India's constitutional institutions are vital to ensure that it continues to function as a Republic. One such institution is the Supreme Court, which plays the role of being the guardian of the Constitution. Article 124(1) of the Constitution creates the Supreme Court and it reads:
"There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges."
(An Act of Parliament in 2009 further increased the number to 30, Parliament at various times earlier has also increased the strength of the Court.)
The Chief Justice of India is the first amongst equals in the Supreme Court. When sitting on a bench with other companion judges, the Chief Justice's vote carries just as much weight as the other companion judges. The role of the Chief Justice of India is therefore largely an administrative role. For the purpose of exercising judicial functions, the Chief Justice has only the same power as the other judges of the Court.
But what happens when these two roles collide? Over the last three days there has been high voltage drama at the Supreme Court and this drama is not unjustified. Events are unfolding that ought to concern us all as they have massive consequences. As of writing this piece, these events continue to unfold. Some background may be necessary.
It started with a case concerning a medical college in Lucknow run by the Prasad Education Trust. The trust had moved the Supreme Court against a decision by the Medical Council of India refusing permission to admit students and also encashing a bank guarantee of two crores. The MCI after inspecting the college found that its facilities were not up to the mark and had refused the necessary approvals. The dispute shuttled between the Supreme Court and the High Court at Allahabad. The present Chief Justice of India was on the bench that was hearing this dispute before the Supreme Court.
Some time in September of this year, the Central Bureau of Investigation had registered an FIR regarding the medical colleges in Uttar Pradesh. In connection with this FIR, former Orissa and Allahabad High Court judge Justice I.M. Quddusi (Retd) was arrested. The FIR filed by the CBI said that there was a potential racket that was being run to influence the outcome of the Prasad Education Trust case before the Supreme Court.
These allegations are very serious and if there is any merit to this, it would tarnish the reputation of the judiciary beyond repair. The judicial institutions in India are looked upon as the last institutions where a citizen can get some semblance of justice. If they are found to be tainted, then the problem gets even worse for the country. This is why allegations and cases like these need to be dealt with the highest sense of propriety and impartiality. There should be no semblance of doubt that the investigation is influenced by anyone.
Two writ petitions were filed in the Supreme Court concerning the CBI's FIR. One was filed by Kamini Jaiswal (WP (Cr) No. 176 of 2017) and one by the Campaign for Judicial Accountability and Reforms (WP (Cr) No. 169 of 2017). These two petitions were on the same point and contained similar prayers. The petitions asked that the allegations in the FIR be investigated by an SIT headed by a former Chief Justice of India. The point of this was simple, that the allegations in the FIR could also potentially implicate sitting members of the higher judiciary. Therefore, it was essential that they be handled in a manner that doesn't result in the public losing faith in India's judicial institutions.
On 8 November of this year, Dushyant Dave, senior advocate and Prashant Bhushan, advocate, mentioned the Campaign for Judicial Accountability and Reforms before a bench consisting of Justice J Chelameshwar and Justice S Abdul Nazeer seeking urgent listing of the case. The bench directed that the matter be listed on Friday before an appropriate bench. Mentioning is when matters that are not listed are mentioned before a bench who may direct that they be taken up on dates other than the dates that they should ordinarily appear on the cause list. The CJAR matter was to be posted before a bench consisting of Justice AK Sikri and Justice A Bhushan on 10 November 2017.
On 9 November, Dushyant Dave mentioned the petition filed by Kamini Jaiswal before a bench consisting of Justice Chelameshwar and Justice Nazeer. This petition was with reference to the FIR as well. The petition was taken up for hearing on the same day at 12.45 p.m. by the bench. The Chief Justice of India ordinarily is in charge of mentioning, but on that day, the CJI was sitting on a constitution bench concerning the dispute between the Delhi government and the Lt. Governor. The bench Rose at around 12.00 p.m. on that day.
When the matter was taken up at 12.45 p.m. by the bench of Justice Chelameshwar and Justice Nazeer, an officer of the Registry placed before the bench a photocopy of the proceedings purportedly issued by the Chief Justice of India. This letter sought the views of the Chief Justice of India about the procedure to be followed when there is a matter that has to be listed on the same day and the Chief Justice is sitting on a Constitution Bench. The Registry's letter sought directions that the matters that have to be listed on the same day, be listed before the Chief Justice at 3:00 p.m.
Justice Chelameshwar and Justice Nazeer directed that the matter be referred to a constitution bench consisting of the first five judges of the Supreme Court in order of their seniority. Dushyant Dave prayed that the CJI should not be on that bench and not be involved in deciding which bench that matter is listed before. To which the bench responded "That is why we have said first five judges". The bench also directed that the case diary and papers be placed in a sealed cover and only opened before the bench on Monday, 13 November 2017. They also placed the Registry’s note in the case file.
On 10 November 2017, things took a different turn. The CJAR petition was called out before a bench consisting of Justice AK Sikri and Justice A Bhushan. That bench expressed displeasure that another petition (Kamini Jaiswal's petition) had been filed on the same point even though the CJAR was listed before them. Prashant Bhushan, appearing in the CJAR matter informed the bench that when he mentioned the matter on 8 November 2017 before the bench headed by Justice Chelameshwar, Justice Chelameshwar had directed that the matter be placed before him on Friday. However, on the same day, he got a call from the Registry informing him that the Chief Justice had assigned the matter to another bench. He also informed the court, "There are clear directions by this Court itself that a judge cannot exercise judicial or administrative functions in cases in which there are allegations against him”, said Bhushan."
