The last institution that we trust, the Supreme Court, is imploding… and...

The last institution that we trust, the Supreme Court, is imploding… and the blame goes to insiders

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Individuals make an institution. And, individuals unmake an institution. When the interest of an individual is given precedence over that of the institution, irrespective of whether or not the interest of the individual could be protected, it is the institution that suffers loss of credibility which is generally irrecoverable. We have seen this happening in India with most institutions. Individuals manning institutions have led to their downfall in order to protect their personal interests. Supreme Court of India is no exception, it appears. One of the last institutions, in which people had the ultimate faith, is crumbling. And, the persons responsible are again the insiders, the individuals who run this institution. Its credibility is imploding. Outsiders, the common men and women, who hope to depend on this institution to get justice, are helplessly looking at the whole episode in bewilderment.

It all started with the CBI filing an FIR in September and subsequently arresting a former High Court judge, Justice IM Quddusi, who was reported to be involved in a racket involving the opening of medical colleges in Uttar Pradesh. A medical college set up by the Prasad Education Trust in Lucknow was debarred by the Central Government from admitting students for the academic years 2017-18 and 2018-19 on the basis of adverse reports with respect to compliance with the requirements for setting up a Medical College by various assessments conducted by the Medical Council of India. A few petitions were filed in quick succession before the Supreme Court and Allahabad High Court. It appears from the FIR lodged by the CBI that an attempt was being made to unduly influence the outcome of the petition which was pending before the Supreme Court. It was alleged that the former judge of the High Court was apparently negotiating through a middle man to get a favourable order in the petition pending in Supreme Court. The said petition was being heard by a bench headed by the present Chief Justice of India Dipak Misra.

Following this, two writ petitions were filed before the Supreme Court praying for setting up a special investigation team headed by a retired Chief Justice of India to investigate in the above case in order to ensure that the investigation was not left to an agency (i.e., CBI) controlled by the Government and in order to protect the independence and integrity of the judiciary and also to restore the public confidence in the judiciary. It was mentioned in the writ petitions that if the CBI, which is controlled by the government, is allowed to undertake the investigation in the present matter, the Government can use this to compromise the independence of the judiciary.

Since the Chief Justice of India was busy hearing a Constitution bench matter, as per the convention prevalent in the Supreme Court (and, also because the petition was concerned with a matter that had been heard by a bench headed by the present CJI which gave rise to a probable conflict of interest), one of these petitions, which was filed by Advocate Kamini Jaiswal, was mentioned on 9 November 2017 by Senior Advocate Dushyant Dave before Justice Jasti Chelameswar, who was heading a 2-judge bench in Court No. 2, seeking listing of the matter. This Court directed listing of this matter on 13 November before a bench headed by first five judges of the Supreme Court (read order).

It is this order of the above 2-judge bench that was indirectly overruled by a 5-judge bench of the Court, headed by CJI Dipak Misra himself, which was hastily constituted on 10 November (by an order passed at 2:52:43 pm and the bench was to assemble in about 7 minutes at 3:00 pm). There was a high voltage drama that occurred during the proceedings of this 5-judge bench. Such type of proceedings have been unprecedented in the history of the Supreme Court. Full chronological details of the whole incident can be seen here and I do not want to repeat the same here. You can also read a press note issued by CJAR (Campaign for Judicial Accountability and Reforms), which had filed one writ petition in this matter, relating to the details of the hearing that took place before the said 5-judge bench on 10 November. Also, see the press note of CJAR on the writ petitions filed in connection with CBI FIR.

This 5-judge bench, headed by the CJI Dipak Misra, passed an order reaffirming that the Chief Justice of India is master of the roster and any order passed by any judge allocating a matter to any bench will not hold field. It also ordered that the first of the above two writ petitions, which was filed by CJAR, be placed before the CJI for listing before appropriate bench. In view of the above, the aforesaid order dated 9 November passed by the 2-judge bench headed by Justice Chelameswar, directing listing of the writ petition before a 5-judge bench of first five judges, was indirectly overruled.

In an unprecedented manner, thus, the 5-judge bench headed by CJI Dipak Misra overruled a 2-judge bench in respect of a matter in which the CJI is supposed to have had conflict of interest (read the order of this 5-judge bench). So, now, these two writ petitions, that relate to a matter in which there could possibly a conflict of interest of the CJI, would be placed before a bench which would be decided by the CJI himself.

That Chief Justice of India (CJI) is the master of the roster and is the only authority to allocate cases to judges in the Supreme Court is, without doubt, a well-established principle. But, this principle cannot be put at a higher pedestal than the basic principle of natural justice, namely, nemo judex in causa sua (or nemo debet esse judex propria causa), which implies that “no-one should be a judge in his own cause”. It is a basic principle of natural justice that no person can judge a case in which he has an interest. This principle is strictly applied to any appearance of a possible bias, even if there is actually none. This is a manifestation of the principle that “justice must not only be done, but must be seen to be done”. This principle has been reiterated by the Supreme Court itself, time and again.

Wherever there is a conflict between the legal principle of the CJI being the master of the roster and the principle of natural justice that no-one can be a judge in his own cause, it is the latter that should always prevail. If these two principles are to be harmoniously construed, then in case of a conflict between the two, the natural justice principle should prevail. Heavens are not going to fall if in an exceptional single case the roster is prepared by the next senior judge in the Supreme Court, since after all, in all other cases, the CJI will continue to be the master of the roster and will continue to allocate cases to judges. But, it would lead to complete injustice if the CJI becomes a judge in his own cause; and, even if justice is ultimately done in such situation, justice would not be seen to be done. The reputation of the institution will take a beating. Institutional credibility will be dented. People will lose faith in the impartiality of the institution of the judiciary.

