A ques­tion of pro­bity

Ur­gent re­form is re­quired to re­store the mo­ral au­thor­ity of the Supreme Court

The Hindu - - EDITORIAL - Arghya sengupta

n Novem­ber 10, a five-judge Con­sti­tu­tion Bench of the Supreme Court led by the Chief Jus­tice of In­dia, in a case con­cern­ing cor­rup­tion aris­ing out of cer­tain ju­di­cial pro­ceed­ings, de­clared that the Chief Jus­tice is the master of the roster with the sole pre­rog­a­tive to de­ter­mine which Bench of judges gets to hear which cases. That the Chief Jus­tice, as the head of the ju­di­ciary, de­ter­mines the roster is a plat­i­tude that pales in pub­lic sig­nif­i­cance to the crit­i­cal role of the Chief Jus­tice as the em­bod­i­ment of mo­ral au­thor­ity of the en­tire ju­di­cial sys­tem. This mo­ral au­thor­ity suf­fered a fa­tal blow when the Chief Jus­tice chose to re­assert his own ad­min­is­tra­tive pow­ers in the face of al­le­ga­tions con­cern­ing the pos­si­ble lack of pro­bity of se­nior pub­lic func­tionar­ies. The sit­u­a­tion de­manded states­man­ship — un­for­tu­nately the Court en­gaged in whataboutery, rais­ing the spec­tre of con­tempt of court, only to drop it fi­nally.

OA crim­i­nal con­spir­acy

The gen­e­sis of this episode lies in the fil­ing of pe­ti­tions by Prasad Ed­u­ca­tion Trust be­fore the Supreme Court and Al­la­habad High Court. The trust op­er­ated a med­i­cal col­lege whose per­mis­sion to run cer­tain cour­ses had been de­clined. Jus­tices Di­pak Misra, Ami­tava Roy, P.C. Pant, A.M. Khan­wilkar and D.Y. Chan­drachud heard the par­ties and passed sev­eral or­ders in the Supreme Court; Jus­tices Narayan Shukla and Viren­dra Ku­mar-II passed an in­terim or­der in Al­la­habad High Court.

A si­mul­ta­ne­ous in­ves­ti­ga­tion by the Cen­tral Bureau of In­ves­ti­ga­tion (CBI) in­di­cated a pos­si­ble crim­i­nal con­spir­acy to en­sure a favourable ju­di­cial or­der in this mat­ter. Ac­cord­ing to its FIR, two per­sons man­ag­ing the af­fairs of the trust, ap­proached a re­tired judge of Al­la­habad and Odisha High Courts, Jus­tice I.M. Qud­dusi, through Sud­hir Giri of the Venkatesh­wara Med­i­cal Col­lege (part of Venkatesh­wara Univer­sity, in whose case an­other judg­ment had been passed by Jus­tice Di­pak Misra in the Supreme Court). Qud­dusi recommended the fil­ing of a pe­ti­tion be­fore the Al­la­habad High Court, in which par­tial re­lief was granted.

Sub­se­quently, when the mat­ter again reached the Supreme Court, the FIR re­veals that Qud­dusi and his as­so­ci­ates as­sured the trust of get­ting the mat­ter “set­tled” in the Supreme Court through “their con­tacts” and en­gaged Biswanath Agrawala, a res­i­dent of Bhubaneswar. Agrawala claimed “very close con­tact with se­nior rel­e­vant pub­lic func­tionar­ies” and de­manded sig­nif­i­cant grat­i­fi­ca­tion for set­tling the case. Qud­dusi, Agrawala and four as­so­ci­ates have now been ar­rested for of­fences un­der the Pre­ven­tion of Cor­rup­tion Act and the In­dian Pe­nal Code.

