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I must confess that for all my lack of legal knowledge and wisdom, but looked through from innate commonsense, the judgment is rather intriguing, yet quite in line with what one was expecting when the hearing concluded on November 13, 2017 before the bench of Justices Agarwal, Arun Mishra and Khanwilkar. But there are few thoughts that haven’t been raised yet. Let me say that here.
1. In the welter of battles between lawyers (authorized vs non-authorized but interested lawyer onlookers)/judges in multiple benches/citizens and procedures followed/not followed, what’s more vital for a revered institution like the judiciary (here it concerns the apex court of the land), but sadly has been missed out amid the courtroom cacophony are many vital issues: the alleged CONFLICT OF INTEREST in the instant case; the petitioner’s request for the CJI’s RECUSAL in this case; the ASSIDUOUSNESS OF THE CJI to adjudicate the case administratively and judicially – everything seems puzzling, when it shouldn’t be, but be clear and unambiguous.
2. As a former government servant, I am concerned more about institutional integrity than anything else. For a moment, for sake of argument, let’s accept that the petitioner(s) were in the wrong. Here the issue is not one of persons or the dramatis personae involved, we can shoot down the messenger(s). But what about the issues raised – CONFLICT OF INTEREST, request for the CJI’s RECUSAL in this case, and the ASSIDUOUSNESS OF THE CJI to adjudicate the case administratively and judicially? This needs to be seen with regard to the damage it can wrought on such an important and revered institution of Indian judiciary. These are no trivial issues, sadly have been completely averted in the judgment. They simply cannot be ignored for the cause of institutional integrity and rectitude per se and for the citizens at large.
3. I cannot understand why is the idea of a SIT headed by a former CJI so abhorrent to the bench vis-à-vis a CBI investigation? Can’t he, if so appointed, be trusted with his sense of fairness and impartiality? In my innocence I would say that even a former SC judge (who wasn’t a CJI though) like Justice Santosh Hegde would perfectly fit the fairness bill.
4. I wonder if the Bench has been impolite in his judgment to have picked and harped upon (even apotheosized) the term “forum-shopping” (alluded 27 times inside 38 pages) in the judgment. As a lay man with no pretensions of any legal knowledge and least its nuances, I feel diminished. To me, this perhaps is the blackest day for the country’s judiciary, if ever there was one.
5. Why say amounts to “contempt” multiple times, as the judgment time and time does, and “not initiate contempt proceedings” if the Bench so strongly felt it indeed was, despite the petitioner’s counsel’s clarifications? If it didn’t, repeated mention wasn’t warranted; if it did, it should have been invoked. That would have been in the fairness of natural justice. Of relevance is that Mr. Shanti Bhusan has already (while wishing to be impleaded in the case) said in an affidavit filed in 2010 that he would consider it an honour and prepared to go to jail on contempt of court for trying to clean up corruption in the judiciary. It’s time the matter alluded to in that case about 8 former CJIs of the then 16 then alleged to be undeniably corrupt is dug out from the cold(est)) storage and then heard en banc in the Supreme Court. Shouldn’t the issue be taken to its logical conclusion then and let the whole facts brought out in the public domain so that (no matter the repercussions) it is settled once for all? The implications of the judgment, sadly, will likely cascade in the days ahead, and if the issues are not remedied will be referred to in all similar future cases across the country.
6. We need to remind ourselves in the context of the present besetting crisis confronting the revered institution of Indian Supreme Court – considered the bastion to uphold the citizen’s constitutional right and the rule of law enshrined in the Constitution – that as corruption goes, alleged judicial corruption (even a sniff of it) is perhaps the highest phase of corruption in any democratic society. To trivialize and give the issue a short shrift will tantamount to breaching and impugning every avowed credo of judicial conduct and its raison d’etre. Far from seeing it in binary, it is well to realize that (sadly) it is in the interstices of averments made in the petitions, the hearings/arguments, and the judgment, shall corruption (or whisper of it) raise its ugly head unless it’s given a decent burial through arm’s length orders/processes and transparency.
Apurva – the only impact of this judgement should be the crow that Dave and Bhushans have had to eat. The SCI, including CJI, has done nothing that is even remotely controversial. In fact, it must be J. Chelameswar who should be questioned as to why he decided to go against established precedent and order the setting up of a constitutional bench that included him!! Only the CJI can constitute benches and decides who gets to sit on them. This is what was decided on Friday 10-Nov.
It could not be clearer – reading the judgement – as to what the judge fraternity of SCI thinks about people like Dave, Bhushan and Kaushal. To quote the judgement, “We cannot fall prey to such unscrupulous devices adopted by the
litigants, so as to choose the Benches, as that is a real threat to very existence of the system itself and it would be denigrated in case we succumb to such pressure tactics. The petition is liable to be dismissed and is hereby dismissed.”
The real questions need to be asked of J. Chelameswar and the litigants Bhushan & Bhushan, Dave and Kaushal.
