November 10, 2017, shall go down as a sad day for modern Indian judiciary. What happened at 3 p.m. in Court No. 1 (CJI’s courtroom) shall always remain a stain in the annals of the Supreme Court of India. It will be hard to erase the institutional damage it has caused to the Indian judicial system in general and the apex court in particular.
It was the day that witnessed one constitutional bench hurriedly constituted in Court No. 1 junking the judgment of Court No. 2 passed the day before, on November 9, 2017. Look at the assiduity and eagerness coupled with anxiety to constitute a 7-judge constitutional bench. Within 10 minutes the bench was changed to a 5-judge bench and the hearing began within about 10 minutes thereafter. In a strictly legal sense, perhaps Justice Chelameswar committed a minor procedural glitch in constituting the 5-judge member consisting of 5 senior most judges of the Supreme Court when the allocative power devolves on the CJI. Maybe he would have been better served to send a note appended to the bench’s order for CJI’s approval to constitute the bench with a request that the CJI recuse as requested by the petitioner, and also keeping in mind the need to uphold the institution’s perceptional integrity and rectitude among citizens. But apart from this, Justice Chelameswar’s order is unexceptional in that the 5 senior-most judges of the Supreme Court formed the bench.
Alok Prasanna Kumar in an incisive piece “CJI’s action on bribery charge is SC’s biggest-ever crisis, and it comes from within” published in The Print too has commented on the same lines:
“CJI has the power to decide who will hear a case. But he is still expected to exercise it fairly, especially when there is an obvious conflict of interest.”
“The Chief Justice of India, for the first time, has violated the most basic norm of any decision-making authority – that no one shall be a judge in his or her own case.”
“It’s a monumental farce. The brazenness with which the CJI has ridden roughshod over not only all norms of judicial propriety and judicial conduct, but also his own colleague, and in the process, has damaged the Supreme Court as an institution.”
An advocate of the Orissa High Court has a different take, though. “What the CJI did was the right thing. But the SC must inquire into Quddusi activities in Orissa also and the businessmen and lawyers who were with him. It will open up a Pandora box of ‘fixing’ in the judiciary. People’s faith in the judiciary must be restored.”
To me, as a former government servant, the issue is more of institutional propriety than any else. If recusal is the norm for any institution of a constitutional democracy to avoid any real or perceived conflict of interest and to loudly convey the sense of fairness, I guess for the judiciary – on whom undying, blind trust and faith is reposed by its citizens (recall how dueling people snap at each other with a sense of finality: “I’ll see you in the Court!”) who look up to it for its unimpeachable sense of fairness, impartiality and transparency – it is a sine qua non and the credo of its relevance. Like Caesar’s wife, the perceived sense of judiciary’s fairness should be far above, even beyond, any question – for the august institution to inspire the respect, esteem, and reverence it deserves. Judges, given the important role they play today in a nation’s life doubtless are expected to follow the punctilio of a higher code.
But there are issues that are more disturbing and distressing beyond the ones brought out above. Let me list them here:
i. Is it proper for the bench to involve lawyers and listen to them at great length who weren’t party to the case while giving a short shrift to the arguing counsel of the petitioner? Ours isn’t a banana republic and our courts aren’t kangaroo courts! Rule of Law still holds sway. Playing to eager beaver onlookers, prompting and seeking their responses are extraneous to the case.
ii. Although I am personally abhorrent to the very concept of contempt of court unless it interferes with the administration of justice, for sake of equal and equitable application of the rule (as it happened subsequently), as reported in the media, would the adverse remarks made openly in court no. 1 (CJI’s bench) on the judgment of Court No. 2 (Justice Chelameswar’s bench of November 9) by the by-standing lawyers not party to this case, not tantamount to contempt of court? How was then this allowed by the CJI bench in Court no. 1? How, then, was an open contempt of a Supreme Court bench allowed to be committed in Court No. 1 of the highest court of the land? How would that have to be dealt with now? By Court No. 2 (Justice Chelameswar’s bench)? This too would need addressing.
iii. What’s the meaning of Mr. Prashant Bhushan “not being worthy of contempt” as the CJI is alleged to have remarked, as per media reports? If Mr. Bhushan was so much beneath contempt, why then was the issue of contempt at all brought up suo motu by the CJI? Was it merely to humiliate him in full glare of all those present in the packed courtroom? It needs to be said that notwithstanding whatever the bench thinks of him, the public perception rightly is very different. Mr. Prashant Bhushan (along with Mr. Dushyant Dave) is a much revered name in the legal world and therefore a household name, with an unimpeachable reputation in the country and abroad for upholding and fighting for probity in public life. I still recall his respected father, Senior Lawyer Mr. Shanti Bhushan’s stirring words – that shall always ring down the corridors of modern judiciary – in an affidavit in 2010 while impleading himself in a case publicly stated that out of the last sixteen Chief Justices of India, eight of them were definitely corrupt – where he wrote that he “be added as a respondent to this contempt petition so that he is also suitably punished for this contempt. The applicant would consider it a great honour to spend time in jail for making an effort to get for the people of India an honest and clean judiciary.” For all my innate poverty and inadequacy of English language, I can’t fathom the meaning of “not being worthy of contempt”.
