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At the time of writing yesterday’s post, the final chapter in the story remained to be told. That chapter was completed today when a three-judge bench of the Supreme Court dismissed the writ petition filed by Kamini Jaiswal, which sought an SIT investigation into allegations of judicial corruption.

As in the previous post, I do not want to go into the merits of the petitions themselves, and associated issues of judicial politics (in fact, today’s judgment doesn’t really doesn’t go into the merits of the petitions either). In the previous post, however, I had made one argument: the Chief Justice’s role as the master of the roster, with its attendant power to list matters and select benches, comes into conflict with the principle of nemo iudex (no person shall be a judge in her own cause) in that class of rare cases where the Chief Justice herself is implicated in an illegal act. In such a situation, the Chief Justice ought to be precluded from hearing the case on merits (of course), but also precluded from passing any administrative orders deciding when, and before whom, the case will be listed.

How did the three-judge bench deal with this? In paragraph 19 of its judgment, it noted that:

“As a matter of fact, this controversy has been set at rest that even when there is an allegation against Hon’ble Chief Justice of India, it is he, who has to assign the case to a Bench, as considered appropriate by him.”

The three-judge bench did not, however, provide any independent reasons justifying this position. It relied upon the Constitution Bench order of 10th November (which we discussed in the previous post), and then cited the judgment in D.C. Saxena vs Chief Justice of India. In that case, the Court had noted:

“When imputations were made against the Chief Justice, the petitioner assumed, in our view, “wrongly” that CJI cannot constitute benches nor he should discharge the functions of Chief Justice until the matter is decided. On appointment by the president by a warrant and on his taking oath of office, the CJI becomes entitled to discharge the functions and duties of that office including constitution of benches and assignment of judicial work to judges as per procedure. This responsibility flows from the office and none including a litigant has right to demand for contra position. As regards his personal disposition to hear a case by a bench of which he is a member, it is his own personal volition. The Chief Justice’s prerogative to constitute benches and assignment of judicial business would no hinge at the whim of a litigant.” (para 26)

Notwithstanding the legal correctness of this paragraph, D.C. Saxena was an entirely inapposite case upon which to rely. D.C. Saxena was a PIL petitioner who, after having had a PIL dismissed by the then-Chief Justice, filed a fresh PIL against the Chief Justice, asking that he be removed from office (among other things). The present case, however, involved a registered FIR and a CBI investigation, whose subject matter potentially implicated the Chief Justice. There is a world of difference between the two situations; but in any event, what is far more important is the three-judge bench’s failure to do two things: first, to show that the nemo iudex principle would not apply to the present case; and secondly, to show that there was something in the Constitution, or in any law, according to which the Chief Justice could be exempted from the operation of the principle.

On the first issue, the Bench repeated that the FIR did not name the Chief Justice, or any Supreme Court judge. However, that was nobody’s case; indeed, according to settled law, judges could not be named in FIRs without following a specific procedure. The Chief Justice’s involvement in the case did not stem from his being named in the FIR, but from the fact that the principal accused – a retired judge of the Odisha High Court – had claimed to be able to fix a Supreme Court bench that the Chief Justice was presiding over. Now, once that is established, there are two possibilities: either the principal accused was lying, or he was telling the truth. In the latter eventuality, the Chief Justice was certainly implicated; and the question of whether the principal accused was lying or not could – naturally – only be determined through an investigation (whether by the CBI or the SIT) and, eventually a trial.

Consequently, the naming of the Chief Justice in the FIR is irrelevant to the question of whether nemo iudex applies or not. And if nemo iudex did apply, the three-judge bench simply didn’t have an independent argument (apart from its dubious reliance on D.C. Saxena) as to why the Chief Justice was exempted, and for good reason: there isn’t one. There is nothing in the office or functions of the Chief Justice that justifies any such exemption; and, as I argued in the previous post, the Chief Justice’s role as the master of the roster can easily be taken over by Court No. 2 at a time like this, in the interests of the continued smooth functioning of the institution.