Since the FIR in­di­cated an at­tempt to fix a ju­di­cial pro­ceed­ing, the Cam­paign for Ju­di­cial Ac­count­abil­ity and Re­forms filed a writ pe­ti­tion in the Supreme Court re­quest­ing that a Spe­cial In­ves­ti­ga­tion Team un­der a re­tired Chief Jus­tice of In­dia be set up. This re­quest was made since it was ap­pre­hended that leav­ing the in­ves­ti­ga­tion to the CBI might mean al­low­ing the gov­ern­ment to in­flu­ence judges who would be brought un­der in­ves­ti­ga­tion.

The mer­its of such a re­quest are a dis­tinct mat­ter. How­ever, pro­pri­ety would plau­si­bly de­mand that since the FIR per­tained to a case where Jus­tice Misra had been the pre­sid­ing judge, as Chief Jus­tice of In­dia, he would not per­form his de­fault role of al­lo­cat­ing Benches for de­ter­mi­na­tion of this case or ex­er­cise his pre­rog­a­tive of hear­ing the case him­self. Do­ing so would im­ply that the Chief Jus­tice would not be “like Cae­sar’s wife”, the pu­ri­tan­i­cal stan­dard of pro­pri­ety the Court ex­pects of pub­lic ser­vants. The same prin­ci­ple would ap­ply to any judge in the Supreme Court and Al­la­habad High Court who had ear­lier par­tic­i­pated in the pro­ceed­ings. Re­cusal would not be an ad­mis­sion of com­plic­ity; in­stead it would be an af­fir­ma­tion of the prin­ci­ple that jus­tice not only be done but be seen to be done.

Di­min­ish­ing pro­pri­ety

Un­for­tu­nately, by al­lo­cat­ing the mat­ter to a Di­vi­sion Bench, the Chief Jus­tice gave this prin­ci­ple a go-by. It is moot whether the Bench en­trusted by the Chief Jus­tice would en­sure jus­tice or not — the crit­i­cal point is that such a Bench cho­sen by the Chief Jus­tice was con­gen­i­tally de­fec­tive. This im­pro­pri­ety set off a chain of im­proper ac­tions — fil­ing of a sec­ond pe­ti­tion in the same mat­ter, hear­ing of the sec­ond pe­ti­tion by Jus­tice J. Che­lameswar, the sec­ond-most se­nior judge of the Supreme Court, and an or­der by his Bench that the mat­ter should be heard by five se­nior-most judges of the Court.

To be cer­tain, de­void of con­text, each of these ac­tions is im­proper. But the im­pro­pri­ety in these ac­tions is tech­ni­cal and not sub­stan­tive. That it is the pre­rog­a­tive of the Chief Jus­tice alone to list mat­ters and con­sti­tute Benches is a con­ven­tion based on long prac­tice. How­ever, when do­ing so would cast a shadow of doubt on the process of jus­tice de­liv­ery it­self, it is not only proper but also nec­es­sary that this task is per­formed by an­other judge. The Court can­not stand on for­mal­ity and sac­ri­fice sub­stan­tive jus­tice for a vac­u­ous con­cep­tion of pre­rog­a­tive power.

This episode of plau­si­ble ad­min­is­tra­tive im­pro­pri­ety was un­for­tu­nately com­pounded by the Chief Jus­tice con­sti­tut­ing a five-judge Bench, in­clud­ing him­self, to hear the mat­ter on the ju­di­cial side. A re­sound­ing re­it­er­a­tion of the Chief Jus­tice’s own pow­ers to de­ter­mine the roster, an­nulling the or­der of Jus­tice Che­lameswar and hear­ing sup­port­ive by­standers in the Court, were signs of a Court ig­nor­ing the need for jus­tice to be seen to be done. Again, whether the right de­ci­sion was reached or not is moot — a de­ci­sion was reached in which the Chief Jus­tice was unar­guably judge in his own cause. That it­self suf­fices to make this judg­ment bad in law.

