who denounce government abuse mav

be dismissed as exaggerating or crying wolf.

Democracy's erosion is, for many, almost imperceptible.

*.*X*'l<

Institutions alone are not enough to rein in elected

outocrats. Constitutions must be de.fended - by political
parties and organized citi:ens hut also bv democratic
norms. Withoul robust nornts, constitutional c:hecks and
balances do not serve as the bulwarks of democroc)t ytg

imagine them to be. Institutions become political

 4t
u,eapons, v,ielded .forcefitlly by those who control them

ogainsl those w'ho do not.

This is hotv elected aulocrats subvert democracl' -

packing antl "v,euponizirtg" lhe courts and other neutrol

agencies, huting off the media and the private sector (or

bullying them into silence) and rewriting the rules of

politics to tilt the ploying field against opponents. The

tragic parodox of the electorql route lo authoritarianism

is that democrac.y's llss4.rsins use the very instittttions of

tlentocrucv - gradttalb', subtl.v, and even legally - to kill
it

A copy of the article published by Dr. Daniel Ziblatt and Dr.

Steven Levitsky in The Guardian dated 21.01.2018 is annexed

heretoasAnnexr'. Cr? (&8 lA74

42.This picture of the death of democracy very much fits what we

present
have witnessed in India. Over the last 6 years under the

government, our country has witnessed a systematic

dismantling of democracy in favour of electoral

authoritarianism. Democracy is not just a rule of elected

democratic
majoriry. A rule by elected majoriry can be called

onlywhenthemajorityisconstrainedbySomebasicrulesof
thegame'TheseConstitutionprovisionspreventthemajority
fromdoingwhateveritmightwishtodothroughtwodevices.
one,therearesomeinviolablerightsofthecitizensthata
 42
government cannot take away. Two, the political majority must

exercise its powers through well established procedures and

institutions that cannot be bypassed. The last six years have
witnessed dismantling of both the constitutional rights and the

constifutionally mandated arrangement of autonomous

institutions. As a result majority rule has become a

majoritarian rule; electoral democracy has degenerated into

electoral authoritarianism described by the authors of '.How
Democracies Die".

43.Though the Superior Courts especially the Supreme Court have

been entrusted with the responsibility by our constitution to

safeguard democracy and our fundamental rights and ensure

proper functioning of regulatory institutions, it can be seen that

in the last six years as the spirit of democracy was being

extinguished in this country by throttling of fundamental rights

and transgressions of delineated powers by the executive and

legislature and subverting of our institutions, the Supreme
Court largely failed in it's dury ro protect these and thus failed
to prevent the subversion of our democracy as we will see.

However, before dealing with the action and inaction of the

Supreme Court on these aspects, I will first advert to the
systematic dismantling of democracy by the executive and
Iegislature in the past six years.

Erosion of rights:
 43

44. Freedom of speech and right to dissent - During these

years we have seen an unprecedented assault on the freedom of
speech and the right to dissent. Persons critical of the

government have been assaulted on the streets by lynch mobs

which are patronised by the government and a complicit police;

in many cases they have been charged with sedition, despite the
fact that the Supreme Court had injuncted the use of this law
for a situation where there is no incitement to violence or

public disorder. Those who escape the lynch mobs or sedition

charges have had to face the wrath of an organised lynch mob

on the social media. This abuse is also sometimes picked up

and amplified by the sections of the mainstream media which

have become mouthpieces of the government. Dalits and

minorities have especially borne the brunt of lynch mobs who

are confident that the government and police will not act
against them. Documentation of cases of lynchings have shown

three stark facts. Firstly, almost all of the hundreds of cases of

mob lynching has been directed against muslims and dalits
Secondly, that in almost all cases, the perpetrators are
associated with assorted saffron groups who are connected with

the BJP/RSS or at least enjoy their protection and that of the

governments run by the BJP. Thirdly, that the police rarely act

against the perpetrators unless compelled to by courts and often

act against the victims themselves.

45. Minority rights are essential to any political system that

calls itself democratic. Over the last six years, however, the
constitutional rights of the religious minorities have been
 44
systematically eroded, reducing them, especially the Muslims,

to the de-facto status of second rate citizenship. Much of this

erosion took place through informal practices of exclusion and

discrimination by the state and a campaign of disinformation

and hatred by theruling party and its affiliates. False

information or fake news which is designed to generate hate

against Muslims in particular, is being generated and spread on

a mammoth scale by the social media organisation affiliated

with the BJP and its assorted lapdog media. This has created a

feeling of hopelessness and helplessness among large sections

of minorities in parlicular, as well as dalits, especially when

they see the administration including the judicial administration

being reduced to bystanders. The use of draconian laws like

UAPA and NSA particularly on hapless sections of minorities
and Dalits has accentuated the injustice and the climate of fear

among them. This lowering of the qualiry of citizenship was

formalized by the Citizenship (Amendment) Act passed by the
parliament in December 2019. By introducing religion as a

category for consideration of citizenship and by excluding

Muslims from neighboring countries from fast-track

citizenship, this Act has dealt a body-blow to the principle of

equal citizenship and non-discrimination against minorities.

46.Dismantling of rights is now being extended to the right to life

itself. Recently, the Delhi Police in the guise of investigating
riots which took place in Delhi after three months of exemplary
peaceful protests against the Citizenship Amendment Act, has

turned the investigation itself into a conspiracy to target

 45

peaceful activists and protestors, in the guise of an

investigation. This has been achieved by a) ignoring complaints

against goons and police officers who are seen on video

violently assaulting people; b) letting off leaders of the BJP
who are seen on video clearly instigating mobs to violence; and

c) arresting or charging innocent and peaceful protestors who

can be seen on video calling for peace and non violence. The

same police also entered the Jamia campus and brutally beat up

students, even those who were in the library. They even

smashed CCTV cameras to hide the evidence. No police officer

has been brought to book for that brutal assault on Jamia. On

the other hand. innocent and peaceful students have been

charged under the draconian UAPA.

4T.Violence against religious minorities and socially marginalized

groups has been extended to ideological dissenters as well. On

5,r, January this year, a mob of armed goons were allowed to

enter JNU under the gaze of the Delhi Police. They went on a

rampage, beating up students and teachers inside the campus.

Yet despite many of them being identified on video, no action

has been taken against them or against the police officers who

virtually escorted them in and out of the campus. Without any

fear of the courts, the police has not been bothered to complete

an inquiry into this incident.

48.For the citizens of Jammu and Kashmir, even the pretence of

democracy has been given up. The parliament did away with

the special status of the state of Jammu and Kashmir without

 46
the constitutionally mandated consent from the Constituent
Assembly of the state. Overnight, the state was split and
converted into a union territory without any consultation with

its people or their elected representatives. For one year now,

the people of Jammu and Kashmir, especially those living in
theKashmir valley, are forced to live without elementary
democratic rights, while their former Chief Minister is

imprisoned without trial.

49.There is a serious erosion in social and economic rights of the

people. The condition of the poor and the marginalised has

worsened with massive unemployment and job loss in the last

six years and increasing agrarian distress. The economic

distress has been hugely aggravated by the unplanned and
brutal lockdown due to the Covid crisis. It has led to the loss of
more than l0 crore jobs, sudden loss of livelihoods and decline

ln tnconte

Assault on institu tions

50.A democracy constrains unbridled majority rule by mandating

a procedurethrough which power must be exercised. Our

constitution provides for an architecture of autonomous

institutions that can keep the elected executive in check. The

most serious assault over the last six years, an assault with long

lasting effect on our Republic, has however been on our

institutions. These include Constitutional bodies like the
Election Commission, the CAG as well as statutory bodies like
 47

the cvc, the cBI, Lokpal, and also universities and other
educational institutions and bodies'

51.For the first time in more than three decades, fingers are being

pointed at the independence of the Election Commission and

the CAG. We have seen a sharp erosion of the independence of

the Election Commission and now we find that important

decisions of the E,lection Commission, especially the
announcement of dates of elections and the enforcement of its
model code of conduct are increasingly partisan and virtually
decided by the government. Officers from Gujarat who are said

to have been close to the Prime Minster and Home Minister,

Amit Shah, have been appointed to the Election Commission.
It is because of the erosion of public confidence in the
independence of the Election commission that people have
become very nervous about the integrityof the electronic
voting machines; and there is now therefore a persistent
demand especially by the opposition to go back to paper

ballots

influenced
S2.Elections in the last six years are being increasingly

by money power. This is partty because the Election

on spending by
commission has failed to enforce the limits
politicalparties'Butalsobecausepartiesandcandidateshave
their corporate
begun to get unlimited amounts of money from

cronies. Apart rrom not fixing limits

for spending by political

parties and not making laws to ensure

that parties and
only through banking
candidates receive and spend money
 48
channels (cashless transactions which the pM wanted to impose

on the country through demonetisation), three retrograde

changes in the law of election funding have increased the role

of money power and corporate hijacking of elections. The

Foreign Contribution Regulation Act brought primariry to
prevent parties, candidates and public servants from getting and

being influenced by foreign funds, has now been amended to

allow parties to receive foreign funds through subsidiaries of
foreign companies. The limits on corporate donations to parties
and candidates, which was earlier 7.5oh of their profits, has

been removed to allow unlimited corporate funding. worst of

all, a new anonymous instrument of political funding has been

introduced through the instrument of electoral bonds, which are

bearer bonds and which allow anonymous funding of political

parties even through banking channels. Thus the path has been

cleared for payment of bribes by corporations to the ruling

parties through the device of electoral bonds which guarantee

the anonymity of their donors. It is not surprising therefore that

the BJP has received more thang0o/o of the thousands of crores

of funding through electoral bonds in the last 3 years since they

have been introduced.

53.All the above amendments of electoral funding which have

been achieved by the dubious device of smuggring
these
amendments in through a Finance Bi[ which avoids the
amendments being taken to and voted in the Rajya sabha,
where the ruling party didn't have a majority.
The device of
money Bill to bring about amendments to
various laws which
 49

have nothing to do with the Consolidated fund of India, has

been increasingly resorted to by the present government,
making a mockery of the Constitutional requirement of bills
being passed by both Houses of parliament.

S4.Parliament itself has seen a steady erosion in the quality of its

deliberations. Critical laws and Constitutional amendments

have been passed in a few hours, if not minutes. The institution

of parliamentary committees has also been virtually done away

with, with fewer and fewer proposed laws being referred to
them, where healthy discussion and public consultation could
take place. Thus, fat from making democracy more

participatory, even in terms of allowing prior disclosure of Bilts

proposed to be passed or allowin g any public participation in

the laws to be made, even the present nominal representative

democracy has been steadily emasculated'

predicted in
55.1n the audit of the Rafale contract, the government

a note given to the supreme court, three months before

the

CAG report was finalised, that the report would redact

the

detailsofpricing.Thisindeedhappenedthreemonthslater
when the cAG report on the Rafale purchase was finalised and

giventothePAC.TheredactionofpricingdetailsfromaCAG
reportisnotmerelyunprecedented,itiscontrarytotheCAG
ActwhichrequirestheentirereporttothesenttothePACand
knew three
tabled in Parliament. The fact that the government
monthsinadvancethattheCAGwouldbowtothisillegal
details from its
demand of the government to redact pricing
 50
report, demonstrates the extent to which the independence of
the CAG has been compromised by the government.

56.Despite the Lokpal Act being passed, for many years the
appointment of a lokpal had been steadily stonewalled and
even the inclusion of the leader of opposition in the selection

panel of the Lokpal had been obstructed by this government. It

also amended the Lokpal Act with alacrity to exempt public

servants from making their asset disclosures to the government.

Thereafter, even when the government was forced to appoint a

Lokpal, it has appointed people who have not taken up even a

single case for investigation for over a year now. This has made

the institution totally ineffective. Also, for more than six years,
the whistleblower Act has not been notified. Instead, an
amendment has been brought to the Act which will completely
stulti$r the law. The amendment says that any whistleblower
who provides any more information about corruption in the
government than what an ordinary citizen can obtain under the

Right to Information Act, would rose his protection as a

whistleblower and would be liable to be prosecuted under the

official secrets Act. Instead of repealing this colonial official

Secrets Act, this government now threatens to use it against

journalists who have published documents exposing the

corruption, violation of rules and the interference of the pMo
in the Rafale contract. Apart from using the official secrets
Acts, this government and its officers have also sought to \./
use
contempt of court as a weapon to intimidate activists and
silence criticism of the government.
 5l

57.There has been a decline in the independence of the CBI' When

a cBI Director, whose tenure was protected, threatened to

investigate the Rafale contract, he was outsed in a midnight

coup by the government and one Nageshwar Rao was

appointed as Acting Director, who affected 40 transfers in the

CBI within a day, at the behest of the government. The Central

vigilance commission was for years headed by an officer who
played a key role in suppressing incriminating documents

recovered in the raids on the Sahara and the Birla Group of

companies which showed the PM and other BJP Chief

Ministers as recipients of large sums of unaccounted cash'
Another gentleman appointed as vigilance commissioner had

been indicted by the CVC itself for having fabricated

the

bank of
confidential report of his subordinate senior officer of a
which he was Chairman, with the object of destroying the

career of that officer.

a particularly
Sg.The National Investigation Agency has become
and hounding
favoured tool of the government for harassing

activistswhoarecriticalofthegovernment.TheNlAhasbeen
usedtoframesomeofthecountry,sfinesthumanrights
activists.ThepoliticaluseoftheNlAcanbeseenfromthefact
thattheBhimaKoregaoncase,inwhichSomeofourleading
humanrightsactivistshavebeentargetedandwhichwasearlier
beinghandledbythePunepolice,wastransferredtotheNlA
by the Central government soon after a new
non BJP

government was formed in Maharashtra'

 I
52 t
1

59.During the last six years, the Right to Information Act has been

eroded by throttling the Information commissions and not

filling the vacancies in the commission. Even when the
vacancies are directed to be filled by court orders, pliable
bureaucrats have been appointed without any transparency in

the selection.

