Monumental Misjudgement!

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The recent handling of cases by Supreme Court has raised serious questions over the judiciary’s probity, especially that of the apex court’s judges, and top lawyers have likened some of the proceedings to a ‘fish market’

Virag Gupta

Virag Gupta

Virag Gupta practices at the Supreme Court of India. He is a former IRS officer and has worked with Ernst & Young

Election of Justice Bhandari has brought respite and cheer to the Indian fraternity across the world and is being hailed as a diplomatic coup. At the same time, the news of former Bombay Chief Justice Mohit Shah having offered Rs. 100 crore to trial court judge in charge of the Sohrabuddin matter has resurfaced many questions. Supreme Court’s NEET judgement was leaked beforehand, and scams like Vyapam and Deemed Universities highlight the true rot in the education sector. Despite being arrested in 2010, former MCI Chairman Ketan Desai first became President of the World Medical Association in 2016 and is now part of the Medical Council of Gujarat. Known to favour its own, Apex Court had first introduced former CJI Lodha for spearheading BCCI reforms, and then made him head of the MCI Oversight Committee. In its judgement on NJAC, Supreme Court had sought reforms in judicial appointments, but two years, and four Chief Justices down the line, the MOP is yet to be finalized. The most important recent jolt to judicial propriety took place in November in the medical college matter before the Supreme Court but the silence thereafter could be calm before the storm.

THE GENESIS

The PIL by CJAR in medical college case was filed on 31.10.2017 and remained under objections until 06.11.2017. It was only on 08.11.2017 that the matter was mentioned before Justice Chelameswar’s Bench and he ordered the petition’s to be listed before an appropriate Bench. The appropriate Bench was of Justice Sikri as per Cause List, and the matter was listed for 10.11.2017. Upon such listing, Kamini Jaiswal filed her petition on 09.11.2017 at 10.26 am and the matter was mentioned before J Chelameswar, who decided to hear it at 12:45 pm. In his three-page Order, Justice Chelameswar detailed a photocopy of proceedings purportedly issued by the Chief Justice. The leaked photocopy reveals that it is a note from the Registry submitted to the Chief Justice on 06.11.2017.

Thereafter, on 10.11.2017 Justice Sikri’s Bench, relying upon Order dated 09.11.2017 passed by Justice Chelameswar in Kamini Jaiswal’s matter, sent the CJAR matter to CJI for appropriate action. CJI too as per Justice Chelameswar’s Order formed the Constitution Bench, but its composition was different. The Cause List had initially announced a 7 judge Bench, out of which J. Sikri and J. Ashok Bhushan, who had transferred the matter to CJI, did not sit, reducing the number to 5. The Constitution Bench based upon an earlier judgment went on to re-hold that CJI is master of the roster, and the proceedings that day were described as a fish market by Prashant Bhushan, reducing Indian Judiciary to a new low. The Constitution Bench passed an Order stating that any other contrary order passed by any Bench is set aside and then in CJAR’s petition ordered that the CJAR matter be placed before Chief Justice, for appropriate listing after two weeks.

On the other hand, Kamini Jaiswal’s matter, which was not before the Constitution Bench, came up before Justices Agrawal, Misra and Khanwilkar upon the administrative orders of the Chief Justice. Anyway, this three judge bench in its verdict dismissed Kamini Jaiswal’s petition holding that the filing of same is contemptuous, but without expressing an opinion on merits of the case. Remarkably, the judgment does not detail the author of the judgment, and the judgment also holds that the principle of no one can judge his own cause does not apply to the Chief Justice.

UNANSWERED QUESTIONS

If the CJAR matter was very urgent, surely it could have been mentioned on the date of filing itself and the objections be subsequently removed. Why did it take a week to remove objections?

Why a pre-dated noted was delivered while the proceedings were on before Justice Chelameswar’s Bench? The note does not detail any consultation with other judges before it was issued. Moreover, was the note delivered to all the Benches or just Justice Chelameswar’s Bench? Only a forensic audit of the computer and printer can detail the truth, but the question is, who will investigate into this?

Does the Chief Justice not trust the other senior judges, as he formed a Constitution Bench but without senior judges being a part of it?

