Indian’s Diary – e News Weekly
Spreading the light of humanity & freedom
Editor: Nagaraja.M.R.. Vol.13..Issue.35….….02 / 09 / 2017
Given the allegations of impropriety against him, should Justice Dipak Misra become the next CJI just because he is the senior-most judge in the Supreme Court?
On August 27, Chief Justice of India (CJI) J.S. Khehar will demit office. The next in line is Justice Dipak Misra, but should the vacancy be filled up simply by the rule of seniority?
The CJI is a constitutional authority and presides over the country’s judiciary, comprising 31 Supreme Court justices, over 1000 high court judges and over 16,000 subordinate judges. The CJI dispenses justice in the highest court in cases involving complex constitutional issues, issues affecting the rule of law, issues having an impact on governance in the country, issues touching the lives and liberties of 1.3 billion Indians, and dispenses justice in regular civil and criminal appeals. As head of the Supreme Court, the CJI wields wide powers not just in administration but also in constituting benches and allocating matters, often politically sensitive ones.
In the First Judges case, the Supreme Court emphasised:
“Judges should be of stern stuff and tough fibre, unbending before power, economic or political, and they must uphold the core principle of the rule of law…”
In the Second Judges case, the Supreme Court in 1993 held:
“It is well-known that the appointment of superior judges is from amongst persons of mature age with known background and reputation in the legal profession… The collective wisdom of the constitutional functionaries involved in the process of appointing superior judges is expected to ensure that persons of unimpeachable integrity alone are appointed to these high offices and no doubtful persons gain entry. It is, therefore, time that all the constitutional functionaries involved in the process of appointment of superior judges should be fully alive to the serious implications of their constitutional obligation and be zealous in its discharge in order to ensure that no doubtful appointment can be made.”
The Supreme Court thus gave primacy to the CJI in the process of selecting judges to be appointed to the apex and high courts. The CJI thus wields enormous power in shaping the future of the judiciary. That is why the present CJI in the National Judicial Appointments Commission (NJAC) case has warned:
“The sensitivity of selecting judges is so enormous and the consequences of making inappropriate appointments so dangerous that if those involved in the process of selection and appointment of judges to the higher judiciary make wrongful selection it may well lead the nation into a chaos of sorts.”
In Manoj Narula vs Union of India, Justice Misra himself observed, “A democratic polity, as understood in its quintessential purity, is conceptually abhorrent to corruption and, especially corruption at high places.”
Land allotment case
Yet, Justice Misra has surprised many by what appears to be a serious lapse in conduct. He had applied for and obtained a lease of two acres of agricultural land in 1979 (while he was a lawyer) from the government of Odisha. In the affidavit filed by him (as a condition for allotment) he said: “I am Brahmin by caste and the extent of landed property held by me including all the members of my family is nil.”
The lease was later cancelled by a well-considered order passed against him by the additional district magistrate of Cuttack on February 11, 1985, in proceedings under the Orissa Government Land Settlement Act, 1962:
“This G.O specifically provides vide paragraph 4 that a landless person is one who and his family members do not hold land more than two acres and who have no profitable means of livelihood other than agriculture… Therefore I am satisfied that the opposite party (Justice Misra) was not a landless person and as such he was not eligible for settlement of govt land for agricultural purpose. On this ground alone, the lease is liable to be cancelled… I am satisfied that the lessee has obtained lease by misrepresentation and fraud.”
It also appears that there were many other persons who had claimed such land by questionable means. In a writ petition filed by Chittaranjan Mohanty in the high court of Odisha, the court had passed an order on January 18, 2012, directing the CBI to enquire and investigate into unauthorised encroachment/occupation of government lands in the said area. The CBI had registered preliminary enquiry stating:
“(a) PE 1(S)/2011 for probing into the alleged unauthorized encroachment of entire Government land at Bidanasi Area of Cuttack District comprising of 13 mouzas viz Bidyadharpur, Bentakarpada, Ramgarh, Thangarhuda, Brajabiharipur and Unit 1 to Unit 8.”
The CBI submitted a final status report on May 30, 2013, wherein it expressly found that:
“In this case, Shri Dipak Mishra, S/o Raghunath Mishra, Vill-Tulsipur, PS- Lalbagh, Cuttack & permanent R/o Banpur, Puri was sanctioned 2 acres of land by the then Tahasildar Mr. J. A. Khan on 30.11.1979 at Plot No 34, Khata No 330, Mouja- Bidhyasharpur.”
“The allotment order of Tahasildar was cancelled by ADM Cuttack vide Order 11.02.1985. But the record was corrected only on 06.01.12 as per the order passed by the Tahasildar, Cuttack only after 06.01.2012.”
