I/III. [Dave said that he has nothing personal against CJI Dipak Misra but the allegations against him should be investigated. “These allegations are not even being investigated but are suppressed from the Nation. I have nothing personal against him but it worries me as a citizen and a lawyer that with such background, the Executive is bound to exploit the situation especially when the SC today has to deal with highly political matters of far reaching consequence.”]
https://barandbench.com/ndtv-truth-dushyant-dave-responds/ Bar & Bench September 28, 2017 What I said on NDTV is the truth, Dushyant Dave responds Senior Advocate Dushyant Dave has given an initial response to the news about Bar Council of India (BCI) issuing a show cause notice against him for his remarks against CJI Dipak Misra. Speaking to Bar & Bench, Dave stood by his remarks on air stating that what he said on NDTV is the truth. “I haven’t still got the notice and not read it . But what I said on NDTV last night is the truth.” He further said that it is a matter of grave concern that the conduct of judges go unchecked and allegations against CJI Misra were very serious. “It is a matter of concern for all in legal system and nation that such conduct of Judges go unchecked. In fact BCI should have opposed Justice Dipak Misra’s appointment to the highest judicial office to which only the best and non-controversial person can be appointed. The allegations against him were serious and those holding Constitutional offices should have been conscious and not appointed him.” Dave said that he has nothing personal against CJI Dipak Misra but the allegations against him should be investigated. “These allegations are not even being investigated but are suppressed from the Nation. I have nothing personal against him but it worries me as a citizen and a lawyer that with such background, the Executive is bound to exploit the situation especially when the SC today has to deal with highly political matters of far reaching consequence.” Dave also condemned the Bar Council of India calling it a body which has not held elections for years under “some pretext”. “BCI, by doing this gives an opportunity to bring on fore what should have been debated by Nation earlier. Advocates Act gives no such power to BCI, a body which has not held elections for years under some pretext and Mr. Mishra continues to occupy the position as Chairman unduly. I will happily contest this notice to prove that I was right and BCI is wrong.” To read the entire article, get a premium account II/III. [In his tenure so far, Justice Misra has been on benches that have decided a whole range of important issues, leaving us enough clues for what to expect during his term as CJI. Leaving aside the prosaic texts of most of his judgments because of his bombastic and often hilariously incorrect use of the English language, the substance of these judicial pronouncements do not portend much good for Indian citizens.] https://www.thequint.com/voices/opinion/cji-dipak-misra Justice Misra has been a judge for a little over 20 years now, elevated to the Orissa High Court and transferred shortly thereafter to the Madhya Pradesh High Court. (Photo: Liju Joseph/The Quint) OPINION | 4 min read Justice Dipak Misra’s CJI Appointment May Not Bring Good Tidings Alok Prasanna Kumar Updated: 31 August, 2017 2:50 PM IST Justice Dipak Misra was sworn in as the 45th Chief Justice of India on Monday. He undertook oath of office administered by President Ramnath Kovind, at the Rashtrapati Bhavan’s Darbar Hall. Justice Mista will have a term of approximately 14 months, about the average length for a CJI in the last couple of decades. He has been a judge for a little over 20 years now, elevated to the Orissa High Court and transferred shortly thereafter to the Madhya Pradesh High Court, before being appointed Chief Justice of the Patna High Court and later the Delhi High Court. He’s been a Supreme Court judge for a little less than six years. He follows in the footsteps of his uncle Ranganath Misra who was the CJI in the 1990s. In his tenure so far, Justice Misra has been on benches that have decided a whole range of important issues, leaving us enough clues for what to expect during his term as CJI. Leaving aside the prosaic texts of most of his judgments because of his bombastic and often hilariously incorrect use of the English language, the substance of these judicial pronouncements do not portend much good for Indian citizens. Here’s why: 1. Death Penalty Cases Justice Misra has presided over two important death penalty cases – the mercy petition of Yakub Memon and the appeals filed by the convicts in the 2012 Nirbhaya gang rape and murder case. In both cases there was much to be desired. As I’ve written before, Justice Misra’s judgment in Mukesh vs State (NCT of