60.Decline in financial regulatory institutions has meant that crony

capitalism has grown enormously, with policies being
increasingly controlled by large crony capitalists who ensure

that policies and government decisions are tailored for their

economic benefit and to the detriment of the common people.

our banks and financial institutions have been plundered by

these crony corporates who now owe lakhs of crores of unpaid

debt to our banks. Many of them have been allowed or made to

flee the country and have comfortably ensconced themselves in

London or tax havens like Antigua or Bermuda, while our

government makes a show of searching for them, or seeking to

extradite them. The Reserve Bank's independence has also

been greatly eroded. Raghuram.Rajan was shunted out
as the
RBI Governor when he disagreed with the government on
several critical aspects and in particular wrote to the
government about investigating and taking action
against many
high nefworth individuals who had taken huge loans
from
banks and constituted a high flight risk. His successor
urijit
Patel' was shunted out after he disagreed with
the government,s
 53

desire to appropriate more than one lakh crores from the RBIs

reserves

6l.Universities and educational institutions and regulatory bodies

have particularly been in the cross hairs of this government.
Virtually every appointment of Vice Chancellors in universities
have been made of people who are associated with the RSS or

have been close confidants of the present rulers. Thus many

appointments of Vice Chancellors as well as other educational

regulatory bodies have been of people who have no academic

stature suitable for their jobs but have been placed there only

due to their saffron links. Such persons have systematically not

only crushed dissent but also dismantled the spirit of inquiry

and critical thinking in these educational institutions'

Suggestions have been made by these persons to put up tanks

in the premises of their universities to instill "nationalism"

among students. Some of our finest universities like JNU,
BHU, Hyderabad university has especially borne the brunt of
this assault.

media is
62.The subversion of the independence of the mainstream
press censorship'
near complete even in the absence of formal
to
More than gooh of the mainstream media has been reduced
going to
becoming the propaganda arm of the government'

absurdlengthstojustiffactionsofthegovernmentwhichare
otherwisetotallyunjustifiable'someexamplesofthishasbeen
demonetisation, the
the coverage of the disastrous decision for

disastrousandbrutallockdowninthenameofCovid,aswellas
 54
the government's response to China's incursions into Ladakh.
Prime Time debates on most TV channels are not very subtle
attempts to fan anti Muslim prejudice among people, in line
with the ruling party's agenda and its social media campaign.
Fake news has become the order of the day. So much so, that a

new term, 'Whatsapp university' has been coined to refer to

people who derive their information from Whatsapp forwards,

which propagate falsehoods and outright fabrications,

particularly in aid of fanning anti-Muslim prejudice. The
submission of much of the mainstream media to the

government has been brought about by a combination of

inducements, threats, as well as media capture through crony

capitalists. Many media organisations have come to be owned

by businessmen who have various corporate interests and can

easily be brought to heel and do the governments bidding by
means of government incentives and disincentives, by way of
plum contracts and threats of being victimized by the
govemment's investigative agencies like the CBI, ED, Income

Tax Department, etc. others are bought by being given l00s of

crores of government advertisements as well as packets which

are supposed to go regularly to influential anchors and editors.

There are only a few in the mainstream media who have

refused to succumb to such inducements and threats or
corporate capture by crony capitalists. The government seeks
to
extend its control over social media and internet media as well

by threatening individual journalists and editors with FIRs of

sedition, threatening and putting pressure on those
few
independent trusts that fund some of these internet media
 55

organizations, as well as by influencing and bringing to heel,

major social media platforms like Facebook, Twitter, Instagram

etc

Role of the supreme court and the last four cJIs over the
past six Years

pivotal
63.1n our constitution, the judiciary has been assigned the

role of being the guardian of the constitution and fundamental

rights of the people. It has been bestowed with a great deal of
independence and is expected to check the executive and the

legislature when they transgress the bounds of their powers

and

in particular when their actions violate fundamental rights of

the citizens. It is the judiciary which is also expected
to play a

critical role in ensuring the proper functioning of other

regulatoryinstitutionssuchastheElectionCommission,CAG,
has played a
CVC, CBI, RBI, etc. In fact, our Supreme Court
glorious role in safeguarding our democracy and our

the scope of
institutions and protecting and expanding
fundamental rights over the last 70 years
of it's existence

64,ThatthisHon,bleCourthasheldthattheedificeofour
constitutionenvisagesandpromotes.participative'democracy
andsuchparticipationofthecitizenryisessentialtoensurethe
survivalandpromotionofdemocracticvaluesinthecountry.
 56
Freedom of speech & expression guaranteed to each citizen
under Article 19(l)(a) is the most robust check on errors of
omissions and commissions committed by various institutions

that are creatures of the constitution; be it the Executive, the

Legislature, or for rhat matter the Judiciary. The judiciary has

been assigned the drty to ensure that no one institution

transgresses its constitutional bounds or constitutional moraliry.

65.The role of the Supreme court in allowing this suspension of

democracy during the emergency is well documented. For the

citizenry at large, ADM Jabalpur, continues to be a haunting

reminder of how the supreme court meekly surrendered to the

executive and failed to protect constitutional values and

fundamental rights of the citizens (Justice Khanna,s hon,ble
dissent apart). It has been said that institutions are as strong as

the people manning them and ADM Jabarpur is a stark

reminder that in the face of pressure from the executive
otherwise good judges arso succumb to the power of the
executive and abdicate their responsibilities to protect the
rights
of citizen s. ADM Jabalpur reminds us how rearned judges can
justisr the unjustifiabre through convoruted reasoning
and
legalese. ADM Jabalpur reminds us how judges
under pressure
are capable through convoruted reasoning and legarese
of
replacing Rule o/ Law with Rure 6.v Law.
It is a matter of
historical record that it was not the institutions
and the erudite
and learned peopre manning them that
stood up for the
Constitution and it's democratic varues but ordinary citizens
who fought for their democractic rights.
 51

66.Once again over the last six years, we have seen a striking
decline in the role of the Supreme Court as being the guardian
of the constitution and rights of people. This of course is my
bonafide opinion which people can and may disagree with. In

any healthy democracy, there needs to be a free and frank

discussion about the role of any and every institution,
especially an institution as critical as the Supreme Court.

6T.Particularly during the term period of last 4 CJIs, the country

has seen abdication by the Supreme Court of its constitutional

duty to protect basic constitutional values, fundamental rights

of citizens and the Rule of Law. At a time when the country
witnessed an assault on all democratic norms, liberry of

citizens, and the secular fabric, the Supreme court by

various

acts of omission and commission acted in a manner

that

allowed the majoritarian executive at the centre to

trample

rights of citizens, It seems that basic

judicial checks
upon the

thatmustbeinplacebeforeapowerfulexecutivewere
completelymissing.Thecourtsurrenderedwhileryrannyand
majoritarianismgainedadeepfootholdinthecountry.All
theseegregiousassaultsoncivilrightsandoninstitutionshave
beenallowedtogothrough,withoutanyaccountability,under
thebenigngazeofthesupremeCourt.Itisinthispolitical
climatethatmostindependentregulatoryinstitutionshave
been able to
capsized and even the Supreme Court has not
of the government'
stand up as a check on the excesses
 58
68.There has been a concerted attempt by this government to
erode the independence of the Judiciary. Even after the attempt

to bring back the executive into the role of serecting judges

through the Judicial Appointments commission was scuttled
by the supreme court, we have seen this governmentbrazenly
scuttling appointments of judges recommended by the
collegium, by just sitting on those names that it finds
inconvenient; in particular, recommendations of judges from
amongst minority communities. Apart from sitting for years on

hundreds of recommendations, they have even refused to

appoint inconvenient judges whose appointments have been
reiterated repeatedly by the SC collegiums, in gross violation of
the law.

69. Justice Madan Lokur, former Judge of the supreme court,

in an article in the Indian Express wrote on the manner in
which the government was brocking appointments
recommended by the collegiums:

"As recently as in late August, the Economic Times

reported that the cJI had written to rhe law minister that
43 recommendations made by the collegium were
pending with the government and the vacancies
in the
high courts were to the extent of about 3z per
cent. Arso,
the collegium could not consider the appointment
of l0
persons since some information was
awaited from the
'ft1y au1sry aq osp plnoc) uorlo.taptsuoc tapun sa*pn[
aW auo TsutoSo slutoldwoc alEssod (trt) ,s1uaw7pnf
to
sry apnp^a q saZpnt to aailrutwo) ary to podat (r)
'unoJ q8ry pDqoqoily ary lo s.uo,[o aW WlM tuDsra^uoc
)S aLtl to sa8pnf to uotudo ary ft) Suuaptsuoc ntto
apDul sod4, uoryopuawmo)il aLlJ 'UnoJ qBrH pDqoqoilv
aql to aBpn! ruaupwtad D apzru aq UV poqs"q aeusnf
ruqt papuawwocil wruZa11oc aLil 'g nqwa1dag uO
2tDn{ng .tot apotms awo)aq aq pry Moq
'qsapztd o.u4puyto au1snttarp aW sD ruau,uuroddo nt
alqDunsun n 1g[un som a&pnf ary fi 'pasol)stp an ,tary 11
uoryruusut ary to lsa.,tarut aW u! aq Quru1tn plnow I puo
uturowl pu aro a1{ ary w pavcryut suosoat aqJ 'Lttxo)
qBW lonfng ary lo acqsnf larry aW sD luauuroddo
sry papuaututo)il puD ,,a$ ary ut pavrryut suosoat
aql rc!,, uotlopuarutttocil aW paaptsuo)il utn8aloc
aLil 'ZZ Tsn*ny uO 'uottorapsuo)a't nt uollopualuruoJat
ary )lcoq pattalat Tuaruutaa'oB aW 'Dlol aauawos
t.mo) q*ry qsapDtd oqpuv ary to aulsn{ taryc aqt
aql
sD uno) qBW poqDqDilV ary lo aBpn[ $oa-totuas
'qto^l wofi1l nusnf
lo pawluroddo aW papualuruo)a't
'suousanb atout awos
wru*a11oc ary 'g t!ilV uO
4luzututottoS aqt -
srlqs aqt 3u171oc $ oqful 'spottad Sutt"tod' nt uaruu'tato8
6S
 60
(iv) additional information received from the chief
justice of the Allahabad High Court and (v) observotions
of the Department of Justice and (vi) en overall
assessmenL whot did the government do? It rejected the
recommendation (without furnishing any reason or
justification) and on september 20 extended his term
as
an additional judge by six months. Did anybody protest?

Justice Akil Kureshi, the senior_most judge of the

Gujarat High Court, was recotnntended on May r 0 to be

the Chief Justice of the Madhya pradesh High Court

after considering all rerevant factors and being
found
suitable in all respects. Guess u,hat? The government
sent two communications to the CJI on August 23
and 27
along with some materiar. on reconsideration of the
communications and the material, the collegium
modified its recommendation on September 5 and
recommended his appointment os the Chief Justice
of the
Tripura High Court. Again, the contents of the
communications and the accompanying material are
not
known. Is there something so terribly secret about thent

that it would not be in the interest of the institution to

make a disclosure? As in the case of Justice vilcram

Nath, it would be worth asking how Justice Kureshi is fit

or suitable for appointment as the chief Justice of the
Tripura High court and not of the Andhra prodesh High
Court. Have we not often heard the sC say that sunrighr
 6l
is the best disinfectant? And then, electric light the most
eficient policeman? More than a month has gone by and
even this recommendation has not been acted upon by
the government. AnY Protest? "

A copy of the article dated l6th october, 2019, titled,

,,Collegium's octions show that the l,{JAc which was struck

four years ago is back, with a vengeance" is annexed

as
down

Annexure Ofu(L$-34S)

70.The assault on the judiciary has led to the Supreme Court

having virtually collapsed and it has once again failed to act as

the guardian of the Constitution and custodian of fundamental

rights of the people. Thus even habeas corpus petitions and the

challenge to the lockdown and denial of internet in Kashmir

were not heard for months. Even when they were heard, they

were frequently adjourned without any substantive relief.

The

on
Supreme Court also turned a deaf ear to the serious assault

Jamia and JNU. A new jurisprudence of sealed covers was

evolved, to allow the court to accept and act upon
unsigned

handed over by the government to the court,

without even
notes

beingshowntotheoppositeparty,ingrossviolationofnatural
justice.ThissealedcoverjurisprudenceallowedtheSupreme
Courttoputthelidonthecaseinvolvingthemysteriousdeath
ofJudgeLoya,whowastryingShriAmitShahforconspiracy
tomurder.ItalsoallowedthemtoputthelidontheRafale
defence scam. It was used extensively in the case monitoring
thecreationoftheNationalRegisterofCitizensinAssam'
 62

71.The deference of the Supreme Court to the government could

however be seen most starkly during the lockdown, when the

cases involving the violation of rights of the migrant labour
came up and the court just deferred to the governments wisdom

without even seriously examining the violation of the rights of

these people, leading to their destitution, starvation, and forcing

them to walk back home, sometimes thousands of kilometres.

In all these hearings, curiously, the Solicitor General Tushar

Mehta, who has become the governments point-man for all

such politically sensitive cases, was allowed to be present -
even without a court notice to the government or the filing of a

caveat by the government; all in violation of rules. often, the

court had copies of notes and a report handed over by the

Solicitor General, without any other parties having access to it
and which often formed the basis of the orders of the court in

these cases.

72.Here is an example of a few cases, where either by omission or

commission, the supreme court during the tenure of the last

four cJIs allowed the Government to have its way in my
opinion and other practitioners of law.

Tenure of (Retd.) Hon,ble Chief Justice Kehar

Sahara Birla case

73.1n october 2013, the income tax (rr) department and the
Central Bureau of Investigation conducted simultaneous
raids
 63

at various establishments of the Aditya Birla group of

companies. In these raids, cash worth Rs 25 crore was
recovered from their corporate office in Delhi along with a

large number of documents, note-Sheets, informal account

books, emails, computer hard disks and the like. The cBI
quickly handed all the papers over to the IT department, which
did an investigation in this matter. The department questioned
the DGM accounts, Anand Saxena, who was the custodian of
the cash which was recovered. He said that the cash was
received by the company from various hawala dealers, who
used to come almost daily or sometimes on alternate days and

give Rs 50 lakhs or I crore in cash. The IT department also

questioned one such hawala dealer whom Anand Saxena had

mentioned, and this dealer also admitted that he had been doing

that.

to
74.Saxena also said that this cash would thereafter be delivered

certain persons, specified by the group president' Shubhendu

Amitabh. And apart from himself, four other senior officer -

whom he named - were deputed to deliver the cash.
Saxena

the cash
further said that he did not know the purpose behind
payments to those Persons'

received and payments

75.Some of the documents noting the cash

made were in the handwriting of Anand Saxena' which

indicatedRsT.5crorespaidtotheministryofenvironment,
withthenotingof..(ProjectJ)',scribblednexttotheentry.The
payments for
documents also showed various other
 64
environmental clearances of Birla projects. The dates of these

payments could easily be correlated with the environmental

clearances obtained for these projects.

76.The emails recovered from the computer of shubhendu

Amitabh revealed a number of messages which indicated
payments to various DRI (Directorate of Revenue Intelligence)

officials for the purpose of slowing down/dropping

investigations, which the agency was conducting against the

under-invoicing of coal exports and other irregularities by the

Birla group of companies.

TT.Amitabh's emails also contained one cryptic entry which said

"Gujarat CM 25 crores (12 paid rest ?),,.