The CBI further found that:
“Enquiry has already revealed certain instances of irregular leasing out of government land to ineligible beneficiaries by the Tahasildar, Cuttack Sadar during the period 1977 to 1980 in Bidyadharpur Mouza. Though some of the cases of irregular lease were cancelled by the ADM (Revenue) on review but the leaseholders had not vacated the said land. Even the records were corrected after 06.01.2012 even though the lease was cancelled during 1984-85.”
The fate of the high court proceedings subsequent to this report remain unclear.
A false statement made in declaration, which is by law receivable as evidence, and using as true such declaration knowing it to be false, are serious offences under Section 199 and Section 200 of the IPC, punishable with up to seven years of imprisonment and a fine. The filing of that affidavit by Justice Misra is thus a very serious matter.
Justice Misra’s name has even appeared in the suicide note by former Arunachal Pradesh chief minister Kalikho Pul. Though no investigation has taken place in that matter, the inquest report found the suicide note to be genuine. Under Section 32 of The Evidence Act, a suicide note has evidentiary value and must be followed up with a detailed enquiry after lodging an FIR, if need be.
Recently, newspaper reports have also appeared about Justice Misra’s name cropping up in the course of an enquiry by three judges of high courts into allegations against two sitting judges of the Odisha high court.
Should such a person become the CJI, even if he is the senior-most judge? Seniority is an important principle, though not the only principle for appointing the CJI. I have always opposed the supersession of judges for political or ideological considerations. As law minister in 1977, I had opposed the strident demand from my party to supercede judges who had decided the infamous habeas corpus judgement during the Emergency. In this case, however, the issue is of unsuitability on serious ethical considerations.
The recommendation by the present CJI for Justice Misra to succeed him is unfortunate in light of his own observations in the NJAC case. The country will now have to look up to the president and the prime minister to perform their duties, send back the CJI’s recommendation and suggest the appointment of the next judge in seniority.
Shanti Bhushan was India’s law minister from 1977-79 and is a senior advocate in the Supreme Court.
A three-member committee of high court judges set up to probe two Odisha judges had to halt their inquiry last month when Justice Misra’s name cropped up.
New Delhi: Can the Modi government appoint Dipak Misra as the next chief justice of the country without first resolving long-pending allegations that he acquired public land intended for the landless poor by submitting a false affidavit? This is the question being put to the prime minister and law minister by Adish C. Aggarwala, president of the International Council of Jurists, in the wake of Chief Justice (CJI) J.S. Khehar’s decision to recommend Justice Misra as his successor. Justice Khehar retires on August 27 and Justice Misra is the senior-most puisne judge at the Supreme Court.
Arguing that Justice Misra’s appointment as the next CJI would “severely compromise the independence of the judiciary,” Aggarwala wrote to Justice Khehar on July 24 asking him to first resolve an ongoing enquiry in which Justice Misra’s name had cropped up before the latter takes over the top judicial position.
An Odisha-based activist, Jayanta Kumar Das, had alleged in a letter to then CJI T.S. Thakur in September 2016 that Justice Misra misrepresented facts in attempting to get hold of public land meant to be distributed to the landless poor for agricultural purposes.
According to information furnished by Das, Justice Misra had applied for allotment of the land to develop a fodder farm in 1979. While in his application to the Odisha government he declared that his family owned 10 acres of land although none of it was in his name, he allegedly concealed this information in a subsequent affidavit.
The affidavit later became the basis for allotment of two acres of land to Justice Misra.
The discrepancy between the application and the affidavit was noticed in 1985 by the additional district magistrate of Cuttack, C. Nayak, under whom the matter rested. Nayak ordered the cancellation of the allotment, noting that Justice Misra came from wealthy and propertied family and, therefore, was not eligible to receive the land grant.
Das’s letter to Justice Khehar quoted from the ADM’s order:
“I am satisfied that the lessee has obtained lease by mis-representation and fraud. The tahsildar has committed material irregularity in the procedure for which the public interest has suffered. It is common knowledge that many poor villagers, particularly weaker section of the community have no means of livelihood and the land available in the village should be made available to them to enable them to earn their livelihood and give them a sense of economic security which is the declared policy of the state”.
However, the ADM’s order was taken into consideration only in 2012 after one Chittaranjan Mohanty moved the Odisha high court in 2009 to demand an enquiry into the matter. The high court, while hearing the writ petition, ordered a CBI enquiry, which in 2013 confirmed the alleged irregularities in the land allotments. Following this, the revenue court ordered cancellation of the land allotments.
