By imposing stiff costs on Bhushan’s organisation, Supreme Court is trying to ward off critics

The Rs 25 lakhs the CJAR has been ordered to pay could be called costs in terrorem – costs so high as to inspire fear in anyone who questions judicial matters.

With two orders, one delivered on November 14 and the other on Friday, the Supreme Court has ended the black farce enacted over the last month on petitions filed by the non-governmental organisation Campaign for Judicial Accountability and Reforms and lawyer Kamini Jaiswal. Both petitions have been dismissed by the same three-judge bench chosen by Chief Justice of India Dipak Misra.

The petitioners had sought an independent court-monitored investigation into allegations that former members of the higher judiciary took bribes to manipulate orders in the Supreme Court in favour of medical colleges that had been denied official registration by the Medical Council of India. The Central Bureau of Investigation is investigating the matter. The petitioners had also asked that the matter be heard without involving the chief justice, who had handled matters related to the Medical Council of India earlier this year.

The Campaign for Judicial Accountability and Reforms’ petition has also been dismissed with the imposition of costs of Rs 25 lakhs to be paid by it to the Supreme Court, to be then paid to the Supreme Court Bar Association Advocates Welfare Fund. The court calls this “exemplary costs”. Perhaps the more appropriate term might be “costs in terrorem” – costs so high as to inspire fear in anyone who questions judicial action or inaction, or demands accountability from the judges of the Supreme Court.

This is not the first time in the recent past that the court has imposed such a high cost on a litigant who has approached it in a public interest litigation. Earlier this year, the non-governmental organisation Suraz India Trust, which had filed 64 cases in the Supreme Court and various High Courts, was slapped with costs of Rs 25 lakhs for wasting the court’s time. The Supreme Court also directed the high courts not to entertain any writ petition filed by the trust. Others who filed frivolous public interest litigations in the court also received similar orders.

Costs are intended to compensate a party for having had to litigate a claim in court. It can also be used to sometimes compensate the court for its time having been wasted. Here, despite a previous order of the court tagging the two petitions together, it was the court that ordered them to be heard separately, listed them two weeks apart and then dismissed both. Whatever irregularity was committed in filing two separate petitions was compounded by the court itself on the insistence of the chief justice of India bent on asserting his power to choose benches in the face of a serious conflict of interest.

The award of the costs to the advocate welfare fund is also puzzling and raises more uncomfortable questions about the Supreme Court Bar Association’s involvement in the matter. While it was not a party, its office bearers were conspicuously present in the hearing on November 10 demanding that the court initiate contempt proceedings against Prashant Bhushan of the Campaign for Judicial Accountability and Reforms and the petitioners for simply raising the topic. It is not unknown for the courts to order the payment of costs to certain charities, legal aid services or even advocate welfare funds in specific cases, but the sequence of events in this case must prompt questions about this practice.

Impact on investigation

The dismissal of the petitions asking for a special investigation team notwithstanding, the two orders could also gravely prejudice the ongoing investigation by the Central Bureau of Investigation. Theoretically, the accused in the case (including former Odisha High Court judge IM Quddusi and Bhawana Pandey) could ask that the first information report filed by the investigation agency be quashed on the grounds that the Supreme Court has itself said no public official was named in the document, which alleges that offences under the Prevention of Corruption Act, 1988 (bribery of a public official) are said to have been committed. When any case is filed, even by the accused, prior to or during the pendency of the trial, the court takes care to mention that any finding will not have a bearing on the investigation or pending trial, which is then allowed to proceed in accordance with the law. Here, even without the full facts being present before it, the court has virtually quashed the first information report, potentially jeopardising the investigation at a preliminary stage.

Faith in the judiciary

If the court believes that this summary dismissal of the two writ petitions will restore any measure of public faith or confidence in the system, it is mistaken. To repeat a point earlier made, how can the public be expected to trust judges to judge judges? When judges gag media reporting of cases on a whim, when appointments are made with no discernible criteria in mind, when an inquiry for misconduct is stalled for unknown and unclear reasons. The independence of the judiciary from the post-Independence executive was the gain of a hard-fought battle – built on the premise that constitutional governance, as opposed to tyrannical rule, is impossible without it. On what basis then can one defend judicial independence if they choose to resort to methods of tyranny themselves?

One of the first things one generally learns upon becoming an adult is that the childish tactic of closing one’s eyes, shutting one’s ears and yelling does not make bad things go away. Yet, it is precisely this strategy that the Supreme Court hopes will ensure the public retains confidence in the judiciary after the unearthing of the bribery scam. This unwillingness to commit itself to serious scrutiny, even internally, let alone by an external agency, could very well be the unmaking of the Indian judiciary.

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.

Corrections and clarifications: An earlier version

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