And, unfortunately, in this particular case, not only did the CJI prepare roster in the case where he had a conflict of interest by allocating the case to a specially constituted 5-judge bench, but he also himself headed this bench despite the fact that he had a clear conflict of interest!

At this juncture, let me point out the decision of a Constitution bench of the Supreme Court in the case of K. Veeraswami v. Union of India, (1991) 3 SCC 655. In this case, it was directed by the majority [Shetty and Venkatachaliah, JJ., and Ray, J.] that no criminal case shall be registered under Section 154, Cr.P.C., against a Judge of the High Court, Chief Justice of High Court or Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter and that due regard must be given by the government to the opinion expressed by the Chief Justice. If the Chief Justice is of opinion that it is not a fit case for proceeding under the Act, the case shall not be registered. It was further held that if the Chief Justice of India himself is the person against whom the allegations of criminal misconduct are received the government shall consult any other Judge or Judges of the Supreme Court.

Thus, there is a precedent set by the Supreme Court itself that where the CJI himself is facing certain allegations, other judges may be consulted by the President before registering FIR, while for allegations in respect of all other judges of the Supreme Court (and also of the High Courts) it is the Chief Justice of India who is required to be consulted.

Likewise, in a similar manner, the rule should be that CJI is the master of the roster and allocates all cases to benches to be constituted by him. But, if the CJI has a conflict of interest in a specific case, then such case must be allocated to a bench to be selected by other judges, which should generally be done by the next senior judge in the Supreme Court. This is what is warranted by the natural justice principles and is in the interest of the judiciary itself, if it has to demonstrate that justice must not only be done but should also be seen to have been done.

In the present case, the petition in which the CJI had a potential conflict of interest was allocated to a bench by the next senior judge, i.e., Justice Chelameswar, who had directed the case to be listed before a bench of first five judges. He did not direct the matter to be listed before a 2-judge bench headed by himself.

Did the CJI believe that five senior judges of the Supreme Court will not do justice in the case in which his own role could perhaps have come to focus?

It is noteworthy that there have been at least two more cases in which allegations have been levelled, directly or indirectly, against the present CJI Dipak Misra, or at least his role has come under suspicion. One is the suicide note of former Arunachal Pradesh chief minister Kalikho Pul wherein it is alleged that brother of Justice Dipak Misra had demanded Rs. 37 crore from him (read the suicide note; read its translation in English). The other (also see here) is an old land allotment case in Orissa. In one matter, there is no enquiry and in the second matter, enquiry appears to have got stalled.

And, now, this third matter also appears to be going the same way.

This is not all. Sometime, in 2009 or so, Prashant Bhushan had alleged that at least half of the last 16 to 17 Chief Justices of India were corrupt. A contempt petition was initiated against him, and his father Shanti Bhushan (a former Union Law Minister) had also supported these allegations by filing an affidavit in the Supreme Court, but the said contempt petition [Contempt Petition (Criminal) No. 10 of 2009] is still not decided for last about 8 years. It perhaps shows the reluctance of the judiciary, since it may open a Pandora’s box. It is noteworthy that even yesterday, when this whole drama took place, the CJI told Prashan Bhushan that he was liable for contempt, upon which the latter asked the CJI to initiate contempt proceedings, but the CJI told him that he was not worthy of a contempt action (see here). It clearly shows reluctance on the part of the judiciary to initiate contempt in such serious matters when allegations are levelled against the judges of the Supreme Court itself, while for much smaller issues people have been punished for contempt.

Even after 2009, many of the Chief Justices have faced corruption allegations, including Justice K.G. Balakrishnan (here), Justice Altmas Kabir (see here and here and here), Justice Khehar (see, suicide note of Kalkho Pul, as noted above). There have been allegations against other judges of the Supreme Court also, for example, against Justice C.K. Prasad (see here and here).

One earnestly hopes that the allegations in all such matters would be false and motivated. But, this is not the way to put an end to such allegations. What is most surprising is that almost no effort has been made to make any enquiry or investigation into such allegations. On the other hand, efforts have been made to sweep these allegations under the carpet.

It is in this background that the present controversy is required to be seen. Like previous allegations against judges, this issue is also headed towards a dead-end.

The irony is that the CJI has done it in such a public manner that it is sure to bring down the credibility of the judiciary as a whole.

This whole unfortunate episode unequivocally shows how weak the judicial system is from inside. How one judge would not trust a brother judge! How the judiciary is completely incompetent to deal with allegations against its own members in a fair and impartial manner, notwithstanding the so-called “in-house” mechanisms!!

The sufferer is the institution of judiciary. The sufferer is the nation. The sufferer is the society. Let us then forget the concept of a free, impartial and independent judiciary. Let judiciary also meet the same unfortunate fate that other institutions in India have. Who bothers for rule of law? Personal interests are more important.

Does it make any sense to suggest that it is in the interest of the judiciary itself, and the CJI himself, that at least some basic enquiry is made in an impartial manner?

I don’t know. But, one thing is sure. The CJI did not cover himself with glory with what happened yesterday, i.e., on 10 November 2017. A black day in the history of the Supreme Court, indeed.

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