Despite the CBI’s findings, the case, which is listed before Justice Indrajit Mohanty, has not progressed.
Probe stopped because SC judge’s name cropped up
Justice Mohanty is one of two Odisha high court judges against whom an in-house enquiry is being conducted, the other being Justice Sangam Kumar Sahoo.
The enquiry committee comprising three high court judges was set up by former CJI Thakur after he received complaints of corruption and misconduct against the two judges. The committee is headed by the chief justice of Punjab and Haryana high court, S.J. Vazifdar.
In the course of the enquiry, the committee was forced to stop its investigation after Justice Misra’s name emerged in the alleged land fraud case. “The allegations against the sitting judge of the SC cannot be gone into by this committee as in-house procedure does not permit this committee to do so. The effect thereof on whether this committee can proceed with the inquiry against the two HC judges will be decided separately,” the committee noted, pointing out that it had no authority to probe Supreme Court judges. Consequently, the enquiry against the two judges also stopped midway.
It was reported that during the enquiry, the complainants also presented the allegations against Justice Misra, who is said to be close to the two judges under investigation.
Against this backdrop, Aggarwala wrote to the CJI that the appointment of Justice Misra should be stalled until a probe committee exonerates him of any wrongdoing. Instead of having an enquiry committee comprising high court judges, he demanded for the sake of judicial propriety that an in-house committee that has the power to probe sitting judges in the Supreme Court be constituted to look into the allegations against Justice Misra.
‘Set up in-house committee first’
Aggarwala said that Justice Misra has neither challenged the CBI report nor has he appealed against the revenue court orders that cancelled the allotment of land to him. He added that since the land allotted to him was taken back by the government only after he was appointed as a judge in the Supreme Court, the collegium and the government of India may not have taken the allegations against Justice Misra into consideration, and that it may now be proper for the CJI to constitute an in-house enquiry committee to probe the matter further before he takes over as the next chief justice.
Aggarwala said that since the Indian judiciary is highly respected across the world, “especially in the matters of jurisprudence found in the judgments of Supreme Court of India and different high courts in India”, it should first make the effort to clear the air around allegations of misconduct against Justice Misra before recommending him as the CJI.
However, the CJI appears to have ignored Aggarwala’s letter – which was written on 24 July – as Justice Khehar, according to reports, has already recommended Justice Misra’s name to the law ministry for appointment as the next CJI.
Aggarwala is, therefore, planning to appeal to the government to ask whether the CJI has referred to the allegations against Justice Misra before recommending his name.
“The chief justice of the high court Punjab and Haryana had informed Justice Khehar about the allegations against Justice Misra on June 15, but the CJI has not responded. Therefore, we are planning to write to the president and the prime minister and request them to look into the letter that the CJ of Punjab and Haryana has written. The government can’t inquire into allegations against a sitting judge of SC. This can only done by the in-house committee. We will request the government to ask the CJI whether he had considered the allegations and formed an in-house committee to probe the matter,” Aggarwala told The Wire.
“In the meantime, the government has the power to appoint an acting chief justice under article 126 of the constitution of India until the matter is fully resolved,” he added.
The allegations against Justice Misra go back to a period when he was a practicing lawyer at the Cuttack high court. In 2011, when an in-house committee found the allegations of corruption against Justice Soumitra Sen of Kolkata high courtto be true, the top court had ordered his impeachment. In Sen’s case, too, the allegations against him went back to the days when he was a practicing lawyer.
Noted lawyer and political activist Prashant Bhushan told The Wire that it may be too late for any action now. “The charge against Justice Misra is serious. However, in view of the fact that it is quite old and now that he is due to become the CJI very soon, it would be difficult to do anything about it,” he said.
It may be noted that a retired Odisha high court judge, B.P. Das, last year, had alleged that his candidacy for the Punjab and Haryana chief justice’s position was scuttled by Justice Misra because he had ordered a CBI probe into the alleged land fraud case in which Justice Misra was also implicated.
Though The Wire was unable to contact Justice Misra for a response to Aggarwala’s letter and the older controversy it refers to, Justice Misra’s associates had last December dismissed Das’s allegations as “baseless” in remarks to the Economic Times. As for the charge that a false affidavit had been submitted by him to obtain land intended for the poor, the newspaper quoted “people close to Justice Misra” as saying that “the land was taken in 1979, when he was a young advocate, and he surrendered it in 1985, for which records can be verified. These are all baseless allegations.”
Justice Das disagreed, telling the Economic Times: “The CBI report also said the land record was not corrected till 2012. Technically speaking, Justice Dipak Misra, among others, from 1979 to 2012, were in possession of this land… There were about 300 allottees. This was a case of encroachment/illegal allotment to individuals, who misrepresented facts and claimed to be landless.”