78.The IT department then prepared a detailed appraisal report in

which it concluded that the explanations given by Shubhendu
Amitabh about the various payments etc. were not believable
and that this matter needs to be further investigated.
unfortunately however, the department did not send the matter
to the central Bureau of Investigation for investigation under
the Prevention of corruption Act
- even though the payments
to DRI officials, the environment ministry and ,Gujarat cM,
etc prima facie, ail appeared to have been made to pubric
servants, which constitute offences under the prevention
of
corruption Act. The cBI wourd have been the designated
investigating agency for this investigation.
 65

79.1t is not surprising that the UPA government of Manmohan

Singh - which was in power when the Birla raid and recoveries

took place - did not have this matter pursued, because most of

the payments mentioned in the diaries were for officials of the

UPA government. However' even after coming to power, the
present government, which obviously was in the know of this

IT department investigation, did not pursue the matter. Prime

Minister in his election rallies at several times mentioned the

"Jayanti tox", which had to be paid by companies for
environmental clearances to then environment minister, Jayanti

Natarajan. And any investigation of the recovered papers from

Birla would have substantiated that. The reason for present

government,s reluctance to probe the Birla papers can only be

affributed to that one entry - of 'Gujarat CM' for 25 crores -

which any reasonable person would assume referred to him, for

he was the 'Gujarat cM' at the time the Birla people made their

nottng.

g0.ln Novembe r 2014, while the Modi government was in office,

thelTdepartmentraidedthesaharagroupofcompanies.In
this raid, Rs 137 crore in cash was recovered from the
and
corporate office, along with several computer spreadsheets
payments
note sheets. These recovered documents also showed
mentioned
made to public servants. one particular spreadsheet
of
in detail the dates, amounts and sources from which a total
Rs 1 15 crore in cash was received during the year 2013
to

the transactions being on 40 to 50 different days'

on
zll4,with
(Rs I l3 crore
the other side was the disbursement of this cash
 66
out of this 1 15 crore, to be precise) to various people. The
disbursement details were consummate and exhaustive as they

contained the dates, the amounts, the person who was paid the

cash, the place where it was paid as well as the person who
went and delivered the cash. In this spreadsheet, the largest
recipient with nine entries against his name was 'Gujarat cM
Modi Ji'. As per the entries, he was paid a total of Rs 40 crore
in nine instalments. The second biggest recipient was the
Madhya Pradesh chief minister Shivraj Singh chouhan, with
Rs l0 crore on two dates. There are also payments of Rs 4
crore to the chhattisgarh chief minister and a payment of Rs I

crore to the Delhi chief minister (who was Sheila Dixit at rhat

time), among other people. other recovered note sheets contain

details of payments made in2010 to various persons.

8l.Each of these documents was seized and signed by the IT

officials, two witnesses and an officer of Sahara. However,
again, despite the highly incriminating nature of these
documents, the IT depar-tment, shockingly, did not hand these
over for investigation to the cBI under the prevention of
Corruption Act.

82.The sahara company had moved the Settlement Commission

for settling the case with the IT department under Section 245c
of the Income Tax Act. one of the issues before the Settlement
Commission was whether or not the payments mentioned in
the spreadsheets should be added to the income of Sahara as
undisclosed income. The IT department in its statement said
 67

that these payments were clearly genuine since (a) these were
accounts maintained over a period of time, (b) that the cash

received shown in the spreadsheets matched with the ledger

Company
entries of MarCom - the Marketing Communication
of Sahara. This meant that the dates on which cash was
withdrawn from MarCom matched the dates and amounts on
which the cash is seemed to be received on these spreadsheets
-
from MarCom. And (c) that the explanations given by Sahara
which sought to question the validity of these documents -
were contradictory and did not appear to be correct'

83.1t was clear, therefore, that Sahara had not come with clean

hands and yet the Settlement Commission absolved Sahara of

all criminal liabilities under the Income Tax Act by asking the
company to pay tax of a thousand odd crore rupees on their
concealed income.

g4.Even more interestingly, this case was decided by the

Settlement Commission in record time - in virtually three

hearings in less than three months, with the ruling coming on

November 10, 2016. It was also settled by just two members of

the commission since the third member had been transferred
out by the government.

85.These documents showed prima flacie offences under the

Prevention Of Corruption Act, which needed a thorough
investigation in accordance with the Supreme Court judgement

of the Jain hawala case, where the recovery of cryptic entries in

 68
a diary - which only mentioned initiars and amounts paid
- was
held by the Supreme court to be enough to merit a thorough
court-monitored investigation It is another matter that despite
this ruling, the CBI in its investigation into the Jain diaries did
not examine the assets of the public servants involved and filed
the chargesheet only on the basis of the diaries recovered and
thereafter this chargesheet was quashed by the Delhi high court

on the grounds that diaries by themselves cannot be enough

evidence for prosecuting anybody.

86.The person in charge of the income tax investigations was K.

v. chowdary, who, at the rerevant period was hording the
charge of member, investigations, in the IT department. In June

2015, he was appointed by the present government as the

country's chief vigilance Commissioner
(cvc). This
appointment was challenged by common cause in the
supreme court on various grounds of scuttling tax
investigations and also being involved in the ,.stock Guru,,
scam, in which IT officials working under him were found to
have taken crores in bribes from stock Guru company in return

for favours from the IT investigation department.

87. The Birla-Sahara papers issue was raised in the pending case

challenging the appointment of chowdary itself, since the IT

department's decision to withhold these documents and not
send them to the cBI for criminal investigation constituted a

serious dereliction of duty on Chowdary's part.

 69

88.This application was heard in the Supreme Court on November

26, 2016 by a bench of Justice J.S. Khehar and Justice Arun
Mishra.

89.1n the hearing Justice Khehar said that these documents do

not

constitute any evidence for investigation and asked us to come

back with beffer evidence. Just before the next date of hearing,

three volume Income Tax appraisal report was received by

petitioners from the Birla case and on that date it was pleaded

with the court that petitioners should be given more time to

analyse the appraisal report and file it as additional evidence'

The court was reluctant to grant additional time and put up the

matter to be heard only two days thereafter. By this time,

however, the appointment of a new Chief Justice was coming

close. Justice Khehar was the next in line of seniority but the

clearance of his name had still not been given by the

government despite his name having been recommended by

the outgoing Chief Justice. It was submitted by me in the

hearing that it would not be appropriate for the bench to push

through with the hearing of this matter at a time when Justice
Khehar's appointment file is pending with the prime minister,

since this case also involved investigations into the payments

made to the prime minister as well. After showing some

resentment and anger, the court reluctantly adjourned the

matter to January 11,2017.

g0.Justice Khehar was sworn in as chief justice on January 4,

2017. On January ll, 2017, two senior judges who would

 70
normally have headed benches in the Supreme court were
made to sit with even more senior judges and a new bench was

created headed by Justice Arun Mishra (who would not

otherwise be heading a bench), with Justice Amitava Roy as

the puisne judge. The Birla-sahara matter was sent to this

bench. The judges heard the matter at some length, and finally

dismissed the case saying that since these were not regular
books of accounts, therefore, in accordance with the Supreme

court judgement in the Jain hawara case, these did not

constitute evidence on the basis of which any investigation
could be ordered. In particular, rhey said that high
constitutional functionaries cannot be subject to investigation
on the basis of such loose papers. They also used the order of
the settlement commission to say that the Settlement
commission did not find any proof of these documents being
genuine and hence they did not represent the true state of
affairs.

91. Supreme court senior Advocate and scBA president Mr.

Dushyant Dave in his article, dated 14.02.2017, titled,,The
supreme court Needs to Reconsider lts Judgment in the
sahara-Birla Case ", published by The wire rightly stated as

follows:

"Justice Mishra's judgment is based on two

findings.
First, that the Settlement Commission has called the
Birla-Sahara documents "doubtful" and second, that
they are of no evidentiary value either because they were
 7t
contained as electronic records or not as regular books

of accounts. On both counts, with greatest respect, the

judgment suffers .fro* serious legal infirmities by

ignoring the fact that the contents of electronic records

are admissible under the Evidence Act without further
proof of the original and that Section l32G) and (4A) of
the Income Tax Act, read with section 79 of the Evidence

Act, create the legal presumption of such documents as

"belonging to the person .fro* whom they are seized"

and "to be true" and make statements made in respect of

such documents in in'pestigation as evidence' The

Supreme Court has itself - inPor,ru,, il'lal v' Direc:lttr oJ'

lrrspe.ctiorr and ITO t'. Seth Bro,s. - confirmed this

position. The Madros, Delhi and Rajasthan high courts

have trealed such documents as admissible.

A copy of the article, dated 14.02.2017, titled "The Supreme

Court lVeeds to Reconsider lts Judgment in the Sohara-Birla
Cose", published by The Wire is annexed as Annexure
u|(Lq6-2Ag)
g2.A little later, it was discovered that while this case was being

heard by Justice Arun Mishra along with Justice Khehar,

Justice Misra had celebrated the wedding of his nephew from

his official residence in Delhi as well as his residence in

Gwalior. This has been mentioned also by Sh. Dushyant Dave,

former president of the Supreme Court Bar Association, who

had also attended the wedding reception. He stated that a large
 72
number ofBJP leaders were present at the event. A photograph

of Shivraj Singh Chouhan, the chief minisrer of Madhya

Pradesh, attending the reception at Gwalior also appeared in a

newspaper. This is significant because Chouhan was one ofthe

alleged recipients of money in the Sahara spreadsheets - the

very matter Justice Mishra was considering in court.

93,The Supreme Court has laid down a code of conduct which

says that judges should maintain a degree of aloofness,

consistent with their status - which means that they should
obviously not socialise with politicians whose cases are likely
to come up for hearing before them. It also says that judges
should not hear and decide cases involving their friends and
relatives. Putting these two together, it is obvious that if a judge
invites politicians for personal functions at his residence, a

perception arises that these politicians are his personal friends

and that the judge must not hear and decide cases involving

them.

KAHIKO PUL'S SUICIDE NOTE

94.Shortly after the dismissal of Sahara Birla case, a 60-page
suicide note of the late Arunachal pradesh chief minister

Kalikho Pul came in the public domain. Kalikho pul committed

suicide on August 9, 2016, barely three weeks after he was
unseated by a judgment of a constitution bench of the Supreme

Court headed by Justice Khehar and Justice Dipak Misra. In his

suicide note, which was found with his hanging body. and
signed and initialled on every page, Pul details the alleged
 73

corruption of various politicians as well of persons closely

related to senior members of the judiciary. In particular, the
note shows that he is especially anguished at the corruption of
the judiciary. He says that prior to the Supreme Court',s

judgment in the case, which quashed president's rule in

Arunachal Pradesh and removed him from office, a demand of

Rs 49 crore was made for a favourable judgement by the son of

Justice Khehar. He also mentioned that another demand of Rs

37 crores was made by the brother of Justice Dipak Mishra.

95.This suicide note contained a number of very serious

allegations of corruption which obviously needed investigation,

for which Pul's eldest wife, Dangwimsai Pul, had been making
requests to the government. However, the note remained
uninvestigated and its copies were kept tightly under wraps and

not made available to anYbodY.

g6.The then governor of Arunachal Pradesh, J.P. Rajkhowa,

himself went on record to say that he had recommended a CBI

investigation into the very disturbing charges made in Pul's

suicide note. However, it still remained uninvestigated. It was
only in early February that a copy of this suicide note was

obtained and published by The Wire, which published this note

in the original Hindi and in an English translation, after

redacting the name of the judges mentioned in the note. The
unredacted note was thereafter published by the Campaign for

Judicial Accountabiliry and Reforms (CJAR) in the interest of

 74
transparency and to prevent the spread of rumours about the
identities of the redacted names.

97.It is a fundamental principle in law that even a reasonable

apprehension of bias in the minds of the litigants constitutes a

violation of natural justice and renders the judgment a nullity.

The content of the documents recovered in the Birla-sahara
raids as well the contents of the Kalikho pul suicide note are

amongst the rnost lethal revelations of political corruption in

the country and they raise questions about the highest

constitutional positions in our country - the prime Minister and
the chief Justice of India. In hardly any case does one obtain
documentation which mentions in such detail, the payments
made of large sums of money to political personalities and
officials. The Kalikho Pul suicide note, in particular, is like a

dying declaration and that too of a chief minister, which should

have been treated very seriously in law because of the
jurisprudential maxim'nemo mariturus presumuntur mentri'

i.e. a man will not meet his maker with a lie in his mouth.

9S.Disturbingly, when a complaint was sent on the administrative

side by the wife of Kahiko Pul to Justice Kehar for inquiry

under the In House Procedure as regards the allegations in Mr.

Pul's suicide note, it was listed on the Judicial side by Justice

Kehar before Court No. l4 against the SC Rules and against the

In House Procedure for inquiring into complaints. In fact Mrs.

Pul had said in her complaint that the matter should be dealt
 75

with by the judges next in seniority to the judges who were

accused by Mr. Pul. The matter was withdrawn by Mrs. Pul.

A copy of the complaint of Mrs. Pul is annexed hereto as

Annexure c>o(*q7-3f,t)
99.The people of India have known for a long time the pervasive

and rampant corruption in the polity. The Kalikho Pul suicide

note has shaken the faith of the people in the integrity of the
highest levels of our judiciary. Burying the Birla-Sahara
documents and the Kalikho Pul suicide note without
investigation will not make the public suspicion go away' In
fact, it would only strengthen those suspicions and
irredeemably erode the fate of the people in the integrity of the
judiciary. It was imperative, therefore, that the contents of
these documents were subjected to thorough and credible

investigation. Unfortunately, they were allowed to be buried by

the Supreme Court.

Tenure of (Retd.) Hon,ble chief Justice Deepak Mishra

100. The tenure of Justice Dipak Misra from 28-08-2017 to

l-10-2018 was controversial in many respects and had

contributed to the decline in the reputation of the Supreme

Court as under:

Medical College Bribery Case

 76
101. The facts and circumstances relating to the prasad

Education Trust case, suggest that chief Justice Dipak Misra

may have been involved in the conspiracy of paying illegal
gratification in the case. The chief Justice of India, Justice
Dipak Misra presided over every Bench that heard the matter of

this medical college which was the subject matter of the

investigation in the FIR registered by the cBI. The facts and
circumstances which raised reasonable apprehension about the

role of Justice Dipak Mishra in prasad Education Trust matter

were as follows:

102. By order dated 1.08.2017 rhe bencrr headed by Jusrice

Dipak Misra in the Prasad Education Trust petition ordered that
the government consider afresh the materials on record
pertaining to the issue of confirmation or otherwise of the letter

of permission granted to the petitioner colleges/institutions and

that the central Government would re-evaruate the
recommendations of the MCI, Hearing committee, DGHS and

the oversight Committee. This by itself was not extraordinary.