Justice AK Sikri tagged the CJAR petition along with the case filed by Kamini Jaiswal and also allowed the Supreme Court Bar Association to be impleaded in the matter. Then suddenly, there was a notification that a seven-judge bench had been constituted to hear the CJAR case. This was later reduced to five judges and the matter was suddenly listed on the same day at 3:00 p.m. This five-judge bench was to be presided over by the Chief Justice.
"Nemo judex in sua causa" is a legal maxim that dates all the way back to Roman Law. It states that no man can be a judge in his own cause. Essentially this is to ensure impartiality in judicial functions as judges cannot hear cases where they have an interest. What went on at 3:00 p.m. does cause some concern regarding that very principle.
When the matter was called out at 3.00 p.m, Bhushan appeared for the petitioner the CJAR. The bench began rebuking Bhushan citing the petition filed by Kamini Jaiswal and began asserting that no judge except the Chief Justice of India could constitute a constitution bench. Further, Supreme Court Bar Association members and lawyers assembled in the court began objecting to the 9 November order by Justice Chelameshwar and stated that the CJAR was attempting to bypass the Chief Justice's administrative powers. Other lawyers sitting in the courtroom also were permitted to voice their concerns against the petitioner and some of them even called for contempt proceedings against Bhushan. When Bhushan was addressing the bench, he was constantly quizzed and he objected to the fact that people who weren't parties to the matter were being permitted to speak, while he, as the petitioner's counsel, was being denied that right. He then raised his voice and said—
“Your Lordships can pass an order without hearing me. You have heard persons who are not parties to the case for an hour. If Your Lordships want to pass an order without hearing me, then do it.”
After which he stormed out of court while being escorted by the marshals.
The bench headed by the CJI then proceeding to pass an order stating that the Chief Justice of India was the Master of the Roster and any other order by another judge directing a matter be placed before another bench would not be binding on the Chief Justice of India. He then ordered that the CJAR petition be placed before him to direct the bench it has to be listed before.
The first problem that arises from this order on 10 November 2017 is this. The Chief Justice of India's power on the administrative side, especially one that determines how the CJI functions as the Master of the Rolls is a question of constitutional law concerning the office of the Chief Justice itself. Therefore, the order passed on 10 November 2017 was one in which the office of the Chief Justice would have had an interest in as it reaffirmed the CJI's position as the Master of the Rolls. However, the CJI himself was sitting on the bench that passed an order concerning his own powers. This is very problematic in light of the fact that no person can be a judge in his own cause. If there were problems with Justice Chelameshwar’s order on 9 November, it should have ideally been dealt with by a bench that the Chief Justice was not a part of, as the order affected the Chief Justice's powers on the administrative Side. With due respect to the office of the Chief Justice of India, the order was not one that showed a sense of judicial propriety. The Chief Justice's powers were in question and, therefore, they should have been dealt with by judges who were not the Chief Justice of India.
Secondly, the FIR filed by the CBI makes allegations regarding the Supreme Court case concerning the Prasad Education Trust. The present Chief Justice of India was on the bench that was dealing with the matter. Judicial propriety requires that the Chief Justice recuse himself from anything connected with that case as the FIR contains allegations which, in one sense, may affect a case in which the CJI was on the Bench. Even though neither the CJAR or Kamini Jaiswal's petition nor the FIR makes direct allegations against the Chief Justice of India, these allegations need to be looked into by persons who are unconnected with that office. In that sense, allowing the CJI to exercise even administrative powers in a case such as this, would be one that would breach judicial property. However, Friday's order seems to ignore that fact. With due respect to the office of the Chief Justice of India, it was wholly improper that this matter was dealt with by a bench that included the Chief Justice.
The progress of these two petitions by the CJAR and Kamini Jaiswal needs to be followed by the country with keen interest. Corruption allegations against even retired judges of the higher judiciary are enough to shake the public confidence. Further if these allegations also end up affecting current sitting members of the judiciary, the public confidence will be shaken further.
It is vital that the Chief Justice of India, along with other judges who were involved in the Prasad Education Trust case, recuse themselves from all functions judicial and administrative concerning these petitions. If these petitions are to be heard, they must not just be heard impartially, but also in a manner where it is apparent that the hearing is impartial. Justice must not just be done, it must also be seen to be done.
Friday's events should send shockwaves among India's legal fraternity, as what happened was very unprecedented and these events affect core constitutional institutions. Public trust is very difficult to gain but it is very easy to lose. Over the years the Supreme Court acting as the court of last resort and the guardian of the Constitution has earned the public trust. Be it in the 2G scam or orders concerning environmental matters, the Supreme Court of India holds the public trust as being an impartial institution. The present controversy could potentially affect that trust needs to be dealt with immediately.
Ajay Kumar is an advocate practicing at the Bombay High Court.
Updated Date: Nov 11, 2017 19:15 PM