The Lawyer’s Briefs: How not to form a Committee

Even as the nation’s top law officer waxed eloquent about the limited scope of judicial review and bought into the Zee News narrative, the Supreme Court affirmed that it would do its job by doing the Central government’s job for it.

What should have been done by the government before the farmers had reason to protest has now been facilitated by the Supreme Court. While passing an order staying the farm laws, Chief Justice of India SA Bobde hoped that opening a channel of communication with the stakeholders over legislation that affects their very livelihood would assuage their fears.

The decision to appoint a four member Committee to facilitate these talks would have been welcomed, had it not been for the composition of said Committee. Reports suggest that all four members of the Committee have publicly supported the farm laws and have even dismissed the protests as being misguided.

Given this fact, the purpose of appointing such a Committee would be defeated, as has been seen in the recent past. For this is not the first time Committees appointed by the Supreme Court have come under scrutiny.

Here is a list of legal maxims an authority should NOT follow while setting up such committees.

A Committee shall be a judge in its own cause

In a progressive judgment, at least in terms of the ideals it sought to espouse, the Supreme Court held that the right to freedom of expression through the internet is part of Article 19(1)(a) of the Constitution. This ruling was passed by the Supreme Court in January 2020, in a batch of petitions challenging the validity of the government's move to impose restrictions on media, communications, transport, and to impose curfew in parts of Jammu & Kashmir immediately after the abrogation of Article 370.

However, the Court saw it fit to allow a Review Committee comprising Central government officials to review the decision to impose internet restrictions in the Valley. It stated in its order,

“We therefore direct that the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6). The Review Committee must therefore not only look into the question of whether the restrictions are still in compliance with the requirements of Section 5(2) of the Telegraph Act, but must also look into the question of whether the orders are still proportionate, keeping in mind the constitutional consequences of the same.”

Though the constitution of the Review Committee was in line with the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017, the Court ought to have realised that the Rules gave the Central government the power to review a decision it had itself taken.

What ensued, perhaps unsurprisingly, was a reluctance on the part of the government to change the status quo. More than a year since the Court's judgment, internet restrictions are still in place in parts of Jammu & Kashmir.

Let the Committee not hear the other side as well

In April 2019, then Chief Justice of India Ranjan Gogoi formed a Bench on a Saturday to address allegations of sexual harassment raised against him by a Supreme Court staffer. The matter was then converted into a suo motu case.

A three-judge in-house panel was then constituted to probe the allegations. This panel comprised Gogoi J’s brother and sister judges, people in close proximity to him. In fact, one judge on the panel - Justice NV Ramana - was stated to be so close to Gogoi J that the complainant insisted on his recusal.

To make matters worse, the complainant later refused to take part in proceedings before this committee, citing reasons such as the panel’s refusal to allow video recording of the proceedings, and not being allowed a lawyer to represent her.

Lawyers, activists, and even a sitting apex court judge went up in arms after the inquiry panel probing the allegations “completely delegitimized itself” by opting to hear the matter ex parte.

Ultimately, the panel exonerated Justice Gogoi of all charges.

Trust the non-expert

Who should be part of a committee to mediate between two parties who have been at loggerheads for decades, over an issue as old as time immemorial?

Experience mediator - check. Retired Supreme Court judge who has heard and decided hundreds of disputes - check. Spiritualist who has no experience in law or dispute resolution - What?

The Supreme Court’s decision to appoint Sri Sri Ravishankar on the mediation panel for the Ayodhya case along with Senior Advocate Sriram Panchu and Justice FMI Kalifulla certainly raised an eyebrow or two.

The mediation ultimately failed, and the Court subsequently held marathon hearings to decide the case itself.

Conflict of interest no bar

Recently, the Supreme Court’s decision to accept the recommendation of the Uttar Pradesh government as regards members of the Commission of Inquiry to probe the Vikas Dubey encounter case, came under the scanner.

Lawyer Ghanshyam Upadhyay called into question the appointment of former Supreme Court judge, Justice BS Chauhan as head of this panel. In his plea, Upadhyay relied on a newspaper article which showed that Justice Chauhan’s brother was a member of the BJP, the ruling party in the State. He had also raised grievance against the appointment of former DGP KL Gupta on the panel. This, after Gupta had made certain comments in favour of the Uttar Pradesh Police in a media interview.

However, the Bench headed by CJI Bobde refused to entertain the plea for lack of material leading to apprehension of bias. The order states,

“...the allegation that the brother of the chairman of the Commission is a legislator belonging to or supporting the party in power and that the member of the Commission is related to the IG of Police (Kanpur Range) are not sufficient to come to the conclusion that it would lead to bias or conflict of interest since there is no indication whatsoever as to the nature of influence such of those relatives would be able to exert and as to whether they are in a dominant position.”

The issue did not end there. This week, the High Court Bar Association of Allahabad passed a resolution opposing the visit of Justice Chauhan to the Allahabad High Court in connection with the Vikas Dubey encounter case.

The Association claimed that such a visit to probe the modus operandi of the judges of the Allahabad High Court was "unconstitutional and illegal".