A copy of the order dated 1.08.2017 is annexed as Annexure

clr (301-31U
103. on 24'h August 2017, a Bench headed by Chief Jusrice
Dipak Misra, granted leave to the Prasad Education Trust to
withdraw the said writ petition and to approach the Allahabad
High Court. This was certainly unusual, given the fact that
Justice Dipak Misra was directly dealing with many other cases

of similarly placed medical colleges to whom MCI had refused

 71

recognitron. A copy ofthe order dated 24.08.2017 is annexed

as Annexure c-LL C3e+-3,7t)

104. Then on the 25tr'of August 2017 itself, the Allahabad High

Court granted an interim order to the Prasad Education Trust'

allowing them to proceed with counselling and directing the
Medical Council of India not to encash their bank guarantee'
Thereafter on 29'h August 2017, in hearing the SLP filed by the

Medical Council of India from the order of the Allahabad High

Court granting relief to the Prasad Education Trust, the Bench

headed by Chief Justice Dipak Misra, directed that while the

writ petition before the High Court shall be deemed to have

been disposed of, liberty is granted to the Prasad Education

Trust to again approach the Supreme Court under Article 32 of

the Constitution of India. The granting of liberty to the college

to approach the Supreme Court again in such circumstances

was very unusual. This is compounded by the fact that the

interim order of the High Court allowing counselling to
continue and thereby admissions to continue, was not expressly

set aside by this order disposing of the writ in the medical

college in the High Court. A copy of the Allahabad High Court

order dated 25.08.2017 is annexed as Annexure

ca t A copy of the order in the SLP dated

29.08.2017 is annexed as Annexure crv (?ae-gg4)
105. Thereafter on 4'r' September 2017, Justice Dipak Misra
issued notice on the new writ petition filed by the Prasad
Education Trust (writ petition no.79712017).lt was surprising
 78
that notice should have been issued on this fresh writ petition
of the college if indeed the matter stood concruded by
disposing of the writ petition of the college in the High court

on the basis of Mr. Mukul Rohtagi's statement that he does not

seek any relief other than non encashment of the bank

guarantee. It was even more unusual because on l't september
2017, the same bench had already given a judgment in the
matter of a similar medical college namely Shri venkateshwara

University (Writ petition no.44512017),by stating that,

"The renewal application that was submitted
for the

academic session 2017-2018 may be treated as the

application for the academic session 20tB-20t9. The

bank guarantee which has been deposited shall not be

encashed and be kept alive".

106. This indeed became the basis of the final order in the prasad

Education Trust writ petition which was shown to be dated l g,h

September 2017. If the matter had to be disposed off

mechanically by following the judgment of I't Seprember 2017,

in the other medical college case, where was the occasion for
first giving liberty and then entertaining the fresh petition of the

college on 4'r'september 2017 and keeping it alive tiil at reast

the l8th of September 2017?

107. It is also important to note that officials of venkateshwara

college are mentioned in the CBI FIR as under:
 79

Information further revealed that shri B P Yadav got in

touch with Shri I M Quddusi, Retd. Justice of the High
Court of Odisha and Smt. Bhawana Pandey r/o I'{-7,

G.K. -1, New Delhi through Sh. Shudir Giri of

Venkateshwara Medical College in Meerut and entered

into criminal conspiracy for getting the matter settled'

A copy of order dated 1.09.2017 in Writ Petition No.44512017

is annexed as Annexure CfS(45& f ,ort of the
order dated 4.Og.2Ol7 in Writ Petition No. 79712017 of Prasad

Educational Trust is annexed as Annexure

e* G a) A copy of the order dated 11.0e.2017 in

writ Petition No. 79712017 0f Prasad Educational Trust is

annexed as Annexrt. C'1? t13t, A copv of

rhe order dated 18.09.2017 in Writ Petition No. 79712017 of

Prasad Educational Trust is annexed as Annexure

ClB,(931.94q^ copy of the cBr FIR is annexed

herero as Annex
"r" dL1 (!C+t- ZVU
108. The order dated l8'h September 2017, was not uploaded on

the Supreme Court website till the 21" of September evening as

is clear from the date stamp on the 18tr' September 2017 order.

The order was uploaded 2 days after the registration of FIR by

the CBI. This puts a question mark on whether indeed the order

was dictated in open court that day or whether it was kept

pending and dictated after the registration of the FIR and the

reporting of that in the media. Besides the order uploaded to

the website has the date of 21" Septembe r 2017 stamped on it.
 80

109. Finally the manner in which the chief Jusrice of India tried
to writ petition filed by the campaign for
ensure that the
Judicial Accountability and Reforms (writ petition no.
16912017) not heard along with the writ petition no. 17612017

filed by Ms. Kamini Jaiswal by rhe senior most 5 judges of this

court while hastily constiruring a 715 judge bench, himself
presiding over that Bench, not recusing himself from the Bench

even after being requested to do so, countermanding the order

passed by court No. 2 in Ms. Kamini Jaiswal's petition to rist

the case before the 5 senior most judges and thereafter

constituting a bench of 3 relatively junior judges which
included one judge who had been party to the order in the
Prasad Education Trust case, were further circumstances which

raised serious doubt about his role in the prasad Education

Trust case, which was being investigated by the cBI. The writ

petition was eventually dismissed by this Hon,ble Court.

Evidence avoiluble with the CBI

110. The CBI lodged an FIR on the 19,r, of September 2017, in

the matters relating to criminal conspiracy and taking
gratification by corrupt or illegal means to influence the
outcome of a case pending before the Supreme court. The FIR

reveals a nexus between middlemen, hawala dealers and senior

public functionaries including the judiciary. The case in which

the FIR had been filed involves a medical college set up by the

Prasad Education Trust in Lucknow. As it appeared from the

FIR lodged by the CBI, an attempt was being made to corruptly
 81

influence the outcome of the petition which was pending before

the Supreme court. The said petition was being heard by a

bench headed by Justice Dipak Misra.

1'11. The evidence with the CBI, before it registered this FIR,
included several tapped conversations between the middleman

Biswanath Agarwala, Shri LM. Quddussi, Retd. Judge of the

Orissa High Court and the Medical College officers. The
transcripts of some of these conversations dated 3-09.2017 and

4.0g.2017, had been received by the Campaign from reliable

sources and may be verified from the CBI. A copy of the

transcript of conversation tapped by the CBI on the 3.09.2017

in Hindi original and translated into English is annexed as

Annexure CgO(gtlO'?,StA copv of the transcript of

conversation tapped by the CBI on the 4.09.2017 in Hindi

original and translated into English is annexed as Annexure

c3 3se- 3sg
'(
ll2. It is important to note that the tapped conversation on
3.09.2017 between Shri Quddusi and Biswanath Agarawala
(middleman), indicate that negotiations were on to get the
matter of the Prasad Education Trust Medical College settled in

the Apex Court. It is relevant to note that the writ petition no'

7g7l2ol 7 of the Prasad Education Trust was admitted a day

later, on the 4.09.2017 by a Bench headed by the Chief Justice

Dipak Misra, that issued notice on the new writ petition filed
by the Prasad Education Trust. Reference had been made in the
 82
conversations to the "Captain" who would get the matter
favourably settled on the payment of the bribes.

l13. Further, the tapped conversation from 4.09.2017 between

Biswanath Agarwala, Shri I.M. Quddussi and Mr. Bp yadav
(of Prasad Education Trust), referred to the said petition under
article 32 being filed on 4.09.2017 and thar rhe next date for
hearing given by the Court being "Monday". The Monday after

4.09.2017 is I 1.09.2017 when the matter of Prasad Education

Trust was indeed listed and again heard by a bench headed by

the chief Justice of India that directed the matter to be further

listed on the 18.09.2017 .

ll4. This evidence available with the CBI, of the tapped

conversations between Shri Quddussi, middlemen and the

medical college officials, revealed that a conspiracy, planning

and preparation was underway to bribe the judge/judges who

were dealing with the case of this medical college. It further

revealed that negotiations regarding the amount of bribes to be

paid were still on while the matter was listed before a Bench

headed by Chief Justice Dipak Misra on 4.09.2017 and

11.09.2017. The references in the conversations between the
middleman Biswanath Agarwala from Orissa and the officers
of Prasad Education Trust to "Captain... has all over India"
and to "sir will sitfor 10-15 months" seem to be referring to

the Chief Justice. In light of the convoluted course that the case

followed and in light of these tapped telephonic conversations,

this matter needed an independent investigation to ascertain the

 83

veracity of the claims being made in the conversations, of the

plans to allegedly puy bribes to procure favourable order in the

case of the Prasad Education Trust in the Supreme Court and to

also clear the doubt about the role of the then Chief Justice of

India.

Denial of permission to the cBI to register an FIR against

Justice Narayan Shukla of the Allahabad High court

I15. The most serious circumstance that emerged, which further

strengthened the doubt regarding the role of the Chief Justice of

India in the Prasad Education Trust matter, was his denial of

permission to the CBI to register a regular FIR against Justice

Shukla of the Allahabad High Court, who presided over the

Bench that gave the interim order in favour of Prasad

Education Trust. It was learnt from reliable sources that the

CBI officers went to the Chief Justice of India on the 6'h of

Septembe r 2017, with the transcripts and other evidence
recorded by them in the FIR and preliminary enquiry, showing

almost conclusively the involvement of Justice Shukla in this

conspiracy and his receiving gratification of at least one crore

in the matter. The cBI Preliminary Enquiry report was

registered on the 8'h of September 2017 after the Chief Justice

of India refused permission to register an FIR against Justice

shukla on the 6,r' of September 2017. Even after being made
aware of this extremely important and virtually conclusive

evidence against Justice Shukla in accepting gratification, the

Chief Justice of India refused permission to the CBI for

registering even a regular FIR against Justice Shukla, without
 84
which further investigation against him could not be done and
he could not be charge-sheeted. It was also reliably learnt that

the officers of the CBI had made a record of this denial of

permission by the CJI in a notesheet. By preventing the
registration of an FIR against Justice Shukla and later by
dismissing the CJAR perition seeking a SIT probe into the
allegation in the CBI FIR by a bench constituted by the Chief
Justice, all investigation into the conspiracy to bribe judges for

obtaining a favourable order had been virtually stalled.

Ensuring that no further investigation was undertaken, into this

serious charge of alleged judicial corruption, amounted to a

seriously problematic use of power by the Chief Justice of

India.

I 16. It was however subsequently reported that Justice Dipak

Misra had set up an in-house inquiry against Justice Narayan
Shukla on the basis of some orders that he passed in another

similar case of a Medical College. If this warranted an in-house

inquiry, why was an in-house inquiry not ordered in the case of

Prasad Education Trust where an identical interim order was

passed by Justice Shukla and which came up before Chief

Justice Dipak Misra well before this. Also if this was serious
enough for in-house inquiry why was permission denied to CBI

to register an FIR particularly when the CBI had presented

documentary evidence in the case.

I 17. It was later reported that the In*house inquiry recommended

removal of Justice Shukla on the basis of which a

 85

recommendation was sent to the govemment to initiate

impeachment proceedings against him. This recommendation

was reiterated by the next Chief Justice Mr. Ranjan Gogoi as

well. Nonetheless, the government failed to take action as per

the recommendation and Justice Shukla was allowed to retire
on lTth Ju\y,2020, with all the benefits of retirement. This
shows a serious lack of accountability.

Supreme Court Judges Press Conference:

ll8. In January 2018, four senior most judges of the Supreme

Court after Chief Justice Dipak Misra, addressed a press
conference. The judges formally informed the citizens of this

country of a dangerous pattern which was becoming visible -

of the Chief Justice abusing his power as the master of roster in

selectively assigning important and politically sensitive cases

to particular benches of junior judges of his choice, in an

arbitrary manner, without any rational basis. This they

indicated would have a serious long term impact on democracy

and the future of our rePublic.

ll9. Though the senior judges did not mention it, but it was clear

that the assignment of such cases to certain junior judges was

for achieving a particular result, which in most cases was be

seen to be in tune with the wishes of the government. This

arbitrariness in use of his powers by the Justice Dipak Misra
was destroying the image of the Court and subverting the
 86
course ofjustice. Exposing this was, therefore, a necessary step

to remedy the situation and retain public faith in the institution

of the judiciary. Otherwise, as the judges said in the press
conference, history would have judged them harshly for having

failed in their duty to ring the alarm bells when rhe judiciary
was being subverted.

120. The letter released to the media by the four senior most
judges, Justices J. Chelameshwar, Kurian Joseph, Madan

Lokur, & Ranjan Gogoi stated:

"..with great anguish and concern that we... 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 adruinistrative functioning of the

offir, of Hon'ble the Chief Justice of India."

and,

"There have been instances where cose having

far-reaching consequences for the Nation and the

institution had been assigned b1t the Chief Justices of this

Court selective to the benches "of their preference"

without any rationale basis -for such assignment. This
must be guarded against at all costs. "

The judges went on to say that,

 87

"we are not mentioning details only to avoid

entbarrossing the institution but note that such
departures have already domaged the intage of the
institution to some exlent. "

l2l. Though the Chief Justice of India is the master of roster and

has the authority to determine benches to hear cases' this does

not mean that such power can be exercised in an arbitrary or

malafide manner. The four judges in their letter stated:

"The conyention of recognising the privilege of the Chief

Justice to form the roster and assign cases to dffirent

members/benches of the Court is a convention devised
of business of
-fo, o disciplined and fficient transaction
the Court but not a recognition of any superior
authority, legal or factual of the Chief Justice over his
colleagues. "

Master of Roster

122. The tenure of Justice Dipak Misra raised very serious issues
regarding the functioning of the Registry of the Hon'ble
Supreme Court of India and the powers exercised by the Chief

Justice of India, inter-alia, in "listing motters" so as to list

matters of general public imponance and/or of political

sensitivity before only certain Benches contrary to the Supreme

Court Rules, Handbook of procedure and conventions. A

 88
petition was filed by Shri Shanti Bhushan submitting that
during Justice Dipak Misra,s tenure as Chief Justice there were
a number of instances in which such powers had been exercised

with legal malice by abusing the administrative authority

conferred under the Constitution, the Rules and the Handbook

of Procedure and the convention on the Supreme Court. As a

result, the matters were being listed in a completely arbitrary

and unj ust manner so as to defeat interests ofjustice thereby

undermining the administration ofjustice.

123. The petition filed by Shri Shanti Bhushan submitted that the
powers being exercised in that regard were purely
administrative and it was well settled that administrative
exerciseof powers is subject to judicial review and if it was
found that such exercise is vitiated on account of many
extraneous factors like acting under dictation, abuse of
discretion, taking into account irrelevant considerations and
omitting relevant considerations, mala fides including malice in
fact or malice in law, collateral purpose or colourable exercise
of power, failure to observe principles of natural justice and
take reasoned decisions and violation of doctrine of
proportionality, together or separately vitiate the entire decision

making process. These principles were clearly attracted in the

case of Justice Dipak Misra as Chief Justice and master of
roster.

