Bombay high court (HC) chief justice (CJ) Mohit Shah, Gujarat HC CJ Bhaskar Bhattacharya, and Uttarakhand HC CJ Barin Ghosh will retire without elevation to the Supreme Court (SC) after the SC collegium unanimously rejected their nominations as potentially proving “counter-productive” to the administration of justice. [Hindustan Times]
Chief justice of India (CJI) Altamas Kabir wrote for the collegium:
The collegium has unanimously taken the view that they are not suitable to hold the office of Supreme Court judge and their elevation as such would prove to be counter-productive and not conducive to administration of justice.
The collegium has not recommended the names of these three chief justices for good reasons and after taking into consideration all relevant factors, including their merit, ability and seniority at all levels.
Former CJI VN Khare commented:
It is unprecedented if this has been done. My experience has been that reasons for elevation or otherwise are not communicated in writing.
Last week the Gujarat High Court Advocates Association (GHCAA) forwarded a resolution to the President of India protesting against the decision to supersede Bhattacharya in SC elevations, and the government’s law ministry said it would consider replacing the collegium system.
The collegium elevated Andhra Pradesh HC CJ Pinaki Ghose and Himachal Pradesh HC CJ Kurian Joseph to the apex court in February.
Comments
In the words of a retired Supreme Court judge:
"I was the sixth in seniority in the Supreme Court. But I regret that I was never consulted by the Chief Justice. The five senior most judges met in a highly secretive manner for deciding whom to recommend as a judge of the Supreme Court. This manner severely restricts the inputs which are required for making high quality recommendations. Justice Ms Ruma Pal, former Judge of the Supreme Court, said that deliberations of the collegium are “a complete mystery.” It should not be so in a democracy, where there should be transparency, otherwise allegations are bound to arise, however unfounded, that improper recommendations have been made for extraneous considerations."
My 2 cents - I concur!
“I am so honoured that he has invited me for the ceremony. This shows how much he respects and believes in our cause,” an elated Subramaniam says. “We need people like him who understand what it means to be marginalised, stigmatised and ostracised simply for the fact that we are who we are,” she adds.
No less delighted at Justice Kabir’s elevation are the 43 inmates of Women’s Probation Home in Namkum, Ranchi. They call him and his wife Minna Kabir “Papa” and “Mummy”. “They have been regular visitors to the home for the last seven years or so and it will be a very significant day for all of us. We will wait for him to visit us so that we can have a celebration,” says Amita Ekka, chief probation officer and superintendent of the probation home.
Over the years Justice Kabir, who will have a tenure of about 10 months as CJI, has endeared himself to the marginalised sections of society with his judgments.
But he always did have a caring nature, say members of his family. His youngest sister Shirin Kabir Mirza cannot forget the day when a young Kabir had tucked a slice of plum cake from school in his pocket to give it to her. “It remained in his pocket the whole day and by the time he took it out, it had turned to crumbs. He always thought about his two sisters,” she laughs.
Born into a family of aristocrats which hails from Faridpur, now in Bangladesh, one branch of the family decided to stay in India after Partition and settled in Calcutta. Kabir’s father Jahangir Kabir was a trade union leader and an active politician. He went on to become a minister in the first non-Congress government in West Bengal in 1967 with Ajoy Mukherjee as the chief minister. Kabir’s uncle Humayun Kabir, made a name for himself in Delhi and served as a Union minister in several governments.
Young Kabir, who was good in studies, was untouched by the politics of his father. Impressed by his skill at speaking extempore, a teacher at Calcutta Boys’ High School advised him to pursue a career in law. “He was in Class VIII then and the teacher was impressed by his ability to present an argument logically and with clarity. From then on, he knew what he wanted to do in life,” Mirza says.
After graduating with history from Presidency College, Calcutta, he went on to get degrees in history and law from Calcutta University.
Enrolled at the Bar in 1973, Kabir practised in both district courts and the Calcutta High Court. And within a few years, he made a name for himself as a lawyer adept at fighting both civil and criminal cases. “He didn’t have to depend on his father’s contacts or anything like that. He was a confident young man who knew his law and loved fighting all sorts of cases,” recalls a former colleague and Calcutta High Court judge.
It was during this time that he fell in love with Minna, a Catholic, who lived just below their house in Calcutta. “Both our families knew that they were in love and nobody was surprised when they wished to marry,” Mirza says. The couple had a church wedding, followed by a nikah.
After spending many years as a high court advocate, Justice Kabir was made a judge of the Calcutta High Court in 1990. “I have never heard a lawyer complain about Justice Kabir losing his cool. Junior lawyers always felt confident arguing their cases in his court as they knew that he would give them a patient hearing,” says the former judge.
Justice Kabir was 57 when he was made the acting chief justice of Calcutta High Court in 2005. However, within weeks he was transferred to the Jharkand High Court as its chief justice. It was here that Justice Kabir came into his own. According to Shekhar Sinha, former president of the Jharkhand High Court Advocates Association, Justice Kabir and his wife contributed enormously to improving the lives of people in detention homes. “As the chief justice of Jharkhand High Court, he was instrumental in setting up of juvenile courts and passed several orders on the welfare of remand home inmates,” says Sinha.
After he was appointed a judge of the Supreme Court on September 9, 2005, Justice Kabir continued to deliver key judgments. Whether it was a case of sending a husband to jail for taunting his wife on her dark complexion, or his ruling on the rights of transgenders, he has often been hailed as a champion of the rights of citizens against the might of the state.
One of the most important cases he presided over was that of Sandhya Manoj Wankhede of Amravati district in 2011. In this case the Supreme Court bench comprising Justices Kabir and Cyriac Joseph ruled that female relatives of a husband can also be booked under the Domestic Violence Act.
“This was a historic judgment. Several courts were interpreting the law in different ways. It was important that the Supreme Court set a clear precedent and that’s what happened,” says Garvesh Kabra, the Supreme Court advocate who fought the case on behalf of Wankhede.
Often the last judge to leave the Supreme Court, Justice Kabir is popular with junior lawyers, says Kabra. “He is not somebody who is overawed by the reputation of a lawyer. He will listen patiently to both the sides and decide a case on the merits of the arguments. Juniors often feel that they can argue their cases better in his court,” he says.
Even though his career has been fairly illustrious, Justice Kabir has also been in a few controversies. There was once a dispute over his date of birth, which was raised by a non-resident Indian. It was subsequently dismissed by the Delhi High Court. Another controversy erupted when his younger sister, Shukla Kabir Sinha, became a judge of the Calcutta High Court. But none of the charges stuck.
As CJI, Justice Kabir will have his work cut out. One of the most important cases that he will decide on in the coming months is the contempt case against prominent advocate and (the now disbanded) Team Anna member Prashant Bhushan after he alleged that half out of the last 16 CJIs had been corrupt. The other is a case relating to the Italian government in which the latter claimed sovereign immunity for its marines who allegedly killed two Indian fishermen off the Kerala coast in February, 2012. This is the first time that a foreign government has filed a case in the Supreme Court of India on behalf of its citizens in a criminal case. Experts say that the ruling in this case could set a historic precedent, with international ramifications.
And few would disagree that Justice Kabir would be more than equal to the task.