SC Reserves Order In Plea to Scrap Judicial Commission Set Up To Probe Vikas Dubey's Alleged Encounter

The plea, filed by Maharashtra lawyer Ghanshyam Upadhyay, cast aspersions on the independence of members of the judicial commission, which was set up on July 22 by the Top Court, in a petition filed by Upadhyay himself.

On the basis of an article which appeared on The Wire, Upadhyay alleged close connections of Justice (Retd) Chauhan with the ruling BJP Government. The petition also avers that another member of the Commission, Mr. KL Gupta, is related with the IG of Kanpur Zone, Mohit Agarwal, where the alleged encounter of Vikas Dubey took place.

As the matter came up for hearing, the Bench headed by CJI SA Bobde pulled up the petitioner for filing such a plea casting aspersions on members of a Court appointed Commission, including a Judge, especially on the basis of a media report.

"We will not allow you to level charges against a Judge on the basis of a newspaper report. What are you saying! He has been a respected Supreme Court Judge, and the Chief Justice of a High Court. There was never a problem with his relatives. Why do you have a problem now?

…Are any of his relatives connected with the incident or with the Inquiry? Why can't he be fair? There are many Judges whose fathers or brothers are MPs. Are you saying that all of them are biased judges?", remarked the CJI.

Upadhyay, however, pointed out that articles in various publications had raised questions about the independence of the inquiry and insisted on reading out the article from The Wire.

He highlighted that the article revealed that Justice (Retd.) Chauhan's younger brother, Virender Singh, is currently a BJP member of the legislative council in UP. He also cited the article to add that not only his brother, but his son also switched loyalties from Samajwadi Party to BJP last year. Pointing out these family connections, Upadhyay contested that "it will be not fair (to allow Justice Chauhan to be a part of the inquiry".

Solicitor General Tushar Mehta took exception to this argument and asserted that the petitioner was being derogatory.

"A former Judge of the Supreme Court is connected to the Government! This is what he is saying! Being public spirited is one thing and levelling such aspersions is another. This is derogatory. Highly derogatory!", said Mehta.

Upadhyay raised concerns regarding the UP administration and alleged bias on part of State functionaries in order to save face.

"Look at the timing, just look at the timing…

…UP is becoming a state of encounters. They are upsetting the entire legal system. There was an encounter of Rajiv Pandey just a few days ago", added the petitioner.

The Bench, which also comprised of Justices AS Bopanna and V Ramasubramanian, brushed these arguments aside as irrelevant and reserved the Order after asking Upadhyay to submit a list of suggestions with regard to people he considered appropriate to be appointed as members of the Commission.

"What you are saying is irrelevant! There will be 1000's of crimes in each state, what does that have to do with this commission?

Order Reserved. Please submit a list of your suggestions", concluded CJI Bobde.

In his plea, Upadhyay had alleged "fraud of high magnitude" practised upon the Court by all stakeholders responsible for appointing the members of the inquiry commission.

...two immediate/close relatives of Justice (Retd.) B.S.Chauhan viz. his brother and 'samadhi' being legislators with Bharatiya Janata Party (BJP) which runs the government in Uttar Pradesh", Upadhyay's plea stated.

In light of this, the plea contends that "aforesaid two members of Judicial Commissions are disqualified from being part of the commission on account of conflict of interest and bias or likelihood of bias on their part".

The plea goes on to state that the conduct of the State and its functionaries of concealing "vital material facts which go to the very root of the matter" need to be viewed seriously by the Top Court.

Thus, not only did he pray for scrapping of the inquiry commission, but also issuance of contempt proceedings against state functionaries for allegedly suppressing true facts about the members of the commission.