Why was the Constitution Bench formed when the referral to CJI by Justice Sikri Bench did not contain any reasons and did not frame any question of law to be decided?

What was the purpose of making the Constitution Bench when the law that CJI is the master of the roster was already made clear through State of Rajasthan Vs. Prakash Chand?

There is no provision for intra-court appeal in Supreme Court. Justice Chelameswar’s Order could only have been set aside through due process by Review and then Curative Petition. Why did the Constitution Bench then circumvent the law to bypass Justice Chelameswar’s order?

Why was the composition of three judge bench formed to hear Kamini Jaiswal’s petition such that all three judges were already part of the Constitution Bench and Justice Khanwilkar was also part of the Bench that gave theorder in the case, which Kamini Jaiswal and CJAR say is thesubject matter of FIR?

Does the principle that no person can judge his own cause not apply to CJI as has been held by Constitution Bench and apply to other judges as well, as is evident from the composition of the three judge bench?

JUDICIARY VS. LAW

It is clear that a FIR cannot be directly registered against a judge of the Supreme Court and the procedure mandates consultation with Chief Justice. At the proceedings, the Chief Justice had himself asked Prashant Bhushan where his name is mentioned in the FIR. In such a scenario, it is only just that the last accused in the CBI FIR are unnamed persons, who could be anyone, including public servants. Investigation by CBI alone does indeed raise the point of the government putting pressure in order to arm-twist the judiciary, but in case a crime is committed by a Supreme Court judge, who will investigate?

The Sultanate of Supreme Court acts as per whims. Mentioning was earlier done by everyone including Senior Advocates. One fine day, when one Advocate highlighted that some seniors were making repeated mentioning, while many Advocates did not get a chance. Chief Justice Misra decided that only Advocates on Record will be allowed to mention. However, no circular to such effect has been issued till date. Supreme Court Rules, 2013, do not define mentioning and give no format for the same. Order IV Rule 2 of the Supreme Court Rules, 2013 do not restrict Senior Advocates to mention matters in Court. How can then Chief Justice Misra, who while being in Court No. 2 himself allowed several mentioning, including by Senior Advocates, make a restriction that does not have any force of law? Moreover, as mentioning of unallocated matters can be made before the Chief Justice only, what about days when the Chief Justice is unavailable?

If Chief Justice is indeed the master of the roster, what happens to the matters that are taken up suo moto by judges? In suo moto cases, it is the judge who takes up the matter, and hence the particular judge decides the roster as well as the listing. Surely, the same lies in contradiction with the Chief Justice being master of the roster and so, will all suo moto cases taken up till date be rendered void? It could well be that the dictum is ultra vires of Rule 12 1 (a) under the Chapter Public Interest Litigation of Supreme Court Rules 2013. If at all the power of suo moto cognizance is to be taken away from the judges of the Supreme Court, the same would require amendment in Supreme Court Rules, 2013, which then have to receive the assent of the President.

CORRUPTION HOTBED

Supreme Court recently held that corruption, even in small amount would be punishable. Outlook magazine has covered as to how persons are ready to pay Rs one crore to be appointed as Additional District Judges in Haryana. A High Court judge, in comparison, is a demi-god and enjoys a number of privileges. Cash for Justice in Bihar reveals the sad state of affairs but the law minister could only express shock. The medical college scam is a prospective case of high scale corruption, but without any answers to who will undertake the investigation. The materials collected are before the Supreme Court, with named accused out on bail. There is also no clarity whether the CBI is continuing in its pursuit of finding out about unnamed persons in the FIR. SC itself has held CBI to be a caged parrot and Shanti Bhushan had once claimed that 8 Chief Justices have been corrupt. The dignity of the judiciary can only be restored if a fair investigation happens and the outcome is shared with all.