iv. It is also time to recall what’s come of the news item published in the DNA of July 17, 2017, (and later reported in The Times of India and in the Bar and Bench): “A three-member committee of judges, constituted by the Supreme Court to conduct an in-house inquiry against two sitting judges of the Odisha High Court, has halted its proceedings after the name of a senior Supreme Court Justice cropped up during the course of the probe.” The panel, headed by Punjab and Haryana High Court Chief Justice SJ Vazifdar, had written to the CJI for guidance and direction s. What’s the status of the case now? Is the finding also relevant for this case as well?
v. With the atmosphere vitiated in the Supreme Court and the judges cleaved, questions are likely to be revived about the CJI’s past, the CBI inquiry, and wondering if the present mimics the past: obtaining a lease of two acres of agricultural land in 1979 what appears a serious lapse in conduct in the wake of an affidavit filed by him (as a condition for allotment) that “the extent of landed property held by me including all the members of my family is nil.” On investigation, the lease was cancelled in 1985, with the order stating that “the opposite party (Justice Misra) was not a landless person and as such he was not eligible for settlement of govt land for agricultural purpose… I am satisfied that the lessee has obtained lease by misrepresentation and fraud.” This won’t be a happy development.
vi. Vikas Mahendra in an article in The Wire titled No One Should Be a Judge in his Own Cause has raised an important issue of legal propriety in that “…what will remain a matter of concern is the privilege the Chief Justice now enjoys. The consequence of the court’s order is that any attempt to hear a matter – even one which involves potential impropriety on the part of the Chief Justice himself – can only succeed if the Chief Justice so permits. This means that the Chief Justice can potentially prevent urgent hearing of the matter – either by directly rejecting any attempt to hear the matter urgently, or, more subtly, by agreeing to hear a matter but not constituting the bench that would hear the matter.” In other words, what happens when the CJI is under a potential cloud? The conventions are silent. The Rajasthan High Court order passed by Supreme Court in 1998 for High Courts quoted in the CJI’s order of November 10, 2017, is being ipso facto made applicable for the Supreme Court as well. It’s an extrapolation, with both law and convention being silent. Must then judiciary forfeit its independence and autonomy on the judicial side and go over to the executive, the President of India? To me, it is best left to the Supreme Court to resolve this issue internally by a bench consisting of the 5 senior-most judges sans the CJI. Justice Arun Mishra’s remarks why the senior-most 5 judges and not others be a part of the bench is a non sequitur only because it undermines the logic of constitution of the Supreme Court collegium. In the instant case, though the touching glory is a bench consisting of judges other than the senior judges who by dint of their own seniority in the pecking order constitute the collegium to perform another important judicial function: selection of judges in the higher judiciary.
The issue of “fairness and avoidance of real or perceived conflict of interest” are nothing but rephrasing of the Restatement of Values of Judicial Life, as adopted by Full Bench of Supreme Court on May 7, 1997. Let me quote the first and last paras of the same below:
Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly any act of the judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception, has to be avoided.
Every Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.
How much this case will fortify the spirit of the full bench of the Supreme Court will be tested in the days ahead. One also wonders if this judgment shall pass the scrutiny of legal practitioners, judges and commentators in any modern constitutional democracy like the US, the UK, Australia and Canada. For, in a manner of speaking, perception after all is half the judgment!
But I can already sense the air of despondency all around post this incident. People I discussed the issue with are both shocked and distressed at the goings-on. A former Secretary to the government of India lamented: “The last citadel too has collapsed. The image of the Supreme Court as the final bulwark against corruption has been irretrievably breached. As institutions fall like nine pins one by one, are we heading for a catastrophic form of governance? That corruption has been going on in the bowels of the hallowed domains of courts at all levels, was well-known but only now one sees the crude and blatant manner in which laughable technical trivialities are invoked to derail the truth. Strangely none of the leading news channels are carrying any analysis of this sordid happening. Eventually even the glimmer of truth will be snuffed out.” Therein lies the nub.
Sometime back in a piece in The Quint I had said that the Supreme Court is too precious an institution; hence the need to firewall it from dross. “Yet, given our feudal makeup, public offices can vest public servants with outsized sense of importance, where individuals make institutions identify with their actions and breach turfs.” Hence, the need for conscious self-restraint (“Not worthy of contempt” is an example), also individual/institutional prescriptions. And the humility to internalize that public officials are mere instruments to discharge public duties within the bounds of propriety, courtesy, and realism, both enjoined and expected. It isn’t more dire than now.
The writer, Sudhansu Mohanty, is an acclaimed author and previously served as a Financial Adviser to the Ministry of Defence and Ministry of Environment, Forests & Climate Change.
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