While A Journalist Is Jailed For Doing His Duty, An Old & Ailing Man Unable To Even Sip Water Dies Behind Bars! What happened To Article 21? Justice Rekha Sharma

Endorsing the views of other panelists, Justice Sharma had started by saying that she was personally not privy to the working of the Roster system in the Supreme Court. However, over the years, she had heard and observed enough to have a fair idea.

Recalling her advent into the legal field as an Advocate, she recounted that she had once witnessed an elderly lady lawyer appearing before a Court, when the Bench merely looked at her and said "dismissed". The lady lawyer had left the courtroom at the time red-faced, murmuring to herself. Later, Justice Sharma joined her as her junior. Today, she contrasted the incident with present times, saying, "what was earlier being said in whispered tones, in present times, is being talked about openly and it is something called Bench Fixing".

While seemingly hinting at the death of Father Stan Swamy as an undertrial prisoner in the Bhima Koregaon case after 270 days of incarceration, the Judge said, “a journalist spends time in jail for the crime of performing his duty, an old and ailing man unable to even sip his water is denied his basic medical aid and is made to suffer and die behind bars. What has happened to Article 21?”

Referring to Umar Khalid's withdrawal of his impending bail application from the Supreme Court, she further stated that coming out of the Court's corridors was considered a relief in the said case. To quote her, “What we find today is that a powerful person gets bail on an experimental basis, men like Umar Khalid are withering away unwept, unheard and unsung and so fed up that coming out of the corridors of the SC is itself considered a relief” .

Without mincing any words, Justice Sharma went on to ask, "Is our judiciary putting down who deserve to be pushed down and putting up who deserve to be pulled up, or is it just becoming a gilded tomb of failed talent?" before adding, "The question is not who is making them dance, the question is who is dancing and why?”

The former High Court Judge also took the occasion to express dismay at how, because of the Roster system, important constitutional matters were only being assigned to judges elevated from the Bar. She said that such cases were never assigned to the 'so-called Service judges.'

"None of the so-called Service Judges was ever assigned important constitutional matters, habeas corpus petitions. All such cases went to judges elevated directly from the Bar as if the judges from Bar were paragon of knowledge", the Judge commented.

State Of Affairs In Supreme Court & Electoral Bonds Judgment

Talking about the state of affairs in the Supreme Court, she highlighted that it took the Court more than 5 years to decide the Electoral Bonds petition, which pertained to 'the very existence and fairness of the election process.' Justice Sharma voiced discontent over the top court not realizing the urgency of the matter, inasmuch as one general election and many state legislature elections had been held by the time the matter came to be decided.

“One may ask why no urgency was felt or realized by one Chief Justice after the other in the electoral bonds case, another similar matters involving the rights of the citizen. In the interregnum much water has already flown under the bridge. One general election and many state legislature elections have already taken place meanwhile.”

She also stated that people's reaction of thanking and hailing the Supreme Court after it passed the Electoral Bonds judgment and performed its constitutional duty shows how much the top Court has lost its credibility regarding the dispensation of justice.

Taking the chain of thought ahead, Justice Sharma opined how the Supreme Court is no longer taken as the final authority on important pronouncements.

"It is already being talked that the government may move the Supreme Court for review or the State Bank of India and the Election Commission may ask for further time to carry out its directions...or the government may even bring an ordinance to nullify the effect of the judgment", said the Judge reminding that the government recently brought a law to nullify a Supreme Court ruling and removed the CJI from panel charged with selection of Election Commissioners.

Is Article 32 To Be Treated As A Dead Letter?

Notably, she also spoke about the recent hearing that took place in the case of former Jharkhand Chief Minister Hemant Soren. Soren had challenged his arrest by the Directorate of Enforcement (ED) in connection with an alleged land scam case. A special bench comprising Justices Sanjiv Khanna, MM Sundresh, and Bela M Trivedi was constituted to hear the plea. However, the Bench declined Soren's request for relief under Article 32 of the Constitution.

Justice Sharma categorically stated that the Supreme Court declined to hear the Article 32 petition when, in the past, it has often entertained such petitions in urgent and grave matters.

“More recently, the SC declined to hear an Article 32 petition involving the arrest of a CM of the State (Jharkhand) who alleged that he was arrested on no evidence and with the sole aim of de-establishing his duly elected government...The observation was made notwithstanding that many a times in the in the past, the Supreme Court has entertained Article 32 petitions depending on the urgency and the gravity of the matter.”

Emphasizing how Article 32 has been described as the "heart and soul of the Constitution" by Dr BR Ambedkar, she asked, “Is Article 32 to be treated as a dead letter?”

Roster, Not Judge Assigns The Cases

At the end of her address, Justice Sharma underscored three "advantages" of the roster system which have "fortunately or unfortunately" come to light: first, that the Master of the Roster can constitute a bench of his own choice and himself preside over it even in a very personal matter; second, that by intelligently making use of that power, he can assure himself even after his retirement, a cozy job like a seat in Rajya Sabha; and third, that by intelligently using his power, he can benefit his very "worthy and dearest" colleagues too.

The event can be watched live here.

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