124. In the aforesaid backdrop the Iisting of matters as

demonstrated by the examples of the following matters

 89

amongst others clearly reflected and establishes gross

arbitrariness in use of powers and negation of the Rule of Law'

These matters were as under:

a. In W.P. (Criminal) 169 of 2017, Campaign for Judicial

Accountabiliry and Reforms v UOI & Anr., on 8.ll -2017

(SIT into Medical Scam) after the writ petition was

numbered, this case was mentioned for urgent listing

before court number 2 (since this was the court where

mentionings for urgent listing were being taken up and

also because it would not be appropriate for the Chief
Justice to deal with this matter in his judicial and

administrative capacity in view of the fact that he had

dealt with the case of the medical college throughout on

the judicial side). On mentioning, J. Chelameswar's

bench ordered it to be listed before him on Friday, lOth
November. However during lunch the petitioner's

counsel was informed by the Registry that in light of an

order by the Chief Justice this case was assigned to

another bench and therefore would be coming up on

Friday not before court 2 but before the other bench. on

10.11 .2017, the matter was heard by a bench headed by

Justice Sikri. The same afternoon the matter was

suddenly heard by a Constitution Bench headed by the
Hon'ble Chief Justice of India and junior judges hand
picked by him. This was then referred to a bench headed

by Justice R. K. Agarwarl and the same was dismissed

 90
vide Judgement of 1.12.2017, with a cost of 25 lakhs on
the petitioner.

b. Writ Petition (Civil) No. 1088/2017 in the matter of

Common Cause v Union of India. (Involving a

challenge to the appointment of the Special Director

CBI): This matter was Iisted on 13.11.2017 when

Hon'ble Justice Ranjan Gogoi and Hon'ble Justice Navin

Sinha passed the following order: "List the matter on

Friday i.e. I 7th Noventber, 201 7 before a Bench without
Hon'ble Mr. Justice Navin Sinha. " On l7'h November
2017, the matter was listed before Hon'ble Justice R. K

Agrawal and Hon'ble Mr. Justice Abhay Manohar Sapre

in complete contravention of Supreme Court Handbook

on Practice and Procedure. On 17.11.2017 Hon'ble

Justice Navin Sinha was not sitting with Hon'ble Justice

Gogoi and accordingly matter ought to have been listed

before the Bench presided by Hon'ble Justice Gogoi.
The exercise by the concerned Registry officials in this
regard was clearly an arbitrary discretion and suffered

from malice in law.

c. Civil Appeal No.1066012010 Centre for Public Interest

Litigation v Union of India. (The 2G case): This matter

came up before Court Number 2 on 01.1 1.2017 and was

to come up on 06.1 1 .2017 before the said Court.

However it was deleted and upon mentioning ordered for
listing before appropriate Bench as per roster. The matter
 9l
was thereafter listed before Court No. I on 13'll'2017

and upon recusal by Hon'ble Justice A. M Khanwilkar

and Hon'ble Mr. D.Y. Chandrachud, the matter was
placed before the Bench presided by Hon'ble Mr. Justice

Arun Mishra on l7.l1.2017, even though other Benches

of senior Hon'ble Judges were available.

d. writ Petirion (civil) 2012018 Bandhuraj sambhaji Lone

Petitioner Versus Union of India with Writ Petition

(civil) l9 of 201 8 Tehseen Poonawalla v union of India

(The Judge Loya death investigation case): This
matter upon being mentioned before the Chief Justice on

I I .01 .2018 was surprisingly ordered to be listed before

Court No. I 0 on I 2.01 .201 8 and I 6'01 '201 8'

Subsequently the matter was mentioned perhaps without

notice to the others on 19.01.2018 before the Hon'ble

chief Justice's Bench and it was ordered that the same
be listed before "appropriate Bench as per roster." PILs
were being heard by several courts' Yet, on 22nd January

2018 the matter was listed before court No. I which

heard the matter.

e. Special Leave to Appeal (Criminal) No 8937 of 201 7 Dr.

Subramanian Swamy v Delhi Police through
commissioner of Police (Involving the M.P. Shashi
Tharoor): The matter was listed before court No. 10 on
29.01.2018 and adjourned to satisff on maintainabiliry.
 92
Subsequently on 23.02.2018 the Bench issued notice

keeping the question of maintainability open.

f. Special Leave to Appeal (Criminal) No. 1836 of 2018

Rohini Singh v State of Gujarat: This matter involving
Shri. Jay Shah, son of Shri. Amit Shah was also listed
before Court No. I while several other courts had been
authorized to hear criminal matters under the Roster.

g. Writ Petition (Civil) No. 494 of 2012 (Aadhar case):

The matter was heard initially by a Bench presided by

Hon'ble Mr. Justice Chelameswar. Subsequently it was
referred to a larger Bench which was constituted on
18.07.2017 by Hon'ble Chief Justice Khehar and which

included Hon'ble Mr. Justice Chelameswar and Hon'ble

Mr. Justice Bobde amongst others. The question whether

privacy is a fundamental right arising out of the same

of 9 Hon'ble Judge which

was referred to a Bench
included the above Hon'ble Judges. However
subsequently the Bench came to be reconstituted and

does not comprise of Hon'ble Justice Chelameswar,

Hon'ble Justice Bobde and Hon'ble Justice Nazeer.

h. SLP(C) 28662-2866312017 R.P. Luthra v. Union of India

& Anr. (The petition which sought an explanation from

the Centre for the delay in finalizing the memorandum

of procedure (MOP) for appointment of judges to the

Supreme Court and High Courts and which also
 93

questioned continuing appointments even when the MOP

had not been finalised): On 27.10.2017, the bench of

Justices Goel and Lalit heard the matter and scheduled

the next hearing for November 14. However, on

8.11.2017, the case was listed before a new Bench of CJI

Misra, Justices A.K. Sihi and Amitava Roy. The three

judges bench headed by CJI recalled the 27 October

order.

The three Judge Bench of the Supreme Court in Pune

Municipal Corp. v. Harakchand Misirimal Solanki

2014(3)SCCl83 had held that unless the compensation

amount is deposited in the concerned Court it would not

be treated paid in terms of Section 24(l) of the Right to

Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013'

Act and therefore, non-deposit of such compensation

would result in a lapse of acquisition proceeding under

Section 24(2) of the Act. The correctness of this law was

doubted by a two judge bench of the Supreme Court

headed by Justice Arun Mishra vide dated 07 '12'2017

in

Civil Appeal No. 20982 of 2017,lndore Development

Authority v. Shaitendra (Dead) Through LRs, and
therefore, the same was referred to the larger bench'
In

Indore Development Authority, a three judge bench

headed by Justice Arun Mishra by a majority of 2:l vide

order dated 08.02.2018 held that the judgment in Pune

Municipal Corporation was per incuriam' One of three

 94
judges was of the view that a three judge bench cannot

hold judgement of another three judge bench per

incuriam. Meanwhile, a similar land acquisition matter
came up for consideration before another three judge
bench headed by Justice Madan B. Lokur on2l.02.2}lg.
This three judge bench, while considering the
submission made by the counsels appearing for the
farmers, whether a bench of three Learned Judges could

have held decision rendered by another bench of three

Learned Judges as per incuriam, without referring it to a

larger bench and therefore whether this matter should be

referred to a larger bench, vide order dated 21.02.201g,

made a request to the concerned benches of the Supreme

court dealing with the similar matters to defer the

hearing until a decision is rendered one way or the other

and listed the matter on 7.03.201g to hear the state. on

22.02.2018 thar is the very next day 2 similar matters

were listed before two different two judge benches of the

Supreme Court, headed by Justice Arun Mishra and

Justice Goel respectively who were part of the
judgement holding pune Municipar per incuriam.
Both
the two judge benches of the supreme court instead of
simply adjourning the matter referred their respective
cases to the chief Justice of India to list them before the
appropriate bench. The chief Justice of India without
waiting for the hearing before Justice Lokur on
7.03.2018, listed the matters refereed by two other
benches on 06.03.2018 before a 5 judge bench presided
 95

by himself, when an Order was passed that this bench

shall consider all the issues including the correctness of
the decision rendered in Pune Municipal Corporation as

well as the judgment rendered in Indore Development

Authority.

125. However, despite these circumstances, Sh. Shanti

Bhushan's petition was also dismissed by the Hon'ble Court
holding that the Chief Justice was the master of the roster.

Impeachment
126. Justice Dipak Misra is the only CJI so far to have faced the

threat of impeachment motion. Seventy one opposition MPs of

Rajya Sabha moved an impeachment motion against him, over

allegations of medical college bribery scam, misuse of 'master

of roster' power, manipulation with orders issued on

administrative side, and also an old case related to furnishing of

false affidavit seeking land assignment from Orissa

Government. The impeachment motion was rejected by Rajya

Sabha Chairman at the threshold. The petition filed against the

rejection motion was listed before a bench of five judges of SC.

It was not clear who constituted the bench, and how a bench of
five judges happened to be constituted at the first instance to
hear a fresh petition. The petition was withdrawn after the
petitioner's counsel Kapil Sibal declined to make submission

before the five judges' bench without obtaining clarity as to

how the bench happened to be constituted.

 96
127. These are only some of the instances of clear arbitrariness in

power of listing matters and/or re-constituting Benches and

assigning matters to such Benches completely contrary to the

Rules and the Handbook of Procedure. If these Rules and

Procedure prescribed were to apply, such listings and

re-allocation of matters could not and ought not to have taken

place. The pattern also suggests that certain matters which were

politically sensitive and involved either Ruling party Leaders

and/or opposition Party Leaders were assigned only to certain

Hon'ble Benches. Although appearing to be ..routine,,, these

listing and/or allocations were clearly designed in a particular

direction so as to exclude other Hon'ble Benches from hearing

such politically sensitive matters.

Judicial appointments

128. It is also widely felt that during his tenure cJI Misra was
not standing up to the undue pressures exerted by the executive
in the administrative affairs ofjudiciary. There was an instance

where the central Government was making interference with

the appointment of a judge to the Karnataka High court,
bypassing the SC collegium. The issue got highlighted only

when Justice chelameswar wrote a letter condemning the

government interference, and called for a full court meeting to

discuss the issue. Repeated over-turnings of SC collegiums,

re-recommendations by central Government was a regular
feature during his tenure. Though the re-recommendations are
 97

binding on the Centre, many of them were ignored. Chief

Justice Misra acted pliant, even in the face of such brazenness.

When the recommendation of Justice K M Jospeh was returned

by the Centre, through an unprecedented act of splitting up of

Collegium recommendations, firm reactions were not
forthcoming from the CJI Misra. With regard to Justice KM
Joseph, CJI Misra did not act promptly to reiterate his name,

and adjourned the resolution on several occasions. After high

Suspense, Justice Joseph's name was recommended in August,

2018, but along with two other judges, leading to his losing
senority. An article by Manu Sebastian in Livelou' on the
retirement of Justice Dipak Misra detailing various aspects of

his tenure that were controversial is annexed as Annexure

,r
h 6o- 3 61)

Debatable judgements:

12g. Judge Loya Matter: The grievance regarding allotment of

the Judge Loya case to the bench of Justice Arun Mishra was
one of the reasons which triggered the Judges' Press
Conference. The Loya case was later withdrawn by Chief
Justice Misra lrom the court of Justice Arun Mishra. The

judgement in the Loya case, left many unanswered questions.

The manner in which the statement of four judges (whose

version of the circumstances surrounding Loya's death the
Maharashtra government presented before the court) was
 98
accepted by the court without affidavit and that the State of
Maharastra was allowed to respond without filing affidavits.
Despite counsel for the petitioners pointing out that under the

Supreme Court's procedure, pleadings must be completed and

documents must be submitted on oath and could not be handed

over at the bar. Despite this, unsigned notes were handed over
and the judgement was delivered based on these notes.

130. Bhima Koregaon Case: Senior human rights activists with

stellar record of public service were arrested by Pune Police
(when BJP was in power) in a shocking case of targeting of

members of civil society. When petitions were filed seeking

SIT probe (Romila Thapar & Ors. V Union of India &Ors.

Writ Petition (Criminal) 260 of 2018) this Hon'ble Courr's
bench headed by former CJI Hon'ble Justice Mishra, vide
judgment dated 28.09.2018, rejected the prayer seeking
constitution of at SIT and refused to give any relief to the
activists. Justice Chandrachud, however, in his minority
judgment gave a strong dissent and critiqued the role played by

Pune police and opined that the case was fit for appointment of
an SIT. Later on, when BJP lost its government in Maharashtra

after the 2019 election and after the new CM was sworn in,
Central Government's NIA unilaterally took away the probe of
2018 Bhima-Koregaon casein the month January 2020 in a

clearly mala fide manner. Subsequently, this Hon'ble Court SC

refused to grant bail to activists (who were wrongly
incarcerated due to State's vendetta) even when there was
clearly no reasonable ground for such refusal, thus, proving
 99

that citizens' liberty is no longer seen as a matter of priority or

of grave concern by this Hon'ble Court. Unfortunately, this

leads to development of a belief amongst the well wishers of

Indian judiciary that this Hon'ble Court is increasingly

becoming'more executive-minded than the executive.'

HON'BLE CHIEF JUSTICE RANJAN GOGOI'S

TENURE

l3l. That the Apex Court during the tenure of Justice Ranjan
Gogoi as Chief Justice was characterized by a disturbing
proximity to the executive and a disregard for fundamental
rights of citizens. By compromising the independence of the
judiciary and failing to discharge its duties as a constitutional
court, the Apex court under the chief Justiceship of Justice
Gogoi abetted the weakening of democracy in the country. The

specific instances where Justice Ranjan Gogoi during his tenure

as cJI compromised the independence of the judiciary and

displayed disregard for fundamental rights are highlighted

herein below

132. That Justice Gogoi during his tenure as CJI routinely

accepted evidence/information in the form of sealed covers
from the Union Government in a number of high-profile cases

like the Rafale case. CBI Director case, and Assam NRC case.
The information contained in the sealed covers was not shared
with the opposite parties in those cases and therefore, they had
no way to rebut the said information provided to the Court and

further the judgements contained information that was only

 100
available to the courts in the sealed cover. This is against our

adversarial legal system where the truth is arrived at through a

process of assertion and rebuttal. Furthermore, the Court

during the Chief Justiceship of Justice Gogoi displayed a

surprising willingness to accept the unverified and unrebutted

informationievidence provided by the Union Government and
place reliance on the same for arriving at its decisions. These

decisions themselves did not contain any reasons as they were

based on 'classified' information, thereby departing once again

from the traditional duty of courts to give reasons for their

judgments. It is submitted that this sealed.cover jurisprudence

popularized by Justice Gogoi during his Chief Justiceship was

ultimately adopted by the High Courts as well.