I must confess that for all my lack of legal knowledge and wisdom, but looked through from innate commonsense, the judgment is rather intriguing, yet quite in line with what one was expecting when the hearing concluded on November 13, 2017 before the bench of Justices Agarwal, Arun Mishra and Khanwilkar. But there are few thoughts that haven’t been raised yet. Let me say that here.
1. In the welter of battles between lawyers (authorized vs non-authorized but interested lawyer onlookers)/judges in multiple benches/citizens and procedures followed/not followed, what’s more vital for a revered institution like the judiciary (here it concerns the apex court of the land), but sadly has been missed out amid the courtroom cacophony are many vital issues: the alleged CONFLICT OF INTEREST in the instant case; the petitioner’s request for the CJI’s RECUSAL in this case; the ASSIDUOUSNESS OF THE CJI to adjudicate the case administratively and judicially – everything seems puzzling, when it shouldn’t be, but be clear and unambiguous.
2. As a former government servant, I am concerned more about institutional integrity than anything else. For a moment, for sake of argument, let’s accept that the petitioner(s) were in the wrong. Here the issue is not one of persons or the dramatis personae involved, we can shoot down the messenger(s). But what about the issues raised – CONFLICT OF INTEREST, request for the CJI’s RECUSAL in this case, and the ASSIDUOUSNESS OF THE CJI to adjudicate the case administratively and judicially? This needs to be seen with regard to the damage it can wrought on such an important and revered institution of Indian judiciary. These are no trivial issues, sadly have been completely averted in the judgment. They simply cannot be ignored for the cause of institutional integrity and rectitude per se and for the citizens at large.
3. I cannot understand why is the idea of a SIT headed by a former CJI so abhorrent to the bench vis-à-vis a CBI investigation? Can’t he, if so appointed, be trusted with his sense of fairness and impartiality? In my innocence I would say that even a former SC judge (who wasn’t a CJI though) like Justice Santosh Hegde would perfectly fit the fairness bill.
4. I wonder if the Bench has been impolite in his judgment to have picked and harped upon (even apotheosized) the term “forum-shopping” (alluded 27 times inside 38 pages) in the judgment. As a lay man with no pretensions of any legal knowledge and least its nuances, I feel diminished. To me, this perhaps is the blackest day for the country’s judiciary, if ever there was one.
5. Why say amounts to “contempt” multiple times, as the judgment time and time does, and “not initiate contempt proceedings” if the Bench so strongly felt it indeed was, despite the petitioner’s counsel’s clarifications? If it didn’t, repeated mention wasn’t warranted; if it did, it should have been invoked. That would have been in the fairness of natural justice. Of relevance is that Mr. Shanti Bhusan has already (while wishing to be impleaded in the case) said in an affidavit filed in 2010 that he would consider it an honour and prepared to go to jail on contempt of court for trying to clean up corruption in the judiciary. It’s time the matter alluded to in that case about 8 former CJIs of the then 16 then alleged to be undeniably corrupt is dug out from the cold(est)) storage and then heard en banc in the Supreme Court. Shouldn’t the issue be taken to its logical conclusion then and let the whole facts brought out in the public domain so that (no matter the repercussions) it is settled once for all? The implications of the judgment, sadly, will likely cascade in the days ahead, and if the issues are not remedied will be referred to in all similar future cases across the country.
6. We need to remind ourselves in the context of the present besetting crisis confronting the revered institution of Indian Supreme Court – considered the bastion to uphold the citizen’s constitutional right and the rule of law enshrined in the Constitution – that as corruption goes, alleged judicial corruption (even a sniff of it) is perhaps the highest phase of corruption in any democratic society. To trivialize and give the issue a short shrift will tantamount to breaching and impugning every avowed credo of judicial conduct and its raison d’etre. Far from seeing it in binary, it is well to realize that (sadly) it is in the interstices of averments made in the petitions, the hearings/arguments, and the judgment, shall corruption (or whisper of it) raise its ugly head unless it’s given a decent burial through arm’s length orders/processes and transparency.
Apurva – the only impact of this judgement should be the crow that Dave and Bhushans have had to eat. The SCI, including CJI, has done nothing that is even remotely controversial. In fact, it must be J. Chelameswar who should be questioned as to why he decided to go against established precedent and order the setting up of a constitutional bench that included him!! Only the CJI can constitute benches and decides who gets to sit on them. This is what was decided on Friday 10-Nov.
It could not be clearer – reading the judgement – as to what the judge fraternity of SCI thinks about people like Dave, Bhushan and Kaushal. To quote the judgement, “We cannot fall prey to such unscrupulous devices adopted by the
litigants, so as to choose the Benches, as that is a real threat to very existence of the system itself and it would be denigrated in case we succumb to such pressure tactics. The petition is liable to be dismissed and is hereby dismissed.”
The real questions need to be asked of J. Chelameswar and the litigants Bhushan & Bhushan, Dave and Kaushal.
Link to judgement (thank God it is online or we will be stuck with interpretations galore): http://supremecourtofindia.nic.in/supremecourt/2017/35980/35980_2017_Judgement_14-Nov-2017.pdf