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The 4 judges who held an unprecedented press conference which many agreed has tarnished the image of Judiciary in India stated that their “Irreconcilable disagreement with the CJI” was based on the allocation of cases to different benches which was arbitrary and overlooked the “Seniority” of the judges. Since the judges have appealed to the nation to “Protect Democracy”, I as a citizen need to make out some points.

The Justice Loya death case appears to be the most disturbing case as far as the advocates such as Indira Jaisingh and Dushyant Dave are concerned and since Justice Gogoi seems to agree, we can accept that the four judges want this case to be heard before them and not under some other “Junior” judge.

It is another issue why these judges want this case only before them and donot trust the other judge. One interpretation of this is that by admitting the case, they could have embarrassed Mr Amit Shah to say that there is potentially a “Murder” charge being investigated by the Court which could consider him as a “Suspect” and when the CJI frustrated this plan, they lost their cool and held the press conference.

Additionally, it appears that the other most sensitive case now before the Supreme Court is the Aadhaar case where the “Constitutional Validity” of the system is in question. The intention of the Supreme Court was some what evident when during an earlier hearing, the Government brought an argument that “Privacy is not a fundamental right”, it jumped to constitute a 9 member bench under the previous CJI Justice Kehar and quickly brought out a 547 page judgement for a single line order “Privacy is a fundamental right under article 21 of the Indian constitution”. This defeated the argument of the Government and strengthened the argument for scrapping aadhaar. if done, the opposition can use it for embarrassing the Government much more than the GST issue.

Besides the opposition wanted to preserve their “Benami” properties which Modi was threatening to identify by making it mandatory to link property registration with Aadhaar. I feel this was more critical than the Justice Loya’s case.

The opposition felt that if the bench hearing Aadhaar can be managed by pliable jduges, they could get Aadhaar scrapped and it would be the biggest coup before 2019 elections.
Unfortunately, it appears that Justice Dipak Mishra is again frustrating them by denying an opportunity for these judges to be on the bench which can scrap Aadhaar. CJI perhaps feels that these judges may have a conflict of interest with their relationship with Mr D Raja, Mrs Indira Jaisingh, Mr Dushyant Dave etc., as regards the Aadhaar case and hence cannot be on the bench hearing any case in which there would be a strong anti-Government sentiment.

We must appreciate the vision of the CJI in this regard.

If these judges with conflict are not involved in the Aadhaar case, it would be better since the case can be decided purely on merits and not on preconceived notions of the senior judges.

Aadhaar is therefore the key to what appears to be an unprecedented move of the 4 senior judges to take on the CJI to the extent that media already started talking of his possible impeachment. They are now disappointed that the coup attempt has failed at least for the time being.

In one of the online surveys 69% respondents held them wrong and in a way “Impeached them in public perception”. This is the people’s verdict they wanted during the press conference and they should respect it.

I anticipate that out of the four at least one of them may decide to resign to uphold the principles that he wanted to demonstrate by the uprising to protect democracy. Will it be Mr Chelameshwar? or some body else?… we need to wait and observe.

Naavi

The Four judges of Supreme Court who recently held a press conference appealed to the public through the media with a request ‘please take care of the institution and take care of the nation’. The judges namely Justices Chelamaeshwar, Rajan Gogoi, Madan B Lokur and Jurien Joseph were complaining that the Chief Justice as “Master of the Roaster” is actually behaving as a “Master” and he should not do so. They said that their efforts to make him allocate sensitive cases only amongst the top 5 judges were not being heeded and some cases are being allocated to the junior judges.

The revolting judges agreed that this was an unprecedented situation and they wanted to go through this exercise as otherwise history would accuse them of having sold their souls.

The conference itself was held very clumsily. The judges did not have the press release nor a proper statement to be handed out to the press. There were favoured lawyers who were in the crowd of the journalists and Mr Shekar Gupta a veteran journalist was even invited to sit on the dais.  Immediately after the press meeting, the CPI party leader Daniel Raja, a known opposition party leader was seen shaking hands with Justice Chelameshwar giving a political colour to the entire episode.

The judges came out as completely inexperienced in not only the manner in which they conducted the press conference but also the manner in which they were fumbling for words during the interaction.

Justice Chelameshwar said that what they wanted to share was a letter they had written to the CJI a copy of which would be shared and that is all they wanted to say. Gagoi confirmed that there is nothing more to say beyond the letter but inadvertently admitted that the admission of the case in the Justice Loya’s death was a reason for this press meet.