Justice Misra is not new to controversy. His name emerged in the 60-page suicide letter by the former chief minister of Arunachal Pradesh, Kalikho Pul, earlier this year. Pul had alleged that relatives of top Supreme Court judges had approached him with offers to swing the president’s rule case in his favour.
Justice Misra was the senior judge on the bench that last November ruled in favour of a petition that the national anthem be played before the screening of all movies in cinema halls and that audience goers had to stand to attention for it. In another controversial decision last year, a bench comprising Justice Misra had rejected the Uttar Pradesh government’s decision to provide reservation in promotion of government employees. He also led the bench which upheld the law of criminal defamation.
If confirmed as CJI, Justice Misra’s tenure will last till October 2018.
Editorial : Mishra Threatens Petitioner
– Accountability of Judges MUST
– Remainder to Honourable CJI & Justice Mishra
Mr.Upendra Mishra ( Justice Dipak Mishra Proxy or unrelated ? ) has threatened the petioner Mr. Nagaraja.M.R. for petitioning against Justice Dipak Mishra through facebook posting. Mr. Upendra Mishra indirectly referred about sending petitioner to jail. If anything untoward happens to me or to my dependants Mr.Upendra Mishra , Justice Dipak Mishra , CJI will be jointly responsible along with perpetrators of crime and jointly liable to pay damages.
Police verification is mandatory , before getting passport or before joining government service. If police finds any suspicious connections , activities by the applicant and gives adverse report the person will not get passport or will not be selected for government service. When even for the post of peon in government positive police verification is mandatory , why NOT for Justice Dipak Mishra.? Mishra has been indicted by Revenue Assistant commissioner , CBI, still promotion to CJI why ? Previously too few judges indicted by IB and against the reservation of bar councils were promoted , why ?
Courts of law treats dying declaration of a person or a witness as an important evidence in cases involving common people. Whereas in the case of Suicide of Mr.Kalikho Pul former chief minister of Arunachal Pradesh , his suicide note indicting Justice Khehar , Justice Dipak Mishra , President Pranab Mukherjee , others was not considered as a dying declaration & acted upon in right earnest by SCI , why ? Is there different set of laws for Justice Khehar , Justice Dipak Mishra , President Pranab Mukherjee and commoners ?
Supreme Court Judges take 5 star pay , perks from the public exchequer but don’t give accounts of their actions to public .
The public servants & the government must be role models in law abiding acts , for others to emulate & follow. if a student makes a mistake it is excusable & can be corrected by the teacher. if the teacher himself makes a mistake , all his students will do the same mistake. if a thief steals , he can be caught , legally punished & reformed . if a police himself commits crime , many thieves go scot-free under his patronage. even if a police , public servant commits a crime , he can be legally prosecuted & justice can be sought by the aggrieved. just think , if a judge himself that too of apex court of the land himself commits crime – violations of RTI Act , constitutional rights & human rights of public and obstructs the public from performing their constitutional fundamental duties , what happens ?
In most of the cases , when allegations against judges comes up proper enquiry is not done , no follow up legal prosecution is done. In other cases , no enquiry is done. RTI information about such judges is not given to RTI applicants , PILs filed against such judges are not entertained by courts , PILs are not registered & taken up for hearing. Thereby , guilty judges remain technically innocent as no proper investigation is done , as they are not legally prosecuted by investigating agency , as they are not judged , declared as “Guilty” by any court of law. All court management.
Even if a judge is transferred or resigns or impeached , it is not a legal punishment & definitely not the end of legal prosecution. If a commoner steals a jewellery but returns the same after sometime to the owner with sorry. Is it the end ? is there no punishment for his crime ? In the same way , what punishment for guilty judge ?
Now, take the case of Justice Karnan, apex court took cognizance of Karnan’s way of representation , his sound. Justice Karnan made certain allegations against high court judges through proper official channel to supreme court of india . Why it did not act till months , till date ? Why SCI did not constitute an impartial enquiry committee to investigate ?
When a person calls you repeatedly in a normal polite tone & you do not respond. The caller concludes the hearer is either deaf / dumb / pretending to be deaf & dumb. In such a scenario , caller yells out at high pitch so that the hearer can hear.
Same way , when SCI failed to act on his repeated appeals , he yelled out in open , what is wrong with him ? Actually SCI is on the wrong side , why it did not conduct enquiry in the first place at the first instance?
To silence him SCI Judges , Advocate Ram Jethmalani termed Karnan as lunatic. Are you subject experts in psychiatry ? You are not full fledged experts in your own domain , how come in others. is it not defamation of an individual , contempt of high court of west Bengal ? What punishment for defamers , contemnors ?