Sudhir Giri, who is at the centre of the present FIR has had at ryst with medical education and courts, which otherwise is a domain of media owners and politicians. Delhi HC in 2015 denied permission to Sudhir Giri’s Venkateshwara Institute of Medical Sciences, Gajraula for starting a medical college from 2015-16. Justice Endlaw in his judgment had held that “there can be no compliance of, to say the least, malpractices, if not fraud, deceit and misrepresentation, in seeking approval”. It was only after the Supreme Court mandated an oversight committee for approval of medical colleges that Sudhir Giri’s college was allowed to function. However, another inspection by MCI found several faults within the college but when MCI went to see if the faults have been removed, they were not allowed to inspect the premises. Despite this, the Bench headed by Chief Justice Misra asked MCI to send the inspection team once again to apprise the Institution with regard to the deficiencies and give a date for removal of the same so that the Institution would be in a position to remove the same, and ordered for the continuation of the current batch. This partial relief to Sudhir Giri only becomes interesting in light of the fact that another bench consisting of Chief Justice and justices AM Khanwilkar, and DY Chandrachud, had in another matter related to establishment of Medical College has ordered that even the admitted students would be “debarred from continuing in the course” and reprimanded Allahabad HC for providing relief to the college despite its explicit order to not do so.

INDIVIDUAL HEROISM

The rising trend of individual heroism cannot be discounted with. Generations have hailed individual judges as being great dissenters or eminent jurists. There are judges who have been called fathers of PILs, and also Green Judge. While the number of individual heroes may have grown, the eminence of the institution has come down. The Haryana judiciary paper leak matter involving upper echelons of the Punjab and Haryana High Court is pending before the Supreme Court. In the system of checks and balances, Judiciary has an important role. Judicial corruption could be the biggest threat to a fair democracy. It is rather sad that a number of lawyers did not believe in following due process of seeking review and subsequent remedies.Supreme Court Bar Association sought itself to be impleaded as a party in CJAR petition before Justice Sikri. Such request was just made orally, sans any application Finally, even as Justice Sikri’s Bench passed an Order, why is the same not available independently on the Supreme Court website, but is only a part of the Order of the Constitution Bench?

Research showed that majority of the judges have come from 200 influential families within the country. Of these judges, five form the Collegium and out of five, the Chief Justice has been held to be master of the roster.

Will the master now also claim responsibility for the mess that is plaguing the entire judiciary?

EQUALITY AND INJUSTICE

Equality took a beating when Supreme Court refused to initiate contempt proceedings, despite holding the matter as contemptuous. Earlier, lawyers have been debarred for making allegations of corruption. What was Justice Karnan’s fault that back then he got to jail and people making similar allegations today are free? Will the Supreme Court which acted for contempt against an HC judge initiate the same against one of its own who may well have given the traction?

It is true that judges function under a lot of scrutiny and factors that are unknown to the public. The Kalikho Pul matter came to a sad end despite having explosive revelations. Chief Justice of Bangladesh had to resign after having a rift with the Sheikh Hasina government. Pakistan SC ousted PM Nawaz Sharif after the Panama Papers. Is the Judiciary in Indian Sub-Continent going through a simultaneous turmoil?

Despite being given a clean chit by CBI, Ryan School driver stayed in jail for a long time and even after CBI having the evidence against Justice Quddusi, he was given bail. Reportedly, the evidence in the case is more than 80 phone call recordings that detail reference to a sitting Supreme Court judge. Prashant Bhushan in a tweet has said that the evidence is in 6 trunks and the call record show “Biswanath Agarwal from Odisha saying he will get the work done from ‘Captain’ who has all India jurisdiction”. The dark days of Indian democracy have ensured that there is not much public outcry despite the happenings. Truth is, people have lost faith in the system that has become corrupt and seems irreparable. It is really unfortunate that administrative powers of the Supreme Court have been used to usurp its judicial powers for personal gains. The Radia tapes are nowhere available nor is any action against the judicial or political lobby.

THE WAY FORWARD

Video recording of court proceedings would have acted as a disinfectant in today’s times. Not only would the public have had some faith remaining but no judge would have been expected to plead innocence behind closed doors.

A number of institutional reforms are required to decentralise the administrative control as well. The Chief Justice can be ably assisted by fellow judges in numerous administrative tasks that are spread across the system.

Such a step has already been taken for the appointment of an arbitrator by the Court under the Arbitration Act, 1996. Trust amongst judges is a necessity for the smooth functioning of the judicial system.. Surely, the institution checking others for propriety will have to set higher standards.

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