Glas­nost and per­e­stroika

To blame one in­di­vid­ual or an­other, or at­tribute mo­tives for this episode would be to miss the wood for the trees. In­stead, there are two struc­tural is­sues of con­se­quence to any­one who cares about ju­di­cial in­tegrity. First, the car­di­nal prin­ci­ple that the Chief Jus­tice of In­dia is the master of the roster must be re-ex­am­ined. Although there can scarcely be any ar­gu­ment against it as a tenet of ju­di­cial dis­ci­pline, it would be naive to con­sider it an ab­so­lute prin­ci­ple of jus­tice de­liv­ery.

In the U.K., Lord Chan­cel­lors had, for long, used the pre­rog­a­tive of Bench se­lec­tion to serve par­ti­san ends. As scholar Diana Wood­house writes, Lord Hals­bury wanted the power of trade unions re­duced and selected Benches ac­cord­ingly; Lord Hail­sham chose Benches to con­strict his col­league Lord Atkin’s abil­ity to pro­gres­sively in­ter­pret the law and Lord Lore­burn’s cherry-pick­ing of judges to reach favourable con­clu­sions is well-known. The his­tory of such abuse of pre­rog­a­tive led the U.K. to statu­to­rily es­tab­lish two lead­er­ship po­si­tions in the new Supreme Court — that of the Pres­i­dent and the Deputy Pres­i­dent, to­gether with a pro­fes­sional reg­istry and a Chief Ex­ec­u­tive. The unchecked power of the Chief Jus­tice of In­dia to con­sti­tute Benches must be sim­i­larly cir­cum­scribed. Do­ing so does not amount to mis­trust­ing the Chief Jus­tice, but rather be­ing cog­nisant of chang­ing de­mands of ac­count­abil­ity.

Sec­ond, much has been said of the in­dis­ci­pline demon­strated by Jus­tice Che­lameswar’s Bench in list­ing a case and de­ter­min­ing the Bench that hears it. Dis­ci­pline lies at the heart of ju­di­cial func­tion­ing — its com­plex rules on fil­ing, un­writ­ten con­ven­tions of se­nior­ity, ex­pected deco­rum in court­room seat­ing are all crit­i­cal com­po­nents to en­sure in­sti­tu­tional dis­ci­pline. But a sin­gle-minded re­it­er­a­tion of such for­mal norms ap­pear per­verse when con­fronted with a case where the per­sonal pro­bity of in­di­vid­u­als in the ju­di­ciary is in doubt. If only to con­clu­sively dis­pel such doubt, an in­de­pen­dent in­ves­ti­ga­tion was war­ranted. This might well have been the log­i­cal con­clu­sion of the tech­ni­cally im­proper or­der passed by Jus­tice Che­lameswar’s Bench list­ing the mat­ter be­fore the five se­nior-most judges.

For sev­eral se­nior mem­bers of the Bar to fo­cus solely on this ap­par­ent im­pro­pri­ety while re­main­ing blind to graver im­pro­pri­eties else­where and larger ques­tions of pro­bity is symp­to­matic of a le­gal fra­ter­nity that stead­fastly refuses to prac­tice the val­ues it preaches to oth­ers. Clos­ing ranks and tak­ing refuge in hide­bound norms of pro­pri­ety is like play­ing the prover­bial fid­dle, while pre­tend­ing that pub­lic con­fi­dence in the ju­di­ciary is a gift that will keep on giv­ing.

Jus­tice Kurian Joseph of the Supreme Court wrote in re­spect of ju­di­cial ap­point­ments that a ‘glas­nost’ and ‘per­e­stroika’ is re­quired if the sys­tem is to re­gain pub­lic con­fi­dence. If the mo­ral au­thor­ity of the Chief Jus­tice of In­dia and the Supreme Court is to be re­stored, some­thing sim­i­lar is needed ur­gently. Oth­er­wise the Supreme Court will soon be a far cry from the in­sti­tu­tion we all revere. Some might say, it al­ready is.

Newspapers in English

Newspapers from India

© PressReader. All rights reserved.