This is the gravest crisis the judiciary and the legal profession have ever faced in India

The events of November 10 in the Supreme Court show its unwillingness to even address the most basic questions of institutional integrity.

November 10, 2017, witnessed a gross and unconscionable abuse of power by the Chief Justice of India, Justice Dipak Misra, unparalleled in the history of the Supreme Court of India. As other commentators have pointed out (here, here, here and here) it is, if not the lowest, then certainly one of the lowest points in the history of an institution that ordinary citizens of India look up to. The credibility of the institution, built up over several decades, already under stress in the last few years, crumbled in two hours of high drama. It is important to remember how we got here, why the Chief Justice of India’s actions are so unpardonable and why things may never be the same again.

Sequence of events

The immediate sequence of events leading up to the events of November 10, 2017 are detailed here, but some more background is needed to understand it fully. The story really starts with the Central Bureau of Investigation’s arrest of a hawala operator who led them eventually to a retired judge of the Orissa High Court, IM Quddusi who, it was claimed, had taken money from a medical college with a promise to help them get a favourable judgement from the Supreme Court on the question of permissions to admit students for the 2017-’18 academic year from the Medical Council of India.

The Campaign for Judicial Accountability and Reforms led by Prashant Bhushan and later, Kamini Jaiswal, filed a petition asking for a Supreme Court monitored supervision of this ongoing investigation into possible judicial corruption. On Thursday, a bench led by Justice J Chelameswar directed that a Constitution bench be formed of five senior-most judges to deal with Jaiswal’s petition. The order said that the bench should consist of the five senior-most judges of the Supreme Court. But on Friday, this order was nullified by a fresh Constitution bench led by Misra and a new bench set up by him.

The medical college in question, run by Prasad Education Trust, had approached the Supreme Court earlier this year in a case which was heard by a bench of Misra, Justice Amitava Roy and Justice AM Khanwilkar. It cannot be missed that both Justices Roy and Khanwilkar were also on the “Constitution Bench” that Misra set up on Friday.

It is true that the names of Misra or his two colleagues on the bench are not mentioned in the first information report filed by the CBI. But we must remember that according to the judgement of the Supreme Court of India in K Veeraswami v Union of India, no complaint can be made against a judge of the Supreme Court without the written permission of the Chief Justice of India, and if the complaint is about the Chief Justice of India, then permission has to be obtained from such judge or judges of the Supreme Court as the Union Government sees fit. The CBI thus could not, by itself, have named any Supreme Court judge in the FIR, without the government taking the requisite permissions.

The alleged offence of bribery of a public official does not actually name a specific public official yet. The investigations have not made any progress on the involvement of any sitting Supreme Court judge, yet. It is public knowledge that the writ petition filed by the other accused, for permission, was heard by Misra, Roy and Khanwilkar on July 26 and an order was passed on August 1, asking for a fresh decision to be taken regarding permission denied to petitioner colleges. Crucially, it was heard as part of a batch of matters challenging decisions of the Union Government and the committee overseeing the functioning of the Medical Council of India in respect of permission given to medical colleges.

The obvious questions arise: Would it not be the most logical thing to do to include the above judges in the ongoing investigation, after going through the proper procedures? Does this not warrant an inquiry into the functioning of the Supreme Court? Is it not reasonable to investigate if the alleged bribery in the Prasad Education Trust case was a one-off or could there be more such cases? Would it not have advisable for Misra to have welcomed such a probe as it would have once and for all cleared all controversy?

These questions have no answers and thanks to Misra’s actions on Friday, the truth looks further away than ever.

While Chelameswar’s orders early listing of the petitions by CJAR and Kamini Jaiswal and reference to the Constitution Bench of five senior-most judges were debatable, they did not per se cause any prejudice to anyone, and may have been warranted to ensure that justice was not only done but seen to be done.

Natural justice

The Chief Justice of India, like the Chief Justice of any High Court is the “Master of the Rolls” – the judge with the power to decide the roster of the court: who hears which case and when. This was never in dispute. The “order” passed by the “Constitution Bench” reiterating the legal position makes no reference to the facts which prompted these proceedings. The writ petition was filed given that Misra’s conduct was in question and, when it came to a judicial inquiry about the same, he cannot be allowed to be a judge in his own cause. This cardinal principle of natural justice, the cornerstone of any independent and impartial judiciary, and one which courts in common law jurisdictions have recognised for over 400 years was violated with impunity. While the order cites case-law and precedent to assert his powers as a master of the rolls, it does not, even in passing, address the argument made by Prashant Bhushan and the petitioners that Misra, as Chief Justice of India, should have recused from hearing this case.

Misra also deliberately avoided including any of the next six senior-most judges in the “Constitution Bench” he set up, suggesting that he had either no faith in his fellow judges to be neutral and impartial in this matter or he feared any neutrality and impartiality in this matter. Neither bodes well for the judiciary.

There have been past instances where the Chief Justice’s conduct was in question before the concerned High Court or the Supreme Court. A writ of quo warranto was filed in the Madras High Court alleging that the then Chief Justice S Ramachandra Iyer had given a wrong date of birth and should have retired earlier. He was forced to resign before the case was decided but the case was listed and heard before another judge without any interference on his part. Likewise, all the four so-called judges’ cases did not feature the Chief Justice of India since the powers of the office were in question, and it may be recalled that Justice AR Dave had to recuse from the bench hearing the challenge to the National Judicial Appointments Commission, as he had become part of the commission whose validity has been challenged.

Uncertain future

On matters of integrity and accountability, the judiciary has always asked the public to trust them. Judges appoint judges. Judges decide whether judges face any consequences for misconduct. Judges decide whether judges have committed an impeachable offence. Judges decide whether judges will be named in a criminal offence. At all times, the claim has been raised that the institution of the judiciary is too precious, too fragile and too important to allow anyone but judges to safeguard it. What Misra’s actions show is that judges don’t trust other judges to safeguard the institution of the judiciary, and more importantly, the public cannot trust the judges to safeguard the institution either.

Just as shameful is the role of several advocates who had gathered in Court No 1 of the Supreme Court on Friday. They had nothing to do with the case and represented no parties. They, including some executive members of the Supreme Court Bar Association, behaved in a despicable manner – all in the defence of a judge trying desperately to hold on to his authority in the face of serious questions on his integrity. Whatever may have been the merits of Justice Chelameswar choosing to hear the case and referring it to a Constitution bench, it was incumbent upon Misra’s bench to have not permitted advocates to disparage him thus in open court and show such open disrespect to their colleagues.

This is the gravest crisis the judiciary and the legal profession have ever faced in India. Both have been beset by problems, big and small over the years. What the events of Friday show is the institution’s unwillingness to even address the most basic questions of institutional integrity. It would be a mistake to see this as just Misra exceeding his powers as the Chief Justice of India. He had the help and support of several judges on the bench. He had the active connivance of members of the Bar with many years of standing in the profession. How can the public possibly retain any shred of faith in the honesty and neutrality of the judiciary when the highest judicial body and the highest judicial authority does something like this?

Alok Prasanna Kumar is Senior Resident Fellow, Vidhi Centre for Legal Policy. He is also a Member of the Executive Committee of the Campaign for Judicial Accountability and Reforms.

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