City Sunday

Indian judicial system in deep crisis

In an unprecedented move, the four most senior justices of the court held a press conference to highlight the critical state of India’s highest judicial body. Supreme Court justices J Chelameswar, Ranjan Gogoi, MB Lokur and Kurian Joseph addressed a press conference in New Delhi last week. They said democracy will not survive if they do not speak out now, as their attempts to get Chief Justice of India (CJI) Dipak Misra to address a crisis in the judiciary had gone unanswered.

Justice Chelameswar, who is lower in seniority only to the chief justice, said the Supreme Court (SC) owed a responsibility to the institution and the nation. “Our efforts have failed in convincing the chief justice to take steps to protect the institution [of the Supreme Court],” he said. Three other judges – Justice Rajan Gogoi, Justice Madan B Lokur and Justice Kurian Joseph – joined Chelameshwar at the press conference. “Many things that are less than desirable happened in the last few months,” Chelameswar said.

The judges were referring to CJI Misra’s allocation of cases in the SC, which many have questioned, most vocally after he moved the medical colleges’ bribery scam from Justice Chelameshwar’s court to his own in November 2017. Justice Chelameswar’s said, “We tried to collectively persuade the CJI that certain things are not right and remedial measures need to be taken, but unfortunately we failed.”

“A couple of months ago, the four of us gave a signed letter to the CJI,” he said. “We wanted a particular thing to be done in a particular manner. It was done but in such a way that it raised questions about the integrity of the institution.”

When reporters asked that this is in reference to the case of Justice Loya’s death, a special Central Bureau of Investigation (CBI) judge who is said to have died in suspicious circumstances, Justice Gogoi said yes. Asked whether the judges sought the impeachment of the chief justice, they said, “It is not for us to say…Let the nation decide.”

Justice Chelameswar added: “There are many wise men saying many wise things in this country. We don’t want wise men saying 20 years from now that Justice Chelameswar, Gogoi, Lokur and Kurian Joseph sold their souls and didn’t do the right thing by our Constitution.”

When asked, the judges denied they had broken ranks by holding the press conference.

Sequence of events

The November 10, 2017 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 SC 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 SC monitored supervision of this ongoing investigation into possible judicial corruption.

On January 11 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 SC. But on January 12, 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 SC 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 January 12.

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

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 January 12, the truth looks further away than ever.

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 CJI 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.



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