Bench changes in Ahmedabad’s COVID-19 and Delhi’s communal violence cases and the removal of rights activist Gautam Navlakha from the jurisdiction of the Delhi high court suggest a ‘new normal’ is emerging.

New Delhi: The sudden roster change in the Gujarat high court, assigning public interest litigation pleas on COVID-19 control measures and the plight of migrants to a new bench is being viewed with concern by lawyers and others. The matter, so far heard by a bench of Justices J.B. Pardiwala and Ilesh J. Vora, will now be heard by Chief Justice Vikram Nath and Justice Pardiwala. In other words, Justice Pardiwala, who was the presiding judge in the previous bench, will now be a junior in the bench presided by the chief justice.

The roster change comes close on the heels of strong observations made by the Pardiwala-Vora bench on May 22 while hearing a suo motu case on precautionary measures being taken in the wake of the COVID-19 pandemic.

Although the suo motu PIL was registered and heard by another bench presided by Chief Justice Vikram Nath and Justice Ashutosh J. Shastri on March 13, it was the Pardiwala-Vora bench which revived it, after taking due notice of reports in the media. The Pardiwala-Vora bench on May 11 took note of the reports in the media that non-COVID-19 patients were not getting timely medical attention, and that migrants in Ahmedabad remained hungry on the streets for want of food, even while some of them were desperate to return to their homes in other states, without proper arrangements to board buses or trains.

On May 11, the bench observed: “Everyday hundreds of migrant workers with small children are to be seen at different parts of the state, more particularly on the highways. Their condition is pathetic.  As on date, they are living in the most inhuman and horrendous conditions.”  The bench added that the weaker sections of the society are not afraid of COVID-19, but are scared that they would die due to starvation.

The Pardiwala-Vora bench made headlines because of its scathing observations on May 22 on the Ahmedabad Civil Hospital, calling it “as good as a dungeon” and “may be even worst than a dungeon” for causing most of the COVID-19 deaths in the city. The bench had posted the next hearing of the matter on May 29, and directed the state government to revert to it with some positive feedback.  “If we are not convinced with the report of the state government, then we shall be compelled to have a video conferencing with all the doctors at the civil hospital so as to ascertain from them as to what are the difficulties, problems etc.”, the bench had warned.

These observations so rattled the state government that it moved an application to recall them, on the ground that they would shake the confidence of common man in the hospital, and would demoralise the medical staff.

On May 25, the bench declined the state government’s plea for recalling its critical observations about the hospital. The bench also dismissed the objections of the state government against the court taking cognizance of an anonymous letter sent by a resident doctor at the hospital.  The bench asked the hospital to be prepared for a surprise visit by the judges themselves.

The sudden change in the composition of the bench hearing the case, therefore, has raised concerns about whether it was aimed at diluting the orders of the previous bench. Justice Pardiwala, being the junior judge on the new bench, may not have an effective say in the dictation of the order. The fear is that the seriousness of the previous bench may no longer be evident.

Other controversial instances of roster change
On February 26, the Centre notified the transfer of Justice S. Muralidhar from the Delhi high court to the Punjab and Haryana High Court in the midst of his passing crucial orders and making critical observations relating to police inaction in the Delhi riots. In one order, the bench presided by him had directed the Delhi Police to respond to a plea for help from 20 persons injured in the Delhi riots to be shifted to the government-run GTB hospital, where they could receive proper treatment. In another order, the bench pulled up the Delhi police for not following the Supreme Court-mandated guidelines on registering First Information Reports in cases of hate speeches made by BJP leaders Kapil Mishra, Anurag Thakur, Parvesh Varma and others.

Although the Justice Muralidhar-led bench heard the case because Chief Justice D.N.Patel – who was to hear the case that day –was on leave, Justice Muralidhar would have ordinarily continued to hear the case had the Centre not signed his abrupt transfer order on February 26.  The transfer order and the return of the chief justice from leave came as an excuse for preventing Justice Muralidhar from continuing to hear the case, to avoid possible embarrassment to the ruling party at the Centre. The new bench reversed course on the FIR matter, accepting the Modi government’s logic that the time was not right to file cases against the politicians.

Curiously, it was reported that Justice Muralidhar, who is the second senior-most judge in the Punjab and Haryana High Court, has been assigned tax matters in the revised roster. Prior to his joining the high court, tax matters were being heard by seventh division bench. The second division bench, prior to his joining, handled important cases pertaining to intelligence agencies, criminal appeals etc.  Lawyers practising in the Punjab and Haryana High Court had expressed dismay that Justice Muralidhar was marginalised in the revised roster to deprive him of the opportunity of hearing politically important cases.

In similar vein, the Centre ensured that Justice Akil Kureshi, whom the Supreme Court collegium had sought to appoint as chief justice of the Madhya Pradesh high court, was posted instead to Tripura – where the chances of him passing politically inconvenient orders would be less.

Centre also changes HC jurisdiction to avoid ‘inconvenient’ judges
In a strong order, the Delhi high court on May 27 asked the National Investigation Agency (NIA)  to explain why it showed such “unseemly haste” in removing civil liberties activist Gautam Navlakha from the “very jurisdiction of this court” when it was hearing his interim bail plea.

The NIA whisked away Navlakha, an accused in the Bhima Koregaon case, to Mumbai by train on Sunday, without informing his family or lawyer.  Justice Anup Bhambhani, who had heard initial arguments in his bail plea on medical grounds in view of the public health emergency due to COVID-19, expressed his dismay about the activist’s speedy transfer to Mumbai from Delhi’s Tihar jail. Though the NIA followed the required technical steps, Justice Bhambhani noted that Navlakha’s counsel had alleged the lower court which approved his transit remand to Mumbai had not been told about the high court being seized of the matter already.

Once again, controversy over ‘master of the roster’
As master of the roster, the chief justice of a high court (or the Supreme Court) has the authority to allocate cases to different benches/judges. Although this principle is generally adhered to in order to maintain judicial discipline and decorum, there is a view that the power of allocation has to be exercised in a manner that is fair, just and transparent. The apprehension is that keeping in view the predisposition of particular judges, the chief justice may assign cases to those judges to achieve a predetermined outcome.

In 2018, senior advocate Shanti Bhushan sought the Supreme Court’s intervention to devise a more rational and transparent system of listing and re-allocation of matters to avoid any such possibility.  Bhushan argued that the expression ‘chief justice’, when he exercises his responsibilities as master of the roster, should be interpreted to mean the ‘collegium’ of five senior-most judges of the Supreme Court. The Supreme Court, however, dismissed his petition citing binding precedents to the contrary.  As these precedents pertain to the CJs of the high courts as master of the roster, it is unlikely that the Gujarat roster change may lead to any such demand from any quarter.

Courtesy The Wire