Mr Dushyant Dave has been the advocate strongly advocating that the Justice Loya case should not be heard by a specific judge and it should be heard only by one of these four judges as if they would give a decision in his favour only.

Another advocate Mrs Kamini Jaiswal who is bitterly against Mr Amit Shah indicated in her subsequent statements that the possibility of Mr Amit Shah not being convicted was the reason behind this revolt. It was as if Teesta Setlwad was speaking through Kamini Jaiswal.

Yet another advocate Indira Jaising has also been vocal with similar views indicating that the politics of “Anti Amit Shah” forces were truly pushing the judges into a corner with the press conference.

It appears that these three advocates are either directly or indirectly responsible for the current mess in the Judicial system and are unmindful of the damage that they have done to the Indian judiciary for their own personal gains.

It was not surprising that Congress followed up with its own Press Conference though it was also as indecisive as the Judges press conference. It appeared as if Mr K.S.Tulsi had strongly opposed Congress getting into this controversy but Kapil Sibal and P Chidambaram pushed through the conference.  Rahul Gandhi in his usual style spoke a rehearsed sentence and ran away without taking questions.

With the Meeting of D Raja with Chlemeshwar and the Congress press conference, it was clear that the Four Revolting Judges were playing the tune of the political parties. However much they may try to whitewash their intentions, the perception with the public is clear that this was a political agenda playing out through the four judges.

It appeared that these four judges wanted to say more but were restraining themselves. Finally the charges made by the four judges appeared hollow and self defeating. Had they been more forthright, they would have atleast sounded more convincing.

Since then, several legal luminaries are expressing their views on the points raised. A large number of advocates are on the side of the Four revolting Judges while a large number of past judges are holding  the view that conducting of the press conference was wrong.

If we ignore the perceptions and focus more on the problem they have highlighted, then solution is not difficult to find.

The accusation is that while the CJI is considered as having a discretion to constitute benches and allocate cases to any of them, he should do so only with the consultation of the 5 senior most judges who form the collegium.

While the Judges 2-5 in seniority who held the Press Conference hold that CJI is only the “First amongst equals ” and not more important than any of them, they consider that other judges of the supreme court who are 6-25 in seniority are lesser mortals who are not equal to the first five.

This does not seem to be a logical l argument and has to be rejected.

Either all the judges have the privileges attached to their seniority in which case the CJI as the senior most has higher privileges that includes the management of the roaster, or they should agree that all judges of the Supreme Court are equally competent to handle any legal matter before them without fear or favour and with the legal expertise required.

Expecting that the rule of “First amongst Equals” applies only to the first five and not to all the 25 judges of the Court indicates a self serving argument.

If we admit that the roaster allocation had some “Motive” behind it as implied by these four judges, we can also imply a “Motive” behind the accusation of the four revolting judges. If CJI wants to avoid handing over some sensitive cases to any of these four and wants to give it some other judge down the line which is a departure from the procedure indicates a “Bad motive”, then the demand that such cases should be handed over only to them and not to anybody else also indicates a “Bad Motive” on the part of the four judges.

If we leave aside these perceptions since these judges are not transparent about their motives and want to hide behind the respect they enjoy as judges of the highest court of the land, let us accept that the only grievance is that the allocations are being done not in accordance with the established procedures of the past where all the five senior most judges worked together as a collegium and distributed sensitive cases only amongst themselves so that none was unhappy but the current CJI is trying to break this tradition.

Perhaps this is making these judges insecure and their friend lawyers also more insecure because they were perhaps existing in the system more by the strength of their relationship with the judges rather than their ability to fight a case on the merits.

The solution for this is not in asking the media and the public to adjudicate since what “We the people ” may say will not be palatable either to these judges nor to their favoured lawyers. Nevertheless since they have sought our advise, let us provide them the advise.

The problem is about allocation of cases to the 25 judges of the Supreme Court in an equitable manner that justice is done to the petitioners. The criteria of seniority is only relevant as a demonstration of the expertise of a judge and not otherwise. Each judge may however carry a badge of domain expertise based on the type of cases in the past where he would have examined a particular domain in depth and thereby gained an expertise. There cannot be any expertise based on qualifications since the College qualifications of all the judges are at least 3 decades old and has no relevance today. For example, Mr Chelameshwar being a student of Physics in his college does not make him a domain expert in a case involving Noise pollution or Electric outage etc.