There is a third possibility, however: that the Chief Justice continuing to play his role as the master of the roster would not violate the nemo iudex principle. In the last post, I provided some detailed arguments about the nature of this administrative power, and why it was serious and far-reaching in character. What did the three-judge bench have to say about this? It said this:

“It is contempt to imply that the Chief Justice would assign it to a Bench which would not pass an order adverse to him. It is also contempt to imply that the Judges would be so amenable to comply that the Bench which heard the second writ petition could not have heard it. This Court has laid down these allegations aimed at bringing the administration of justice in disrepute.” (paragraph 22)

This, however, misses the point entirely. It was nobody’s case that the Chief Justice would assign a case to a Bench that would decide in his favour. Nor was it anybody’s case that the bench hearing it would be amenable to deciding in the Chief Justice’s favour. The point – as we discussed in the last post, is this: the structure of the Supreme Court with its multiple benches and its collegial nature, and the very character of judging as a human enterprise, are such that the power to decide who hears a case necessarily implies a measure of control over its outcome. There is no insinuation that the Chief Justice would abuse his power; what is at issue, however, is that the existence of the power necessarily means that in cases of this kind, when the Chief Justice exercises his role as the master of the roster, he acts as a judge in his own cause. He might be the most honest judge that ever lived, but that is not the point; the principle is not that “no person shall be a (dishonest) judge in her own cause”. It is – for excellent reasons – simply that “no person shall be a judge in her own cause.”

By misunderstanding the character and purpose of the nemo iudex principle, the three-judge bench effectively granted the office of the Chief Justice blanket immunity from its operation. The new principle now seems to be “no person (except the Chief Justice of India) shall be a judge in her own cause.”

What follows, however, is substantially worse. One of the three judges hearing the petition – Justice Khanwilkar – had also been on the bench (alongside the Chief Justice) that the principal accused in the FIR had claimed he could “fix”. Justice Khanwilkar’s presence on the bench hearing the petition on merits, therefore, created a conflict of an order of magnitude more serious than the one created by the Chief Justice’s administrative power to list cases; Justice Khanwilkar was exercising judicial power to decide the case. The inevitable implication of this is that not only the Chief Justice – but every judge of the Supreme Court – is exempted from the nemo iudex principle.

What was the Court’s response to this? It was a familiar one.

“Yet another disturbing feature which aggravates the situation is that prayer has been made, that one of us, Justice A. M. Khanwilkar, should recuse from the matter. This is nothing but another attempt of forum hunting which cannot be permitted. Rather this kind of prayer was held to be contemptuous, aggravating the contempt in the case of Dr. D C Saxena (supra).” (paragraph 28)

According to the three-judge bench, therefore:

(a) It was contempt of court to object to the Chief Justice exercising his administrative power to list a case in which he was potentially implicated, and

(b) It was contempt of court to ask Justice Khanwilkar to recuse himself from exercising judicial power in hearing a case in which he was potentially implicated.

It is fairly clear that on this grotesque definition of contempt, both this blog post – and the last one – are in contempt of court. However, this is not the definition of contempt of court in law. The Contempt of Courts Act is clear that there must be an act that “substantially interferes, or tends substantially to interfere with the due course of justice“; and furthermore, there ought to be clear evidence of such interference. In using the word “contempt” no less than twenty-one times in the course of its thirty-eight page order (and, on occasion, mistakenly equating it with “forum shopping”), the three-judge bench’s order is reminiscent of Humpty Dumpty in Alice Through the Looking Glass:

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

At the end of its judgment, the three-judge bench observed that:

“Let the good sense prevail over the legal fraternity and amends be made as lot of uncalled for damage has been made to the great Institution in which public reposes their faith.”

One cannot help wondering whether institutional greatness will truly be nurtured by brandishing the sword of contempt – or whether all that will lead to, in Justice Jackson’s words, will be the “compulsory unification of opinion [that] achieves only the unanimity of the graveyard.”