2011- Year of criticism, from the bench and against it



New DelhiJudicial activism was the key in many Supreme Court observations and judgments during 2011.


CVC THOMAS: A three-judge bench led by CJI SH Kapadia declared “non est” — or nonexistent — the majority recommendation of a high-powered committee for P J Thomas as Central Vigilance Commissioner. The court ruled that the Prime Minister and the Home Minister’s recommendation amounted to “official arbitrariness”, coming in spite of the dissent of the third committee member (the Leader of the Opposition) and without considering the relevant material.

LEADERS vs JUDGES: Rajya Sabha members went on TV to criticise the “growing” cases of corruption among judges and raised a pitch for a Judges Accountability Bill. The CJI responded that an honest judge need not worry about such a bill, and shot back at the parliamentarians for putting all judges in the same category of “corrupt” judges. He went on to issue an open challenge to the lawmakers that if “you” want to dismantle the institution of judiciary, first show how to build a better alternative.

JUDICIAL ACTIVISM: Two back-to-back rulings in July by an SC bench led by Justice Sudershan Reddy were widely criticised as instances of judicial overreach and activism. First, it set up a Special Investigation Team to investigate and bring home back black money abroad. The decision was challenged by the government; a second Bench then reached a split decision. In the other judgment, Justice Reddy ordered the Chhattisgarh government to disband vigilante groups (Salwa Judum) fighting against Naxals, criticising the “new mantra from the mandarins of security and high economic policy of the state — tax breaks for the rich and guns for the youngsters amongst the poor”. The order was later modified. When the controversy was raging, a Bench led by Justice G S Singhvi criticised “some lawyers, journalists and men in public life” for accusing the judiciary of over-reach when it entertains public interest litigations espousing the cause of the poor and downtrodden. “So far, the courts have been used only for the purpose of vindicating the rights of the wealthy and the affluent,” the bench said.

2G BAIL: In February, the Supreme Court had exhorted the CBI, “You must catch them all.” Then in November, it criticised a tendency shown by lower courts to deny bail to any of the persons arrested. “Right to bail is not to be denied merely because of the sentiments of the community against the accused,” Justice H L Dattu wrote in his judgment. Five executives of Unitech, Swan Telecom and Reliance ADAG later got bail.

BHOPAL GAS LEAK: On May 12, the Supreme Court threw out the CBI’s curative petition against a 1996 judgment that described the tragedy as an act of negligence and not culpable homicide on the part of Union Carbide staffers. The court refused to take the blame for fact the eight accused had “walked away” with a two-year jail term from the Bhopal chief judicial magistrate’s court, after a 26-year trial.

AMAR SINGH: The Supreme Court’s displeasure at the CBI’s “shoddy” probe in the cash-for-vote case led to the former Samajwadi Party leader’s arrest. And when he decided to remove the Congress’s name from the list of those he accused of tapping his calls, the SC suspected his actual motives. The court further lifted a five-year-old ban on publication of the tapes of those conversations.

Post-GODHRA: The Supreme Court pulled out of monitoring the Ehsaan Jafri case in which Gujarat Chief Minister Narendra Modi and 63 other high functionaries were accused of several offences. It ordered the SIT to present its report before the Gujarat magistrate concerned. It was the only case involving the riots that named Modi directly.

AYODHYA: The Supreme Court re-kindled the 60-year-old dispute when it stayed an Allahabad High Court judgment, calling it a “leap of faith”. The Supreme Court said it found it “strange and surprising” that the High Court had taken it upon itself to “partition” the site.

GRAHAM STAINES: The Supreme Court invited criticism when it confirmed the life sentence awarded to Dara Singh, who burnt alive the Australian missionary and his two sons in 1999. The court cited the reason that the intent was only to teach a lesson to the father about religious conversion. The court later suo motu deleted this portion from the judgment.

NITHARI: A bench led by Justice Markandeya Katju made a decisive comment when it observed that Surendra Koli “appears to be a serial killer”. The court went on to confirm the death penalty awarded to Koli.

EUTHANASIA: The SC for the first time allowed passive euthanasia “under exceptional conditions” and set down guidelines for it. The decision came in the case of nurse Aruna Shanbaug.

ENDOSULFAN: The SC banned the production and sale of endosulfan, a cheap but controversial agrochemical used by farmers, noting that the life of one child is more precious than all the financial losses that industry will incur.

BELLARY: The Supreme Court suspended mining in this district, saying miners’ “greed” has overshot the court’s efforts to balance environmental concerns and development.


26/11: The final hearing on Ajmal Kasab’s appeal against the death penalty will start on January 31. The Supreme Court has suspended the death sentence, saying it would like to hear the plea at length as “due process of law” has to be followed.

AFSPA: The CBI has sought a clarification on the extent of immunity enjoyed by Army personnel under this Act and other laws for fake encounter killings. The agency wants the lifting of an SC stay on the trial in a J&K court relating to the killing of seven youths by the Army.

VODAFONE: A judgment is awaited on the Vodafone tax case, in which the company argues it is not liable to pay capital gains tax because the deal to buy Hutchison’s India operations was done overseas.

N-LIABILITY: A PIL on nuclear liability and safety of plants will be heard. The petition wants an independent safety regulator set up.

END OF TERM: CJI S H Kapadia retires in September.



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