Either the judges have to declare their top three areas of interest/specialization based on their own self introspection or based on the cases they might have handled in their career  and have to be tagged with the domain of expertise which were required to resolve them.

Assigning a “Domain Expertise Tag” to every judgement released by a judge in all the Courts is a process that has to be introduced now so that after a decade or so, it becomes a reliable barometer to tag a Judge with his area of domain expertise. Criteria for this needs to be developed and adopted.

In the meantime, an adhoc measure can be adopted where each judge of the Supreme Court is asked to declare three areas of interest that is used as his “Specialization Tag”.

Every judge will automatically have a seniority tag also. Using these two tags along with a “Random Allocation Tag”, it is possible for the Chief Justice to select a Judge or a Bench of multiple judges for assigning any case.

For this purpose, the CJI may categorize a case as “Requiring a specific domain expertise”. He can use is “First amongst equals” privilege to do so. Similarly, he can decide on whether the case requires a single judge or more judges to be in the bench.  Having decided these two parameters out of his privilege of being the CJI, he can proceed to allocate cases in the following manner. CJI can also determine the workload of a judge and determine if he has to be part of the selection for a given case or not.

a) In case of single member allocations, the choice can be completely randomized, such as picking up a judge out of the 25 (or lesser numbers if some is over burdened with cases at present). It is possible to do this by computerized allocation with priority criteria for domain expertise and seniority to be set to zero.

b) In cases where two  judges are there in a bench, one of the selections can be made on domain expertise criteria and the other on random basis.

c) In cases there there are three or more members in the bench, one member may be selected on seniority basis, second on domain expertise basis and the third randomly.

In larger benches the criteria can be repeated for the balance vacancies to be filled up.

This process leaves enough scope for the CJI to exercise his privilege and also provide opportunities for the senior members to be part of the important cases where there are at least 3 members. The single member benches which are prone to manipulation by friendly advocates would be randomized so that no advocate would gain an unfair advantage with a petitioner saying “I Know this Judge, Come to me”.

If the Supreme Court wants a software to be developed for the purpose, I am sure that there would be many software professionals who would be willing to develop it for free as their contribution to protect the institution which is the concern of these four revolting judges.

Naavi

At a time when India is debating a new law on Data Protection, an interesting question has been raised  before the Supreme Court about the “Right of Privacy” and whether it extends beyond death. The recent judgement of a 9 member bench of Supreme Court referred to as “Puttaswamy Judgement” was hailed as a “Land mark” judgement because it held that “Privacy is a Fundamental Right”.

At Naavi.org, we have discussed the Privacy Judgement in detail. In conclusion, we discussed the need for a proper definition of Privacy before we worry about how to protect privacy. (Refer: “The Privacy Judgement… Conclusion.. Need for Definition of Privacy” )

According to us, it was a failure of the Puttaswamy judgement that it did not define Privacy as a Right and only went about beating around the bush on the “Protection of the unknown and undefined right called Privacy”.

How can we protect a Right without defining the Right itself?

It is not prudent to make a law for protecting a concept which itself is not properly understood and defined. If we attempt to do it, then it will provide endless scope for litigation and will not help honest citizens.

Criminals will however take full advantage of such ambiguous law and ensure that they thrive at the cost of honest citizens.

The mistake committed by the 9 member bench to declare Privacy as a Fundamental Right without a definition of Privacy has now opened the question as to whether the “Right of Privacy” extends after the death of a person.

I hope this lacuna will be corrected in the Data Protection Law that the Government is trying to develop.

Background

It must be recognized that the current issue, namely “Whether the Right of Privacy extends beyond death” has arisen because there is a need to access and verify finger print data of late J.Jayalalitha,  available with UIDAI as well as the Jail authorities in Karnataka to decide on an allegation that her finger print was affixed on a document when she was in a state of health where she was either already dead or was unconscious.

There was a reasonable ground to believe foul play since during the entire period of her hospitalization, access to her was not permitted to any body other than a small group of people. Even prominent political leaders including Mr Rahul Gandhi and Venkiah Naidu came to the hospital and returned without even looking at the patient.