Delhi) was an incongruity, having neither the depth of reasoning nor careful thought required in handling a high profile death penalty case. It seems as though the judgement was informed more by popular opinion and less by legal reasoning as applied to the facts. Similarly, his judgment dismissing Yakub Memon’s challenge to the rejection of the mercy petitions was based purely on a technicality, without in any way giving due attention to the merits of the rejection of the mercy petition by the President. While a lot of show was made of allowing a past-midnight hearing to Memon’s mercy plea, the fact remains that the judgment was not exactly a shining example of judicial reasoning or analysis. In both cases, the conclusion seemed predetermined, with verbosity ruling over careful reasoning. The procedure of law so essential to our criminal justice system was of a judge going through the motions. 2. A One-Eyed View of Free Speech Justice Misra appears to have an opaque understanding of the concept of freedom of speech. Though Indian constitutional courts have not necessarily had the best record in so far as freedom of speech is concerned, even by the standards of previous judgments of the Supreme Court, Justice Mishra’s orders and judgments on the matter have been less than enlightening. Not only does he not recognise claims to freedom of speech, he has possibly invented two – may be three – new and hitherto unknown grounds to limit the scope of the right itself. In Devidas Ramchandra Tuljapurkar vs State of Maharashtra, he conjured a new basis for limiting freedom of speech – to avoid criticism of “historically respected personalities”. In Subramanian Swamy vs Union of India, he upheld the criminal defamation law on the basis that the right to reputation was superior to freedom of speech, potentially hampering even legislative efforts to repeal such a law. While hearing a case on pre-natal diagnostic testing, he came up with the “doctrine of auto-block”, out of thin air, with little reasoning and less thought on how it may impact future laws to restrict free speech. With dissent, free expression and any challenge to authority meeting severe reprisals, one shudders to think what will be left of our fundamental right to free speech when the Supreme Court deals with such cases under the stewardship of Justice Misra. 3. That National Anthem Order Justice Misra’s cursory attention to either following due procedure or for substantive rights came together in the case in which his order compelled us to “show respect” for the national anthem by demanding that it be played before the screening of every film in a movie theatre. Enough people have written about how misplaced this order is, substantively and procedurally, and how there is simply no basis in law, fact, good sense, or morality for it. It has of course found favour with the ruling dispensation which is bent on using jingoism and nationalism to divert attention from its governance shortcomings. As the new CJI, Justice Misra will take office with a problematic track record. That is not even taking into account the fact that we never got any real closure on the suicide note written by Kalikho Pul, which alludes to two senior Supreme Court judges in controversial circumstances. The seniority convention has meant that Justice Misra’s appointment as the CJI, barring an utterly unforeseen circumstance, was a foregone conclusion from the day he was appointed a Supreme Court judge. He was, in effect, appointed as the CJI by the collegium when they elevated him to the Supreme Court and all the subsequent steps have only been a formality in the process. Did they make the right choice? We’ll know soon enough. (Alok Prasanna Kumar is an advocate based in Bengaluru and can be reached @alokpi. Views expressed here are purely personal and do not reflect the views of any organisation.) First published: 16 August, 2017 6:02 PM IST III. [“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. https://thewire.in/163957/dipak-misra-chief-justice-of-india-land-allotment-case/ Should a Judge With a Serious Moral Flaw Become Chief Justice of India? BY SHANTI BHUSHAN ON 02/08/2017 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? The CJI wields enormous power in shaping the future of the judiciary. Credit: Twitter/Reuters 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.” Also read: Old Land Allotment Case Casts Shadow on Justice Dipak Misra’s Nomination as CJI 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. Also read: Seniority as the Norm to Appoint India’s Chief Justice is a Dubious Convention 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. -- Peace Is Doable -- You received this message because you are subscribed to the Google Groups "Green Youth Movement" group. 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