India’s constitutional establishments are very important to make sure that it continues to operate as a Republic. One such establishment is the Supreme Court, which performs the position of being the guardian of the Constitution. Article 124(1) of the Constitution creates the Supreme Court and it reads:
“There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.”
(An Act of Parliament in 2009 additional elevated the quantity to 30, Parliament at numerous occasions earlier has additionally elevated the energy of the Court.)
The Chief Justice of India is the primary amongst equals within the Supreme Court. When sitting on a bench with different companion judges, the Chief Justice’s vote carries simply as a lot weight as the opposite companion judges. The position of the Chief Justice of India is subsequently largely an administrative position. For the aim of exercising judicial features, the Chief Justice has solely the identical energy as the opposite judges of the Court.
But what occurs when these two roles collide? Over the final three days there was excessive voltage drama on the Supreme Court and this drama isn’t unjustified. Events are unfolding that must concern us all as they’ve large penalties. As of scripting this piece, these occasions proceed to unfold. Some background could also be vital.
It began with a case regarding a medical school in Lucknow run by the Prasad Education Trust. The belief had moved the Supreme Court towards a choice by the Medical Council of India refusing permission to confess college students and likewise encashing a financial institution badure of two crores. The MCI after inspecting the school discovered that its amenities weren’t up to speed and had refused the required approvals. The dispute shuttled between the Supreme Court and the High Court at Allahabad. The current Chief Justice of India was on the bench that was listening to this dispute earlier than the Supreme Court.
Some time in September of this yr, the Central Bureau of Investigation had registered an FIR relating to the medical schools in Uttar Pradesh. In reference to this FIR, former Orissa and Allahabad High Court decide Justice I.M. Quddusi (Retd) was arrested. The FIR filed by the CBI mentioned that there was a possible racket that was being run to affect the end result of the Prasad Education Trust case earlier than the Supreme Court.
These allegations are very critical and if there may be any benefit to this, it might tarnish the popularity of the judiciary past restore. The judicial establishments in India are seemed upon because the final establishments the place a citizen can get some semblance of justice. If they’re discovered to be tainted, then the issue will get even worse for the nation. This is why allegations and instances like these should be handled the very best sense of propriety and impartiality. There must be no semblance of doubt that the investigation is influenced by anybody.
Two writ petitions had been filed within the Supreme Court in regards to the CBI’s FIR. One was filed by Kamini Jaiswal (WP (Cr) No. 176 of 2017) and one by the Campaign for Judicial Accountability and Reforms (WP (Cr) No. 169 of 2017). These two petitions had been on the identical level and contained comparable prayers. The petitions requested that the allegations within the FIR be investigated by an SIT headed by a former Chief Justice of India. The level of this was easy, that the allegations within the FIR might additionally doubtlessly implicate sitting members of the upper judiciary. Therefore, it was important that they be dealt with in a way that does not end result within the public dropping religion in India’s judicial establishments.
On eight November of this yr, Dushyant Dave, senior advocate and Prashant Bhushan, advocate, talked about the Campaign for Judicial Accountability and Reforms earlier than a bench consisting of Justice J Chelameshwar and Justice S Abdul Nazeer looking for pressing itemizing of the case. The bench directed that the matter be listed on Friday earlier than an acceptable bench. Mentioning is when issues that aren’t listed are talked about earlier than a bench who could direct that they be taken up on dates aside from the dates that they need to ordinarily seem on the trigger listing. The CJAR matter was to be posted earlier than a bench consisting of Justice AK Sikri and Justice A Bhushan on 10 November 2017.
On 9 November, Dushyant Dave talked about the petition filed by Kamini Jaiswal earlier than a bench consisting of Justice Chelameshwar and Justice Nazeer. This petition was just about the FIR as nicely. The petition was taken up for listening to on the identical day at 12.45 p.m. by the bench. The Chief Justice of India ordinarily is answerable for mentioning, however on that day, the CJI was sitting on a structure bench in regards to the dispute between the Delhi authorities and the Lt. Governor. The bench Rose at round 12.00 p.m. on that day.
When the matter was taken up at 12.45 p.m. by the bench of Justice Chelameshwar and Justice Nazeer, an officer of the Registry positioned earlier than the bench a photocopy of the proceedings purportedly issued by the Chief Justice of India. This letter sought the views of the Chief Justice of India concerning the process to be adopted when there’s a matter that must be listed on the identical day and the Chief Justice is sitting on a Constitution Bench. The Registry’s letter sought instructions that the issues that should be listed on the identical day, be listed earlier than the Chief Justice at three:00 p.m.
Justice Chelameshwar and Justice Nazeer directed that the matter be referred to a structure bench consisting of the primary 5 judges of the Supreme Court so as of their seniority. Dushyant Dave prayed that the CJI shouldn’t be on that bench and never be concerned in deciding which bench that matter is listed earlier than. To which the bench responded “That is why we have said first five judges”. The bench additionally directed that the case diary and papers be positioned in a sealed cowl and solely opened earlier than the bench on Monday, 13 November 2017. They additionally positioned the Registry’s observe within the case file.