133. That for example, in the Rafale case, the Apex Court
accepted the pricing details for the aircraft submitted to it in a
sealed cover by the Union Government. However,

subsequently, it was discovered that the Court's finding based

on information contained in the sealed covers that the CAG had
already tabled a report pertaining to the Rafale deal which had

been accepted by the Public Accounts Committee ("PAC") was

factually wrong since the CAG's report was tabled only fwo
months after the judgment. Despite this, the Court refused to

entertain an application for perjury against the government and

dismissed the case of the petitioners.

134. That Justice (retd.) Madan Lokur deprecated the practice of

accepting information from the government in sealed covers.
 101

Justice Lokur alluded to the petition concerning the preventive

detention of children in Kashmir which was disposed off by the

Court on the basis of the report of the Juvenile Justice

Committee that was submitted in a sealed cover without a copy

of the same being made available to the petitioners therein. In

the words of Justice Lokur:

"The right to know and the right to information are now

passd - secrecy is the nome of the gqme in which the

state has been given the upper hand by the courts'"

A true copy of the article titled "Judicial Independence: Three

Developments that Tell Us Fair is Foul and Foul is Foir" dated

23.03.2020 written by Justice (retd.) Madan Lokur published in

the wire is annexed herewith as Annexure

Cg?(?+o-s?s,

ASSAM NRC CASE

135. That Justice Gogoi, even before he became CJI, while

hearing a PIL, assumed supervision of the Assam NRC
process. As CJI, Justice Gogoi gave deadlines for completion

of various phases of the NRC process, and turned down

requests for extensions made by the Union Government also'

Furthermore, the criteria for inclusion in the NRC and every

step of the process was monitored by the Court itself thereby

obviating any possibility of judicial review. That owing to the
fact that the Apex Court itself was supervising the NRC
process, persons aggrieved with the modalities of the process
 102
had no legal recourse. It is submitted that inclusion in the NRC
was necessary for legitimizing one's citizenship with
citizenship itself being the right to access other rights. The fact
that such an important exercise was undertaken without the
people having access to their constitutional remedies was a

serious breach of the Supreme Court's traditional role.

PRIORITIZATION OF CASES

136. ELECTORAL BONDS MATTER: The petition filed by

Association of Democratic Reforms and Common Cause (WpC

88012017) was filed in September 2Ol7 challenging the

amendments brought in through Finance Commission of 2016

and 2017 allowing anonymous and limitless political funding

(even by foreign companies) by way of Electoral Bonds. The

case is especially important as the issue of Electoral Bonds is

integrally connected to the issue of corruption and subversion

of democracy through illicit and foreign funding of political
parties and lack of transparency in accounts of all political
parties. After the order issuing norice dated 03.10.2017, the

petitioner also filed application for stay dared 06.03.2019 of the

Electoral Bond Scheme, 2018. On12.04.2019an interim order

was passed by this Hon'ble Court asking political parties to

give details of particulars of donors in sealed cover to the

Election commission. The fact that the details of donors were

to be handed to the ECI in "sealed cover" was ironic since the
entire case is based on the need for transparency in political
funding, especially when it is the right of the voting public to
 r03
know who is funding various political parties so as to know
whether a political party would be inclined to serve the public
or benefit the funders, who helped them win elections. That the
matter was never given its due importance even as national
elections were held as the matter was kept pending'

137. The petitioner again filed an application for stay dated

29.ll.2}lg after various important and explosive disclosures

were made by a disclosure series done on Electoral Bonds

based on documents received through RTIs. The said

documents filed by the petitioner showed how RBI was also

opposed to the introduction of anonymous donation by means

of Electoral Bonds and how the present government bent the
rules governing the Electoral Bond Scheme with impuniry and

asked state government to open illegal window for encashment

of bonds before state assembly elections and how SBI was

asked to accept expired bonds at the instance of Finance

Ministry. That the matter which strikes at the very root of

corruption in politics, continues to linger in this Hon'ble Court

since 2018, while the electoral bond scheme continues largely

benefitting the ruling party, which, as per news reports has

received 95% of all Electoral Bonds purchased'

ARTICLE 370

138. In an unprecedented move, the entire Constitutional scheme

relating to Jammu &. Kashmir was subverted by the

Government without any consultations, when the entire state

was under president's rule. Government, acting by stealth and

 104
deceit, put the entire state in curfew and passed executive
orders without even a discussion in parliament. The state was

trifurcated, converting Kashmir into a UT, and its statehood

having been taken away. Till date, the case is pending and final
hearings have not even started though the judgement on
preliminary issues was rendeied months ago. Thus, by delay,
the government's actions have been made a fait accompli and
difficult to reverse. The entire state continues to be in a

lockdown for almost a year, but this Hon'ble Court does not

find it as a problem worth addressing. Interestingly, the

Government, in 4G case, has admitted that the situation is

grave thus, refuting its own stand that abrogation of 370 would

bring peace.

139. In his article, dated 06.08.2019, titled "The story of Indian

democracy written in blood and betrayal", highly regarded

political expert and academician Mr. Pratap Bhanu Mehta
rightly wrote:

"Let us see what the Supreme Court does, but if its

recent track record is anything to go by, it will be more

executive minded than the executive. Kashmir is not just

about Kashmir; ln the context of the UAPA, NRC,

communolisation, Ayodhya, it is one more node in a

pattern hurtling the Indian stote towards a denouement
where all of us feel unsafe. Not just Kashmiris, not just
minorities, but anyone standing up for constitutional
liberty."
 105

A copy of article, dated 06.08.2019, titled "The story of Indian

democracy written in blood and betrayaf' published in The

lndian Express is annexed herewith as Annexure

cg+(?46-?D8)

HABEUS CORPUS PETITIONS

140. That Justice Gogoi, during his tenure as chief Justice,

displayed a similar reluctance to decide habeas corpus petitions

concerning detentions of several Kashmiris in the aftermath of

the abrogation of Article 370 of the Constitution whereby the

special status of Jammu & Kashmir was revoked. Considering
the fact that the writ of habeas corpus is the only constitutional

safeguard against exercise of arbitrary state power, this

Hon'ble court displayed an astonishing lack of urgency in
dealing with these habeas corpus petitions. For example, in the

case of the petition filed by Sitaram Yechury regarding

detention of his party colleague J&K MLA Yusuf Tarigami, a

bench headed by CJI Gogoi permitted Yechury to travel to

Kashmir, meet Tarigami and report back to the Court without

indulging in any political activities. Inexplicably, no reasons
were sought from the Union Government for the detention of

Tarigami. It was only in September that he was moved to

AIIMS for medical treatment after an order of this Hon'ble

Court and thereafter released. But their was substantial delay in
hearing a Habeus Corpus petition which are to be dealt with

urgently.
 r06

141. Former Union Ministers, Chief Ministers, Mps, State

Ministers belonging to mainstream parties like congress, NC,

PDP and former IAS officer, HC Bar Association president,
etc, have been put under indefinite detention, and this Hon,ble

court shockingly keeps on adjourning cases, even though ail

liberfy cases are to be treated as most urgent. Thus,
unfortunately, it seems that this Hon'ble court has become an

extended arm of the ruling parry and the central government. It

was reported in The Print, on 04.09.2019, in its report titled

"Supreme Court's handling of Kashmir habeas corpus more
worrisome than Modi govl's clampdown" as follows:

"It should be a cause for worry f the Supreme Court,

which is often criticised for spending too much time on

frivolous coses that don't necessarily involve o

constitutional issue, takes five days to hear a writ of
habeas corpus. And that too one, which involves the
important question of citizens' life and liberty. LThat can
be more important and urgent for the Supreme Court in

ct democracy than deciding whether o citizen's

fundamental right to life and liberty as granted under

Article 2l of the Constitution has been violated or not by
the state? Even during an emergency-like situation, the

state can't restrict people's freedoms without following

the due process of law. "
 107

A copy of the report dated 04.09.2019, titled "supreme Court's

handling of Kashmir habeas corpus more worrisome than Modi
govt's clampdown", published by The Print is annexed as
Annexure CELbn-98,
CBI DIRECTORS TENURE CURTAILED

142. In an unprecedented move, Central Government suspended

the CBI Director Alok Verma when he ordered investigation

into cases involving persons ctose to the ruling party. The

move was clearly illegal since as per DSPE Act, it required the

concurrence of a high powered committee of PM, LoP and the

Hon'ble CJI which was not taken. When he petitioned this

Hon'ble court [w.P. (c) No. 130912018], no interim stay was
passed by this Hon'ble Court despite clear illegality and the
matter was kept on adjourning. Thereafter, on 06.12.2018.
judgment was reserved for a long time. Ultimately, on the

verge of Verma's retirement, even though this Hon'ble Court

held his suspension as illegal, vide its judgment dated
08.01 .2019. it did not allow him to resume work but instead
asked the HPC to decide on his suspension within a week from

the date of the judgment. Thereafter. the HPC by majority (LoP

dissenting) by the votes of PM and the Hon'ble CJI's nominee

decided to suspend Verma.

AYODHYA

143. That the delay in hearing the aforesaid cases was contrasted

with the alacriry shown by the ex-CJI in hearing the Ram

 108
Mandir dispute. A Constitution Bench for hearing the case was
set up by ex-CJI Gogoi and the matter was heard for a total of
40 days making it one of the longest hearings of a case in the
history of this Hon'ble Court. In its final judgment, this

Hon'ble Court decided that the site where the erstwhile Babri
Masjid was Iocated belonged to the Hindus and ordered the
construction of a Hindu temple. It is pertinent to note that the
construction of a Ram Mandir at the site in Ayodhya was an

essential poll promise of the ruling party and the expeditious

hearing of the case and the final outcome served to strengthen

the poll prospects of the said ruling party.

144. Babri Masjid was illegally and unconstitutionally

demolished on 06.12.1992.It was also demolished in contempt

of the orders passed by this Hon'ble Court. Therefore, in the

Ayodhya judgment dated 09.11.2019 (CA 10866-10867 of
2010),this Hon'ble Court rightly held that its destruction was
illegal. And yet, it allowed the construction of Ram Mandir on

the very site on which Masjid used to stand admittedly for

centuries till 1992. The only way Mandircould be built on the

site is by demolition of the mosque, and by this Hon'ble Court

ordering the construction of the Mandir, it has become a

judicially sanctioned demolition. This Court by it's final
judgement allowed the construction of temple using the alleged

faith of one community as a judicial reasoning to triumph over

the rule of law.
 109

145. Former Chief Justice of Delhi and Madras High Courts and

former chairperson of Law commission of India Hon'ble

Justice. A.P. Shah said inter alia the following on the

Ayodhya case:

"The Court's judgment was unanimous, but anon))mous.

Contrary to iudicial practice, the name of the iudge who
authored the unanimous opinion was absent. Even more
peculiar u,os the l16 page anonymous "oddendum" to
the judgment, that sought to reinforce and reiterate the

"faith, belief and trust of the Hindus" that the "disputed

structure is the holy birthplace of Lord Ram". The need

for this addendum is highly questionable given that the

bench had already unonimously decided the case on
constitutional principles, and the addendum was nol
serving the role of a concurring opinion. Instead, the
addendum seems to reinforce the supremocy of Hindu

theological considerations. A key issue thot arose in this

judgement wos the issue of equity- The Supreme Court

was of the view that the Allahabad High Court's decision

to divide the property into three parts was not "feasible"

in view of the need to mainlain peace and tranquillity.

However, u,hether the Supreme Court's judgment
resulted in complete justice is questionable since it still

seems like despite acknowledging the illegality

committed by the Hindus, first in 1949, by clandestinely

keeping Ram Lalla idols in the n?osque, and second, by

wantonly demolishing the mosqtte in 1992, the court

 ll0
ffictively rewarded the wrongdoer. This goes against

the doctrine of equity, which requires you to approach

the Court with clean hands. "

A copy of the lecture, dated 12.02.2020, published by Scroll.in,

titled "Justice AP Shah; 'Freedoms on unsteady ground, made
to doubt whether SC able to protect our rights"' is annexed as

Annexure Cg5(3Ea-3%)

SEXUAL HARASSMENT CASE

146. That in April 2019, a young woman who worked at the

Supreme Court as the Junior Court Assistant of ex-CJI Gogoi
circulated an affidavit amongst the Supreme Court judges as

well as the news media containing allegations of sexual

harassment against the ex-CJI. In the said affidavit, she detailed

the various sexual advances that were made by the ex-CJI

while she was working with him and the tribulations that she

was made to undergo in December 201 8 when she rebuffed

those advances, including being transferred thrice and

ultimately suspended from service on charges of professional

misconduct. She further alleged that her family was also
targeted with her husband and brother-in-law who were both

constables in the Delhi Police being suspended from service,

and her second brother-in-law who was a disabled employee at

the Supreme Court also being terminated from service. To

further compound matters, both she and her husband were

arrested by the Delhi Police on charges of bribery and extorlion
 lll
in relation to allegedly helping a person secure a job at the

Supreme Court. A copy of the affidavit sent by the lady is

annexed hereto as Annexu r" Cg+ C?q?-qej)
147. That after circulation of the affidavit, ex-CJI Gogoi
convened a special sitting of the court on a Saturday morning,

for examining the issue in a matter titled "IN RE: A

MATTER OF GREAT PUBLIC IMPORTANCE
TOUCHING UPON THE INDEPENDENCE OF THE
JUDICIARY" wherein Justice Gogoi himself also sat on the
Bench, thereby violating the cardinal principle of natural

justice that no one can be a judge in his own cause. However,

surprisingly, the order that was passed in the maffer was not
signed by the ex-cJl, even though he was part of the Bench,

and only bore the signatures of the remaining two judges on the

Bench.

148. That former Judge of the Supreme Court, Justice. Santosh

Hegde opined,

"What the Chief Justice of India did was wholly wrong

both in law and morality,"

".... the matter was being heard on a complaintfiled by

one of the parties... he (the CJI) presided over the bench,

and look at the things he has done...he has nowhere in

the records put that he is part of the bench,"
 tt2
"He (the CJI) has participated in the dialogue there, he
has not signed the order, two other judges have signed
the order. What's the meaning of this?"

"First of all, he could not have sat there.. what message

is he sending? As Chief Justice of India can he sit in the

bench and hear his own case? It's wholly wrong both
legally and morally."

A copy of news article in The Outlook quoting Justice Hegde is

annexed as Annexr.. C-38 tqa6,4la1

149. That the sexual harassment matter was assigned to a

Committee comprising of Justices S.A. Bobde, Indu Malhotra

and Indira Bannerjee. However, the complainant withdrew

from the proceedings before the Committee since she was not
allowed representation by a lawyer and she stated that the
proceedings were not being conducted in a fair and open
manner. Even Justice D.Y. Chandrachud expressed concern
over the manner in which the proceedings were being

conducted by the Committee and Attorney General K.K.