Day in day out , since years SCI Judges are making contempt of citizens of india by not answering RTI questions , by not registering PILs in turn covering up crimes by judges , officials & others. Why no punishment to SCI Judges for contempt of citizens of india ?
There is wrong from the beginning. There are fake advocates , Judicial exam papers are leaked , few judges selected are kith & kin of serving / influential judges ( others not bright ? ) , some judges copy during the examination , few favorable junior judges promoted while the talented senior judge is sidelined in promotion. So few candidates are selected as judges in the illegal way , how can they work in a legal way ?
Threatening a petitioner with contempt or brute police force or fixing petitioner in false cases is not ethical nor legal.
Read details at following web pages , attachment & sincerely answer :
Judges SEX crimes
A – Z of Manipulation of Indian Legal System
50% of higher judiciary corrupt, says ex-SC judge Markandey Katju
In suicide note, Arunachal CM Kalikho Pul alleges graft by SC judges, Congress
Traitors in Judiciary & Police
Crimes by Khaki
FIRST Answer Judges Police
JAIL Dipak Mishra
JAIL Tyrrant Judges
Ugly face of Judiciary
5 Star Jails & Hell
Judges Connive with VIP Prisoners
Jai Hind. Vande Mataram.
Nagaraja Mysuru Raghupathi.
International Council of Jurists (ICJ) has sought an in-house probe against Justice Mishra for alleged irregularities.
Even as Chief Justice of India (CJI) JS Khehar has recommended the name of senior-most Supreme Court judge Justice Dipak Mishra as his successor, the International Council of Jurists (ICJ) has sought an in-house probe against Justice Mishra for alleged irregularities.
Since the CJI has already recommended Justice Mishra’s name as his successor despite the charges against him, ICJ plans to approach the President and the Prime Minister seeking their intervention.
Lok Sabha MP Harinder Singh Khalsa has also written a letter to the Prime Minister’s Office expressing his concern over the CJI’s recommendation of Justice Misra.
“I feel very strongly about what is going on at the moment. Allegations of impropriety and the incident with Justice CS Karnan prompted me to write to the Prime Minister,” Khalsa told DNA.
In his letter, Khalsa referred to late Arunachal Chief Minister Kalikho Pul’s suicide letter which accused several judges of the higher judiciary of corruption. Khalsa wrote: “The people of this country who certainly expect the next CJI to be not merely a Caeser’s wife above suspicion but a judicial statesman, a tall figure whose integrity and probity is beyond doubt.”
As first reported by DNA, an in-house probe headed by Punjab and Haryana High Court Chief Justice SJ Vazifdar and two other Hgh Court judges against two Orissa High Court judges was abruptly stopped when the name of a sitting Supreme Court Justice cropped up. The committee wrote to CJI Khehar and stated that it could not conduct any enquiry against a sitting Supreme Court judge.
The ICJ wrote a letter to CJI Khehar on July 24 and sought an internal probe against Justice Misra since its own enquiries had “revealed that the Supreme Court judge in question is Justice Dipak Misra, who is the senior-most after the CJI.”
“We seek your indulgence to immediately appoint an in-house committee consisting of Judges of Supreme Court of India to look into the allegations against Mr Justice Dipak Misra, Judge, Supreme Court of India, to ensure transparency in the functioning and independence of Indian judiciary,” the letter sent by ICJ president Adish Aggarwala reads.
The ICJ letter also refers to a September 2016 complaint filed by one Jayanta Kumar Das, alleging that Justice Misra was involved in the illegal transfer of large tracts of government land in Bidanasi and other areas of Cuttack when he was a lawyer. According to ICJ Aggarwala, Justice Misra was allotted land in 1979 when he was an advocate there and there is a court order with adverse remarks in the matter pertaining to the land.
“Your Lordship, since institutional integrity is involved in the whole episode and that the allegations are against a sitting apex court judge, who may be considered for appointment as next Chief Justice of India, it is incumbent on you to clear the doubts in the minds of the public and lawyers about your successor,” the letter says.
It also points out that when allegations of impropriety were made against Justice Soumitra Sen of the Calcutta High Court, “allegations, which were much less serious than those against Mr. Justice Dipak Mishra, the then CJI immediately constituted an in-house committee to look into the allegations against him”.
“Once the veracity of allegations against him (as an advocate) was established, the then CJI recommended his impeachment. Unless a similar procedure of enquiry is followed in case of Mr Justice Dipak Misra, the high name of Indian judiciary may be smirked,” it says.
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