Over the past fortnight, India has witnessed unprecedented events in the Supreme Court. They were unfortunate and avoidable, and do not bode well for institutional credibility.
Two petitions were filed before the Supreme Court seeking the constitution of a special investigation team headed by a former chief justice of India to look into allegations of an attempt to influence a bench of the court (purportedly headed by Chief Justice of India Dipak Misra) hearing a matter involving a medical college. The Central Bureau of Investigation is inquiring into charges that a former High Court judge took bribes to manipulate Supreme Court orders in favour of the college, which had failed to get an official registration.
The first petition, Campaign for Judicial Accountability and Reforms versus Union of India, came up on November 8 before Justices J Chelameswar and S Abdul Nazeer in Court Number 2. The court directed that the matter be listed on November 10 before an appropriate bench. The chief justice, in the exercise of his administrative powers, decides which matter should be placed before which bench. Accordingly, the petition was placed before a bench of Justices AK Sikri and Ashok Bhushan.
The second petition, Kamini Jaiswal versus Union of India, came up before Chelameswar and Nazeer on November 9 at 10.30 am. Jaiswal, a lawyer, held that it became necessary to file the second petition as the chief justice could not have dealt with the first petition either on the judicial or the administrative side. The court directed that the matter be listed at 12.45 pm. When the petition was heard, it passed an order recording that the Central Bureau of Investigation had registered a first information report containing serious allegations against a retired High Court judge. It said, “The FIR contained certain allegations which are disturbing. The allegations pertain to the functioning of this court.” The matter was directed to be listed on November 13 before a Constitution bench of the five senior-most judges of the Supreme Court.
When the petition of the Campaign for Judicial Accountability and Reforms came up before Sikri and Bhushan on November 10, the court took note of the above order and directed that this petition too be placed before the chief justice so that appropriate orders for its listing could be passed. At 3 pm the same day, a Constitution bench comprising the chief justice and Justices RK Agarwal, Arun Mishra, Amitava Roy and AM Khanwilkar was constituted to hear the Campaign for Judicial Accountability and Reforms’ petition.
What followed was an undignified fracas, culminating in an order laying down that the chief justice is the master of the roster and he alone has the prerogative to constitute benches and allocate cases. The court held that no other bench could direct the composition of a bench and any order to the contrary would be ineffective in law. On merit, the matter was directed to be listed before an appropriate bench to be allocated by the chief justice.
Court censure
Jaiswal’s petition was heard by a bench of RK Agarwal, Arun Mishra and AM Khanwilkar on November 13 and dismissed. A judgement dated November 14 deprecated the conduct of the petitioners in filing successive petitions and making scandalous remarks, saying it was tantamount to contempt of court and forum-shopping (a practice of searching through multiple courts to file or transfer cases to one most likely to give a favourable result). The court relied on the judgement in Dr DC Saxena versus Chief Justice of India (1996), which held that even when accusations are made against the chief justice, it is his prerogative to constitute benches and assign judicial business, and it does not hinge on the whim of the litigant. By assigning judicial work to brother judges, the chief justice did not become a judge in his own cause, and it will be tantamount to contempt of court to imply that the chief justice would assign the matter to a bench that would not pass an order adverse to him.
Though the court refrained from invoking its contempt jurisdiction, it observed:
“None of us is above law; no person in the higher echelons is above the law but, at the same time, it is the duty of both the bar and the bench, to protect the dignity of the entire judicial system. … In case majesty of our judicial system has to survive, such kind of petitions should not have been preferred…”
On the merits of the case, the court in its judgement of November 14 observed that it is “far-fetched and too tenuous to even assume or allege that the matter was pending in this court for which any bribe was to be delivered to anyone”. By doing so, the court has acted contrary to the warnings it has issued repeatedly in the past that “any observations which may amount to interference in the investigation, should not be made”. The court should have, at the least, ordered that the investigation by the concerned agency continue uninfluenced by any observations in this order.
Unanswered questions
These events have damaged the credibility of the Supreme Court as an institution, but the bar alone cannot be blamed for it. While the order passed by the Constitution bench on November 10 is correct in law, the manner in which the order dated November 9 has been treated is unfortunate. The latter, passed in Jaiswal’s petition, stood nullified by the former, passed in the Campaign for Judicial Accountability and Reforms’ petition. Two questions, however, remain unanswered: whether the order passed in a particular matter could be nullified thus, while hearing a different matter; and whether this could have been done without Chelameswar and Nazeer being part of the Constitution bench.
In my personal view, the answer to both questions is no. There is no provision permitting one bench of the Supreme Court, even if it is a Constitution bench, to sit in appeal over an order passed by another bench. It may be reviewed or recalled, but this cannot be done in the absence of the judges who have passed that order, unless they have retired. The chief justice is undoubtedly the master of the roster, but such authority ought to be exercised judiciously. A judicial order may well be susceptible to error, but the same ought to be set right in an appropriate manner. There has been undue haste both in filing the petitions and hearing them.
No doubt, it is settled in law that even in a case where allegations are imputed against the chief justice, that does not take away his power to allocate judicial work to other judges on the administrative side. The November 9 order placing the matter before a Constitution bench was, to that extent, incorrect. And the order passed by the Constitution bench a day later reiterating the chief justice’s position as master of the roster was correct. However, to ease the situation, unprecedented as it was, perhaps the chief justice could have himself placed the matter before the five senior-most judges in the spirit of judicial statesmanship, having reiterated his authority and simultaneously shown that the judges repose faith in one another.
Furthermore, can the petitioners be said to have acted in contempt of court when Court Number 2 took cognisance of their arguments and directed (whether correctly or incorrectly in law) that the petition be placed before the five senior-most judges of the Supreme Court?
Apart from the imbroglio on the judicial side, certain developments have taken place on the administrative side that also point to a widening gap of faith. The Registry issued a circular on November 10 notifying that oral mentioning, in respect of matters that have not already been assigned/listed before a bench, will be allowed only before the court presided over by the chief justice at 10.30 am. Also, the Constitution bench, which ordinarily sits from 10.30 am to 4 pm, has been sitting from 11.30 am to 1 pm and then again from 2.30 pm to 4 pm since November 14.
An equal responsibility
Citizens cannot be expected to have confidence in the institution if they do not see the same among judges. Together, judges form an institution and are, strictly speaking, not individuals while discharging their constitutional duties. This is why judicial decisions are ascribed to the court or a bench rather than to judges themselves. If it is the duty of the bar to uphold the majesty of the court, the court is equally responsible for being majestic. These observations by Justice Jagannatha Shetty in K Veeraswami versus Union of India (1991) – also a judgement the order dated November 14 relied on – are apt to be reproduced here:
“A judicial scandal has always been regarded as far more deplorable than a scandal involving either the executive or a member of the legislature. The slightest hint of irregularity or impropriety in the court is a cause for great anxiety and alarm.
“A legislator or an administrator may be found guilty of corruption without apparently endangering the foundation of the state. But a judge must keep himself absolutely above suspicion to preserve the impartiality and independence of the judiciary and to have the public confidence thereof.”
Mohan Parasaran is a Senior Advocate at the Supreme Court of India.
