The petition had sought that a special investigative team headed by a former chief justice of SC to replace the ongoing CBI probe.
Verdict: In a significant ruling, the Supreme Court Tuesday dismissed a writ petition seeking a judicial probe into allegations that attempts were made to bribe SC judges to influence cases.
A three-judge bench comprising justices R.K. Agrawal, Arun Mishra and A.M. Khanwilkar had heard lawyers Shanti Bhushan and Prashant Bhushan, appearing for the petitioner Kamini Jaiswal. The petition had sought that a special investigative team headed by a former chief justice of SC to replace the ongoing CBI probe.
The CBI has lodged an FIR suggesting a conspiracy involving a former judge of the Orrisa High Court to bribe judges of the apex court to influence the ruling in the case. The accused are directors of a Lucknow-based medical college that moved the SC seeking licence for this academic year.
Since the case was heard by the chief justice just a day before the CBI lodged its FIR, the petitioner had requested that he recuse from exercising administrative or judicial powers in the matter.
Context: This case was first heard by a bench of justices J. Chelameswar and Abdul Nazeer on 9 November and was referred to a constitution bench of five-senior most judges of the court. However, on 10 November, the chief justice constituted a five-judge bench and recalled the earlier order on the grounds that as the administrative head of the court only he has the prerogative to allocate cases.
The case was then passed on to the current three judge bench chosen by the chief justice.
Questions before the court:
1. Why a judicial probe is not necessary? The court says that the FIR does not make any connection to a judge of the higher judiciary and hence a judicial probe is not required.
2. Do the CJI’s directives constituting this bench and the five-judge bench amount to conflict of interest?
3. Did mentioning this petition before Chelameswar when an identical plea was pending before another bench amount to forum shopping and contempt of court?
4. On ‘damage done to the reputation of the judiciary’
Impact: There have been criticisms over the apex court’s handling of this case. The government, office of the attorney general and the Supreme Court Bar Association have said that such a petition should not have been filed at all. The allegations may or may not be true but the manner of dealing with allegations against itself has exposed the fragility of the institution’s own rules of accountability and deep fault lines between the top judges.
Key references: 1. Dr. D.C. Saxena vs Chief Justice of India (1996) 5 SCC 216 – Case that decided that when there is an allegation against the chief justice of India, it is he, who has to assign the case to a bench, as considered appropriate by him.
2. K. Veeraswami vs Union of India (1991) 3 SCC 655 – Case that lays down law on prosecution of judges.
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