Venugopal recommended that the Committee should also
comprise of an external member. However, notwithstanding the

deficiencies in the manner in which the proceedings were being

conducted and the fact that the Complainant had already

withdrawn from the proceedings, however, nevertheless, the
Committee proceeded to examine the complaint ex parte and
ultimately filed the complaint. However, the final report of the
 l13
Commiffee was not even published, thereby completely
negating the concept of open justice. That subsequently the

complainant was reinstated in service at the Supreme Court,

and even her husband and brother-in-law were reinstated' The

criminal case against her was closed after the police admitted in
court that it had no evidence to back the charges' This itself

shows that the orders suspending the complainant and her

family members from service were wrongful and the criminal
case was mala ficle. Furthermore, it is also in the public domain

that when the complainant frled an appeal for her reinstatement,

she was advised to withdraw the same by a 'top government

out.
functionary' who told her that everything would be sorted

150. That the entire episode pertaining to the sexual harassment

case against the ex-CJI Gogoi continues to remain shrouded in

mystery and raises the possibility of the Supreme Court and the

Union Government working in coordination to victimize the

complainant. It also raises questions on ex-CJI Gogoi's
independence from the executive while deciding important
cases. A true copy of the article written by journalist Sidharth

Vardarajan for The Wire is annexed herewith as

Annexure cg1 &t8,4ag)

Inexplicable transfers and appointments of judges

151. That during the Chief Justiceship of Justice Gogoi, Justice

Akil Kureshi, who has delivered several important judgments

against the present government, was transferred from Gujarat

High Court to the Bombay High Court. This was followed by

 tt4
passionate protests by the Gujarat High court Bar Association.

Subsequently, the Union Government sat for four months on a

Collegium resolution to appoint Justice Kureshi as Chief

Justice of MP High Court, and ultimately, the resolution was

modified recommending Justice Kureshi's appointment as

Chief Justice of the Tripura High Court where he finally took
charge.

152. That the earlier collegium resolution for elevation of

Justices Pradeep Nandrajog and Rajendra Menon to this
Hon'ble Court was subsequently modified after the retirement
of Justice Madan B. Lokur who had been part of the earlier
collegium, and instead, Justice Sanjiv Khanna's appointment
was recommended. Justice Lokur expressed surprise over the

modification of the resolution after his retirement, and Justice

S.K. Kaul wrote a letter to the ex-CJI objecting to the

appointment of Justice Khanna by giving a go-by to principles

of seniority.

QUID PRO QUO: RAJYA SABHA NOMINATION

153. That merely four months after his retirement, the ex-CJI
Gogoi was nominated by the President of India for a seat in the
RajyaSabha which nomination was accepted by rhe ex-CJI. The

acceptance of the nomination soon after retirement was

criticized by eminent lawyers like RakeshDwivedi and

Dushyant Dave, as well as by former High Court and Supreme

Court judges like Justice Madan B. Lokur, Justice Kurian

Joseph, Justice A.P. Shah, Justice R.S. Sodhi, etc. It was stated
 ll5
by these eminent personalities in the press that ex-CJI Gogoi's
nomination to the RajyaSabha raised serious concerns of quid
pro quo in relation to several important judgments delivered by
the ex-CJI in favour of the Union Govemment.

154. That Justice (retd.) Madan Lokur in his article (already

annexed herewith as Annexure R ) condemned Justice

Gogoi's acceptance of the RajyaSabha nomination in the

following terms:

"His acceptance of the nomination, and the crtticism this

has naturally generated, has considerably diminished the

moral stature of the judiciary ond thereby collaterally

impacted on its independence. Public perception is
important and it has been rendered totally irrelevant,
thereby taking away one of the strengths of the
judiciary."

ThatJustice(retd.)KurianJosephstatedasfollows

"Acceptance of Rajya Sabha nomination by former

has certainly shaken
Chief Justice of India Ranian Gogoi

the confidence of the common man in the

independence

the basic structures

of the judiciary, which is also one of

of the Constitution of India'"

titled "'Sad day

True copy of the news report dated 17'03'2020
condemn
for judiciory';Two ex-SCiudges' Opposition parties
 ll6
Gogoi's Rajya Sabha nomination" published by the Scroll is

annexed herewith as Annexu ," C4O t 43V -$q

155. That Justice (Retd.) A.P. shah publicly stated that Justice
Gogoi's acceptance of the RajyaSabha nomination sounded the,

"death knell for the separation of powers and

inde pe nde nc e ofj udi ci ary" .

A true copy of the news report dated 17.03.2020 titled ,,Death

Knell For Power Separation; Retired Judge On RanjanGogoi,s
New Role" published by NDTV is annexed herewith as

Annexure c4l ( q3?- q3g)

156. That eminent lawyers of this Hon'ble Court also condemned

Justice Gogoi's acceptance of the Rajyasabha nomination.

Dushyant Dave, Senior Advocate and president of the
Supreme Court Bar Association, said,

"This is totally disgusting, a clear reward in quid pro

quo. The semblance of independence of the judiciory is
totally destroyed."

Karuna Nundy, Advocate, Supreme Court tweeted

"It's just so sad, the brazenness of it. Destroying

constitutional proprietyfor a measly Rajya
Sabha seet.,,.
 lll
True copy of the article dated 16.03 .2020 titled "ln
(Jnprecedented Move, Modi Governntent Sends Former CJI
RanjanGogoi to Rajyasabha" published by the Wire is annexed

herewith as Annexu ," C4Z Lt*gq-Wg)

157. That noted scholar and columnist Pratap Bhanu Mehta

had this to say about Justice Gogoi's nomination to the Rajya

Sabha:

"His actions will now cast doubt on the Court as o

whole; every judgment will now be attributed to political
motives. In an era where ordinary citizens are struggling

to safeguard their citizenship rights and basic

constitutional standing, Justice Gogoi's actions say to

us; The Law will not protect you because it is

compromised, the Court will not be a countervailing
power to the executive because it is supine, and Judges
will not empower you because they are diminished men'"

A true copy of the article dated 20.03.2020 titled "The Gogoi

betrayal; Judges will not empower you, they are diminished
men" written by PratapBhanu Mehta published in the Indian
Express is annexed herewith as Annexure

e43 (qqq-o 4b)

THE TENURE OF THE PRESENT HON'BLE CHIEF
JUSTICE OF INDIA SH. SHARAD ARVIND BOBDE
 lt8
CITIZENSHIP AMENDMENT ACT, 2OI9

158. Since independence, no other legislation has caused as

much protests and anxieties as the Citizenship (Amendment)

Act,20l9 ["CAA"] did. The introduction of the CAA resulted
in unprecedented uprisings across the country and created deep
fissures across the society.For the first time since in India,
religion has been made as a basis for Citizenship, converting
India from a secular republic to a country where religion is the

basis of citizenship.Moreover, the combination of CAA with

NRC was rightly seen as a move to take away citizenship of
millions of Muslims, who would be rendered stateless. CAA
had also become a major international issue and large number

of continuous protests were happening across the country.

159. over 60 petitions were filed before this Hon'ble Court by

various reputed organisations and individuals challenging the
CAA. This Court was pleased to issue notice on the same on
18.12.2019 in W.P.(C) No. 147012019. Thereafter, the
provisions of cAA came into force on 10.01.2020 when it was

notified in the Gazette of India.On 22.01.2020, when it was

urged before this Hon'ble court to put on hold operation of
CAA and postpone exercise of the National population
Register (NPR) for the time being, this Hon'ble court refused

to grant any such stay and also directed that matters involving
the same issues will not be taken up for decision in any of the
High Courts. It is to be noted that exactly around one month
after this, the National Capital burned because of communar
riots, where helpless people belonging to minority community
 119

were targeted in a pre-planned manner by those of majority

communiry. CAA protests were at the heart of the communal
riot.CAA protestors were being labeled as "anti-India"
protestors. The instant was a fit case for this Hon'ble Court to

grant a Stay aS even a cursory glance over its provisions makes

it manifest that is has all the tendency of subvening the

Constitution of India. However, several months have elapsed,

the matter is yet to be taken up by this Hon'ble Court.

160. Sr. Advocate Dushyant Dave in his opinion piece dated

24.12.2019 stated:

"The Court cannot desert its duty to determine the

constitutionality of an impugned statute. And so, the
decision of the Supreme Court, led by the Chief Justice
himself, to defer the examination of the challenge to the

much talked about Citizenship (Amendment) Act, 2019

is, to say the leost, disappointing. The Court should have

put aside other matters and heard the group of writ

petitions challenging the validity of this ex-facie uniust
law. The utinter vacation is hardly an excuse to deJbr

such a challenge.Even if the iudges wanted to enioy their

much deserved winter vacation, their refusal to stay the

law is even nxore disturbing. Such an order would have

immediatetv defused the tempers running high across the

nation, and, "We, the People" could have breathed a

sigh of relief.lnstead, the judges have left us tofendfor
ourselves in the streets of our cities. The cost of this

decision by the court will only become clear with

 r20
time.The granting of a stalt order against the operation

of this citizenship law w,ould not have caused any

prejudice to public interest whatsoever. On the contrary,
it is my belief that it would have served the public
interest well."

A copy of the article, dated 24.12.2019, titled CAA Protests:

The Supreme Court has not acted with urgency to protect

citizens from Executive excesses published in Bar and Bench
Scroll is annexed as Annexu r" C4l4!a-U*-4qq)

ATTACKS ON UNIVERSITIES

161. On 16.12.2019, when this Hon'ble Court was urged to take

Suo Motu cognizance of reports of police violence against

students of Jamia Milia University and Aligarh Muslim
University in the wake of ongoing protests against the CAA,
the Hon'ble CJI was reported to have said that: - "the Court
will hear the matter tomorrow, if the violence is stopped." The

Hon'ble CJI was further reported to have stated:- "We know

how the rioting takes place...we are ctware of the rights andwe
will decide on the rights but not amidst all this rioting...The
court cannot be forced to decide anything only because some
people decide to throw stones outside...this court cannot be
bullied...law cannot be taken into their hands just because thelt
are students...we will hear and see what can be done only when

things cool down, with a calm frame of mind... " and the
petitioners were asked to approach the High Courts instead.
 t2l

DELHI RIOTS

162. Delhi witnessed its worst riots since 1984 wherein once
again, just like 1984, a minoriry community was attacked and

the police was a mute spectator or often a visible collaborator'

Numerous video footages as well as images surfaced across the

media showing police officials creating mayhem in complicity

with the rioters and mercilessly beating up protestors and those

of minority communitY.

163. Hon'ble Delhi HC bench headed by Hon'ble Justice

Muralidhar was passing several orders trying to crack whip the

and enforce accountabiliry while the city was burning. During

hearing on 26.02.2020, on being asked about the inflammatory

speeches of BJP leaders, Ld. SG stated that he hadn't watched

any of the said videos. On this the said videos were played in
open court. surprisingly, the Ld. sG continuously submitted
that that time was not 'appropriate' or 'conducive' for FIRs to

be registered in relation to these clips. However, Hon'ble

Justice Muralidhar was pleased to direct the Delhi Police
Commissioner to take conscious decision on registration of FIR

in respect of inflammatory speeches made by the BJP leaders

and the maffer was listed for hearing on 27.02.2020. However,

in the night of 26.02.2020 itselt Hon'ble Justice Muralidhar

was transferred. After the case was transferred to the Hon'ble

Chief Justice of the Hon'ble Delhi HC, the matter was simply
adjourned on 27.02.2020, granting 4-weeks time to the
government to file its Counter-Affidavit in response to the plea
 122
seeking registration of FIRs against politicians for making
incendiary statements which incited mob-violence in North
East Delhi, despite the fact the city was burning and the case
was urgent.

164. This Hon'ble Court, vide order dated 04.03.2020 passed in

W.P.(Crl.) No. 10312020, was pleased to direct that the said

hearing may be advanced and be taken up by Hon'ble High

Court on 06.03.2020. However, during the hearing on

04.03.2020, the Ld. SG read out excerpts from a speech stated

to have been made by renowned social worker Mr. Harsh

Mander, which allegedly included criticism about the Supreme

Court of India. In response, the bench observed that an

explanation was warranted in this regard. The Hon'ble CJI is

reported to have remarked that, "lf this is what youfeel about

SC, then we have to decide what to do with you". As a result of

this, all other petitions (except Mander's plea) filed by riot
victims, intervention applications and any other related

petitions with the Delhi Riots cases were directed to be listed

before the Delhi High Courr on 06.03.2020 as stated above.

Nationwide Lockdown & Migrant Crisis

165. With the attempt to contain the spread of Covid-I9, the

central government, beginning March 24, passed a series of

draconian orders including a long nationwide lockdown with
complete suspension of all economic activity and also shutting

down of all public & private transport. This was done with
 t23
mere 4-hour notice. Overnight, the police was unleashed on the

millions of helpless citizens, many of whom did not have any

avenue to have two square meals a day. Arbitrariness was writ

large and yet this Hon'ble Court did not pass any orders either

to stay the complete shut down or even to mitigate the resultant

misery and hardship.

166. Various petitions with regard to the migrant crisis were filed
before this court. Some of these were the ones filed by Alakh

Alok Srivastava (Writ Petition (Civil) No. 468/2020) on the

issue of shelter homes, Harsh Mandar (Writ Petition (Civil)

Diory lt{o. 10801/2020) on issue of wages to be paid to migrant

workers and Jagdeep Chhokar (Writ Petition (Civil) Diary No.

10947/2020) on the issue of return of migrant workers to their

homes and villages. In one of the hearings in Alakh Alok

Srivastava, the statement by the Learned Solicitor General, that

"no one is now on the road'was accepted by this Court at face

value, at a time when thousands of migrant workers along with

their families were facing unprecedented hardship and ordeal

trying to walk hundreds and thousands of kilometers trying to
reach their homes and villages. The Court accepted the
submissions made by the Central government whereby it was

claimed that exodus of migrant labourers was triggered due to

panic created by some fake/misleading news that lockdown
would last for 3 months. The petition was disposed of relying
solely on the status report of the government while ignoring the
reports and surveys conducted by civil society groups. In other
 124
cases also, no substantial relief was accorded by this Court to

migrant workers at a time when crisis was underway.

167, The Hon'ble Delhi HC rightly observed the following about

the lockdown in its order dated 12.06.2020 passed in W.P. (C)

No. 3449 of2020:

" l I This Court can take judicial notice of the fact that
the lockdown has resulted in loss of jobs for several
lakhs of people. Scores of people were forced to walk
considerable distance during the lockdown and stand in

long queues at Food distribution centers just to have two

square meals a day. Several have gone hungry and were

not able to get one meal. Many were left shelterless.

Several lakhs of migrant labour had to walk on foot and

go back to their native places. The economic situation of

the country has taken a terrible hit due to the lockdown.

In fact, many analysts have opined that the lockdown has

caused more human sffiring than COVID-L? itself.