The prima facie perception which the citizens carried at that time was that the hospital and the Sasikala faction of AIADMK were in collusion and did not declare the true condition of her health. Even the current dispensation of the TN Government did not know her true state of health.

During such a state of doubtful health, she was supposed to have affixed her thumb impression on one of the documents which has now been questioned.  It was a reasonable doubt in the minds of the public that the thumb impression was not willingly placed by a person in understanding of the document on which it was placed and hence it was a “Forgery” and a “Fraud”. The fraud is on the citizens of India both those who like/d or dislike/d Ms Jayalalitha.

Now the honourable Supreme Court has intervened on a petition before the High Court and stayed a request for verification of the genuineness of the thumb impression.

Unfortunately, by granting a stay, The Supreme Court has intervened in a case where Criminal Conspiracy has to be investigated and the only persons who could benefit from this stay are people who want to hide the actual events that surrounded the mysterious death.

Even the UIDAI has wrongly taken a view that it cannot submit the copy of the thumb impression to help in the judicial process and in the process supporting an attempt to protect the secrecy of the doubtful death rather than bringing out the truth.

By trying to protect this questionable request not to grant access to the finger print and proceed with the investigation whether it was genuine or not under the garbs of a discussion of Privacy the Supreme Court will be further muddying the waters to an extent that people will question the integrity of the Supreme Court. Let us not forget that some of the Judges who will sit in judgement in this case may be persons who could have acted as Jayalalitha’s advocates in her days in power.

What is Right to Privacy

It is necessary for us to first define the “Right of Privacy”. As a fundamental right, Privacy can only be a Right that a Citizen can exercise against the democratic state committed to a constitution. If one “Fundamental Right” is considered the “Right that extends beyond death”, every other Fundamental Right can also extend beyond death.

If we define Privacy as a “Right to Life and Liberty” there is no logic in extending it to a dead person who does not have life or liberty.

Privacy cannot be equated to “Right of Secrecy”.

In a situation where the person has died, “The right to privacy of the dead person” cannot be extended as “Right to secrecy of the people around not to provide truthful information” or “Right to protect the deceased from loss of reputation”.

There is no doubt that the Supreme Court has powers to give any judgement and no body can  question their wisdom if they say Privacy extends beyond death. They may even quote some international practices and justify whatever they decide.

But if they do, it cannot be seen as anything other than an attempt to protect the secrets surrounding the death of Ms Jayalalitha and to protect those who could be implicated for causing her wrongful death and compounding it with fabrication of documents with her alleged finger print. Hence whatever judgement they come to will be seen with a sense of suspicion and distrust.

The feeling that ” I have a sense of Privacy” is a “State of Mind” and not a “State of Physical location”.

Let’s think……

When a person is in the Mumbai local, does he have a sense of loss of privacy because of the proximity of the next person? When a person is all alone in a deserted street in the night, does he enjoy our right of privacy?….

If a human desires to have other people around him in certain circumstances and does not mind them being too close physically, Privacy cannot be a matter that is determined by the physical proximity of the person or Right to access his body or private physical space.

Right to “Peaceful state of mind” is a creation of the person himself and not that of the environment. Hence Privacy cannot be equated to anything physical but can only be a state of mind of a person. If a person feels that he is alone, he will have a sense of privacy even in a crowd. If not, he will not feel “Privacy” even if he is in a graveyard.

Being a “Mental State”, Privacy can only be an experience of a “Living Person” and not a dead person. The Right to protect the information about a dead person can only be a “Right to be protected against defamation after death” and not a “Right to protect Privacy”. Right to be protected against defamation is fine but in the current case, it is not the reputation of Jayalalitha at stake and it is the reputation of the people who were around her at that time which is at stake. This cannot and should not be linked to the Right to Privacy of Jayalalitha living or dead.

It would therefore be appropriate if the stay is vacated forthwith and the UIDAI also directed to assist the judicial process.

I would like to point out that if the Supreme Court makes an exception to this case because they may consider that Ms Jayalalitha dead or alive is a special person, then in every other property case where a dead person’s finger print has been affixed on a document after his death, the perpetrators of the crime will claim protection under “Privacy”. There are many past cases where forensics have proved that such property documents were fraudulent and in future there will be no scope for preventing such frauds.

I hope  Supreme Court will be intelligent and honest enough to understand the consequences of holding the Right of Privacy as subsisting after the death of a person and come to the right decision.

Naavi