Economists have forecasted that Indian economy will

shrink as a result of the steps taken to contain Corona
virus pandemic. Indian economy virtually came to a
standstill during nationwide lockdown. Production in the
country came to a grinding halt during the lockdown
period. Construction activities in the country have

stopped. People have become unemployed which raises

grove concerns regarding the law and order situation in

the country."
 125

168. Despite Covid-19 affecting the entire world, India was the
only country which witnessed a huge humanitarian crisis with
millions of hungry and thirsty migrants walking on foot for
hundreds of kilometers while the government was not bothered.

This Hon'ble Court was just as insensitive as the government,

putting all its faith in the government without proper
adjudication of the PILs filed before it.

169. Till the Government did not issue guidelines allowing

interstate travel for stranded migrants, tourists, students, this
Hon'ble Court also did not pass any order. After huge public
outcry, Government allowed travel and resumed limited train
service, but this Hon'ble Court refused to pass order that

migrants would not be charged even thottgh such migrants had

lost their jobs and savings.

170. After it was criticized by several prominent jurists as failing

in its basic constitutional duty, this Hon'ble decided to take up
rhe case Suo Motu lslvff (C) No. 6 of 20201 when the peak of
the migrant crisis had already passed and thereafter, it

ultimately passed an order that migrants would not be charged

and that charges would be borne by the states, even as it
allowed railways to make money from transporting migrants.

171. Former Supreme Court Justice Hon'ble M.B. Lokur in his

article. dated 28.05.2020, titled "Juslice Madan Lokur
Supreme Court Deserves an 'F' Grade For lts Handling of
 t26
Migrants" published by The Wire, severely criticized the

handling of the migrant crisis by this Hon'ble Court as follows:

Additionally, the court recorded the statement of the

solicitor general that "within 24 hours the Central
government will ensure that trained counsellors and/or

community group leaders belonging to all faiths will visit

the relief camps/shelter homes and deal with any

consternation that the migrants might be going through.

This shall be done in all the relief camps/shelter homes

wherever they are located in the country." Twofeatures

clearly stand out. First, the Supreme Court accepted

what it was told - hook, line and sinker. True, there was
nothing on March 3I to doubt the correctness of the
statement that no person was walking on the roads at

1 1.00 am but is the court so naive as to seriously believe

such a statement? Is the court also nalve enough to

believe that a circular issued by the Central government

could work wonders and ensure that a few lakh persons

(not thousands) actually stayed off the roads? If o

statutory order issued by the National Disaster

Manogement Authority and the Ministry of Home Affuirs

acting in exercise of powers conferred by the Disaster

Management Act could not ensure the implementation of
a complete lockdown, could a mere circular prevent

migrants fro* hitting the road? Really? Subsequent

hearings in the case on April 3 and 7 confirm that as on

March 3l , the Supreme Court did not even bother to

 127

question the statement made or hold the Central

government to account, despite more than enough
evidence available everywhere. Newspaper and media

reports were ignored. Given the circumstances, was it

nol the constitutional obligation, not duty, of the

Supreme Court - a court for the people of India and not

a court of the people of India - to ascertain that a.few
lakhs (not thousands) of migrants are well taken care of,

physically and emotionally? lt is not that the court was

expected to disbelieve or distrust the estoblishment

represented by no less than the solicitor generol, the

court was only required to ensure through the principle

of continuing mandamus that the solemn ossuronces
given to it are faithfully carried out. Sorry, the court

completely failed in this - forgot what public interest

litigation is all about. If a grading is to be given, it
cleserves an F. True, lhe evenls were unprecedented as

far as the government is concerned, but the events were

also unprecedentedas far os the migrants are

concerned. [Jnfortunately, the lack of interest and
compassion shown by the court was also unprecedented'

Here wos on opportunity handed over on a platter to the

court to be more proactive ond assertive keeping the

interest and constitutional rights of the hapless people in

mind. The initial failttre of March 31 and in tv'o

subsequent heorings wos compounded in the final

hearing on April 27, when the Court passed a rather

tepid order to the e.ffect that the solicitor general had
 128
agreed that the interim directions passed on March 3l
would be continued [actually no interim directions had
been passedJ and the suggestions made would be
examined and appropriate action taken. On this basis,

the petition wos disposed of, On that day, humanitarian

law died a million deaths... .....What could the court have

done? Public interest litigation is all about public

interest. Well-meaning persons approach the Supreme
Court for the enforcement of constitutional and statutory
rights of those who have no access to justice. This is
precisely what the petitioner (and others) did. The

Supreme Court was approached on behalf of migrant

labourers on the road for a do-something direction.
Sadly, the court let them down, badly. The court could
have asked pointed questions to the state. It could have
asked if the Central government had a plan of actionfor
the "unforeseen developntent" (an expression used in the
status report); it could have asked for the steps taken
and proposed to be taken to mitigate the hardships that

the migrants faced; it could have asked if the state

governments were geared up .for the massive in/lux of
migrants whose presence "would aggravate the problem

of spread of the virus. " Issues of socio-economic justice

and constitutional rights are vital and raise a whole host

of questions, but not one was asked in a public interest

litigation, and the issue buried ten fathoms deep. If any
event ever shook the collective conscience of the nation,

the travails of the migrant labourers did......One thing is

 129

cleor - the migrant workers, women (some of them

pregnant), children and infants will remember these dark

days till the very end. Images that have haunted us for
two months ond the horrific struggles of mitlions will
remain etched in our psyche and many will long
remember that when it came to the crunch, the Supreme

Court did not see lhose images or read those stories.

Over the past few months, constitutional rights and
remedies were overlooked and socio-economic iustice, a

cornerstone in the preamble of our constitution, was

disregarded. Some eminent members of the legal
fraternity have already expressed dissatisfaction with the
present-day functioning of the Supreme Court. Isn't that

tragic or is it farcical?

A copy of the article, dated 28.05.2020, titled "Justice Madon

Loku.; Suprente Courl Deserves on'F'Grade For lts Handling
of Migranls " published by The Wire is annexed as Annexure
c4 ( qso- 45r)
172. Former Chief Justice of Delhi and Madras High Courts and

former chairperson of Law commission of India Hon'ble

Justice. A.P. Shah too criticized the handling of migrant crisis

by this Hon'ble Court in his article dated 25.05.2020, titled

"Failing to perJornt as o constiltttional court", published by
The Hindu in the following words:

a
pnrynf rc uorcsDdau lo Wol aW {q Qa1nrpawwt
uD
1)n4S .Sr aUO"" "'SuOPTOUD SruaaS "tCuaStawa
Sur.rnp 'a,taq uotpDa"t stt os 'pua8a1 lo tlws aqt v (sta77a1
ataw Dtt poutDl.tarua atad4 suottgad ataqm) uotTctpst.tn[
,Qo1o1nda sy :{1t1ownt qcns uo pa$tsut ,Qa"rut sotl
uno) aW rug 's1rcdatto slsoq aqt uo ,{1a"taw, uno) aqt
Surycoo.rddo tot pa1oZ1tso) uaaq ad.oq sta,Onol 'Q1onbg
',paddo\s aq sBuryt q)ns uD) Moq, asnDcaq paprcAo aq
louuoo pailq a.taw q)o,tt {om1ru"t uo Surdaaq s"tamoqDl
Tuot7rru ataq$ ruapno cgfutoq aW qil sruapnut
'"to !(,sa&ou lou, 'Qams) paau Qqtssod taqt uoc
a.tout lDtlr os '{op D slDaw a,tonbs oALl LllttA vafioqDl
apmo"td r(poatlo sluau,tu.ta^o3'"to !acuatatta1ur 1otcrynf
a^oqaq pu saop 'snqt puD rtu\odto .tafiDw D fl sfitnoqDl
Tuot7tw to uotttpuo) aW :qnwil alqouoqsanb
p.ta^as apolu soq Ltno) aW 'sltolt!\ad asaql Sutu"tnofpo
rc 3u17ca{at q"""""Lmo) puoqnu$uo) D so r.utoltad
Qa1onbapo o1 papol puo 's.tilltou luot8tw lo suotlltw
uvuop pl sDq U 'os Surop u1 'uouuusuo) aW Dpun
pamsua 'acusnf ot ssac:.D to ryfit pruawopun/ tsow
aqt lo suanil) &uiluap v uno) ary taryat r(uo SuttuotB
1ou Qadtrcalla 'waqt Sutu.tnohD .to suotrqad asaqt
{g
llupD o7 Sutsntat ',ta(wol [tod.r st! u! pnuocsua paururua,t
soq unoJ awa.tdng aW 'uoqonfis aW Suruorysanb
suotrtad uo 3un1o7{o paa$m rug 's,tatnoqol ruot8lw ayil
suo4nlndod alqonulnd,lo asory {llorcadsa puo 'pappt^
[1sso,t8 uaaq Zuu.oq suaryrc to uq8pt lotuawopunt
o7 s1urod nuapaa a"tou.t puo q8noua 'ut4opl)ol sryl uJ
0tr
 'stu7?!tll nqp qilM awu pnryn[
snonard nt a1adwoc ot ayjotd aql n {auow aW .taqlta
anoq tou op oq/^ 'stuot7rut to suorlpru to ry31d pal
aqt 3u1tou31 ,Qsnorpn\s ailLlft' 'lsr1ou"tnof alrtotd-q8ry o
lo sacuolau8 aqt ,to 'uotlo.QstutwpD plcl,tc .tDllop-uotiltq
o tol almt saq pW l.olo) aruatdng o qttw saqasillo
pu{ am 'topo1 'rua1qoil ary q uo\npsa't o 8uryaas
ut taqlaSol sautoc auo,Qad.a a'taLlw 'sautod aLfi ilo puo
unoc aql uaalwaQ uog2 aflrunqolp) D aQ ot rygno '\col
ut 's1ld 'ruaaufiAoB aql 6uro3o sniloru puosn^pD
sD asaqt Surpaq s! unoJ aW ruq 'lottosn^pD-uou aq ol
s! 1td o
to fiacuoc aqJ
'7ld aW lo tnaq aqt P satl sryJ
rtoquq ilaqt uo suoltrailp aputdo"tddo yaas uo) ,,u1qnd
ary to .taqwaw {uo,, puo 'alqDnuru^ puD uappuluA4op
'tood aql lo s1q31.t aLfi lo uoucato'td ary atnsua
o1 pauBrsap uawnqsur cgficads o ato s'Ild 'suo!to8!t!t
tsaarut upnd qcns 3ur1oa.4 s! uno) aW l\oq to n17ow
atil s! aaqt 'puoras 'fiqs 'toop aql &u1ruao1s rQlocrlco'td
unoc aw alqDr0^D lou .s/ acrcqc pw uaLa
^sl
'aaq ruq 'sLtnoJ qBW aql sptDwol sauott4ad pa8pnu
$Dal p a^oq pruow unoJ aqt 'Qttourp.tg ',Qtltqrsuodsat
s,aMficaxa aLfl s! l! lotll sauturalap unoJ aql asnocaq
ssatpil rc! slmo) aW Surqcootddo wo'{ stauouuad
Surponsnp {1aa'1co s, l! isuotiltad asary Surutnoho
,to 3u4ca[a"t rQataut rcu s! uno) aql '$'t!l 'suotlot.tasqo
ouJ stdutotd 7t puo 'tlouDnus nry 8ullPuDq ut rQu'tyrsuas
rtt
 132
A copy of the article dated 25-05.2020, titled "Failing to

perform as a constitutional court", published by The Hindu is

annexed as Annexure -

BLOCKADE OF 4G IN J&K

173. Between 04.08.2019 and 05.08.2019, internet services were

discontinued in the valley. This Hon'ble Court, vide its

judgment, dated 11.05.2020, passed in Foundationfor Media

Professionals vs. Union Territory of Jammu & Kashmir & Anr.

[\M.P. (C) Diary No. 10817 of 20201 upheld the Central

government's refusal to restore 4G internet services in the UT

of Jammu and Kashmir on the ground that security situation

justifies the same. Surprisingly, this Hon'ble Court issued
directions for the formation of a "special committee"
comprising Secretaries at national, as well as at State, level "/o
look into the prevailing circumstances and immediately

determine the necessity of continuation of restrictions". The

Special Committee comprised of: - a. The Secretary, Ministry
of Home Affairs (Home Secretary), Government of India; b.

The Secretary, Department of Communications, Ministry of

Communications, Government of India and c. The Chief
Secretary, Union Territory of Jammu and Kashmir. Ironically,

two of the three members of the said "special committee" were

the very same officials who had directed imposition of the 4G
ban in the first place. The formation of such a committee was

in violation of the very basic tenet of naturaljustice, i.e. no one

can be a judge in his/her own cause. In effect, this Hon'ble
Court outsourced its constitutional role to executive, as a result
 133

of which executive (violator of fundamental rights) is to decide

whether the executive is correct in violating the fundamental
rights of the citizens or not.

174. Supreme Court Senior Advocate Mr. Arvind Datar, in his

article dated 07.06.2020, titled "The Dangers of Outsourcing
Justice", published in Bar and Bench wrote as follows:

The role of the Supreme Court as o sentinel on the qui

vive is to oct os a dyke ogainst unwarranted

encroachment of our fundamental rights. The 4G

decision has spread darkness over Jammu & Kashmir

and made life indefinitely miserablefor 1.3 crore people.

The Review Committee, to be best of my lcnowledge' has

not even met and, even if it does, is unlikely to retract

-fro* the harsh position the executive has taken. When

the Solicitor General has vehemently iustified the
imposition of 2G, it is astonishing, if not shocking, for

the Supreme Court to expect o Special Review

Committee to grant any relief to Jammu & Kashmir. This

judicial retreat and the increasing tendency to turn a

Nelson's eye on the ritual incantation of national

security and terror to iustifii violations of fundamental

rights is a cause for serious concern.

If benches of the Supreme Court choose to repeatedly pul

Article 32 in cold storoge, it is a matter of time before
 134
Indians begin to lose faith in this institution. Let us not

forget the chilling implication of what Dante said in

Canto III of the lnferno - "All hope abandon ye who
enter here " .

A copy of the ar-ticle, dated 07.06.2020, titled "The Dangers of

Outsourcing Justice", published in Bar and Bench is annexed as

Annexure C 47 ( q 6o-tt 63)

175. I could multiply these instances but I think the above cases

and their decisions and the inaction of the courts in dealing

with some of these critical cases are enough for me to form my

opinion about the role played by this Hon'ble Supreme Court in

last 6 years in undermining democracy which bonafide opinion

I am entitled to form, hold, & express under Article 19(l)(a).

fli*lt\(t- Efiuftu^
DEPONENT

VERIFICATION

I, the above named Deponent do hereby veriff that the contents

of the above Affidavit are true and correct to my knowledge,
that no part of it is false, and nothing material has been
concealed therefrom.

verified at New Delhi on thisful auy of Ahf\r,S'zozo

fl*n"-f ek,fi\
DEPONENT