On 10 November 2017, issues took a special flip. The CJAR petition was referred to as out earlier than a bench consisting of Justice AK Sikri and Justice A Bhushan. That bench expressed displeasure that one other petition (Kamini Jaiswal’s petition) had been filed on the identical level although the CJAR was listed earlier than them. Prashant Bhushan, showing within the CJAR matter knowledgeable the bench that when he talked about the matter on eight November 2017 earlier than the bench headed by Justice Chelameshwar, Justice Chelameshwar had directed that the matter be positioned earlier than him on Friday. However, on the identical day, he received a name from the Registry informing him that the Chief Justice had badigned the matter to a different bench. He additionally knowledgeable the court docket, “There are clear directions by this Court itself that a judge cannot exercise judicial or administrative functions in cases in which there are allegations against him”, said Bhushan.”
Justice AK Sikri tagged the CJAR petition together with the case filed by Kamini Jaiswal and likewise allowed the Supreme Court Bar Association to be impleaded within the matter. Then instantly, there was a notification seven-judge bench had been constituted to listen to the CJAR case. This was later decreased to 5 judges and the matter was instantly listed on the identical day at three:00 p.m. This five-judge bench was to be presided over by the Chief Justice.
“Nemo judex in sua causa” is a authorized maxim that dates all the best way again to Roman Law. It states that no man could be a decide in his personal trigger. Essentially that is to make sure impartiality in judicial features as judges can’t hear instances the place they’ve an curiosity. What went on at three:00 p.m. does trigger some concern relating to that very precept.
When the matter was referred to as out at three.00 p.m, Bhushan appeared for the petitioner the CJAR. The bench started rebuking Bhushan citing the petition filed by Kamini Jaiswal and started baderting that no decide besides the Chief Justice of India might represent a structure bench. Further, Supreme Court Bar Association members and attorneys badembled within the court docket started objecting to the 9 November order by Justice Chelameshwar and acknowledged that the CJAR was making an attempt to bypbad the Chief Justice’s administrative powers. Other attorneys sitting within the courtroom additionally had been permitted to voice their issues towards the petitioner and a few of them even referred to as for contempt proceedings towards Bhushan. When Bhushan was addressing the bench, he was consistently quizzed and he objected to the truth that individuals who weren’t events to the matter had been being permitted to talk, whereas he, because the petitioner’s counsel, was being denied that proper. He then raised his voice and mentioned—
“Your Lordships can pbad an order without hearing me. You have heard persons who are not parties to the case for an hour. If Your Lordships want to pbad an order without hearing me, then do it.”
After which he stormed out of court docket whereas being escorted by the marshals.
The bench headed by the CJI then continuing to go an order stating that the Chief Justice of India was the Master of the Roster and another order by one other decide directing a matter be positioned earlier than one other bench wouldn’t be binding on the Chief Justice of India. He then ordered that the CJAR petition be positioned earlier than him to direct the bench it must be listed earlier than.
The first drawback that arises from this order on 10 November 2017 is that this. The Chief Justice of India’s energy on the executive aspect, particularly one which determines how the CJI features because the Master of the Rolls is a query of constitutional legislation in regards to the workplace of the Chief Justice itself. Therefore, the order handed on 10 November 2017 was one by which the workplace of the Chief Justice would have had an curiosity in because it reaffirmed the CJI’s place because the Master of the Rolls. However, the CJI himself was sitting on the bench that handed an order regarding his personal powers. This may be very problematic in mild of the truth that no individual could be a decide in his personal trigger. If there have been issues with Justice Chelameshwar’s order on 9 November, it ought to have ideally been handled by a bench that the Chief Justice was not part of, because the order affected the Chief Justice’s powers on the executive Side. With due respect to the workplace of the Chief Justice of India, the order was not one which confirmed a way of judicial propriety. The Chief Justice’s powers had been in query and, subsequently, they need to have been handled by judges who weren’t the Chief Justice of India.
Secondly, the FIR filed by the CBI makes allegations relating to the Supreme Court case in regards to the Prasad Education Trust. The current Chief Justice of India was on the bench that was coping with the matter. Judicial propriety requires that the Chief Justice recuse himself from something linked with that case because the FIR incorporates allegations which, in a single sense, could have an effect on a case by which the CJI was on the Bench. Even although neither the CJAR or Kamini Jaiswal’s petition nor the FIR makes direct allegations towards the Chief Justice of India, these allegations should be seemed into by individuals who’re unconnected with that workplace. In that sense, permitting the CJI to train even administrative powers in a case reminiscent of this, could be one that might breach judicial property. However, Friday’s order appears to disregard that reality. With due respect to the workplace of the Chief Justice of India, it was wholly improper that this matter was handled by a bench that included the Chief Justice.
The progress of those two petitions by the CJAR and Kamini Jaiswal must be adopted by the nation with eager curiosity. Corruption allegations towards even retired judges of the upper judiciary are sufficient to shake the general public confidence. Further if these allegations additionally find yourself affecting present sitting members of the judiciary, the general public confidence will likely be shaken additional.
It is significant that the Chief Justice of India, together with different judges who had been concerned within the Prasad Education Trust case, recuse themselves from all features judicial and administrative regarding these petitions. If these petitions are to be heard, they have to not simply be heard impartially, but in addition in a way the place it’s obvious that the listening to is neutral. Justice should not simply be achieved, it should even be seen to be achieved.
Friday’s occasions ought to ship shockwaves amongst India’s authorized fraternity, as what occurred was very unprecedented and these occasions have an effect on core constitutional establishments. Public belief may be very tough to achieve however it is extremely straightforward to lose. Over the years the Supreme Court performing because the court docket of final resort and the guardian of the Constitution has earned the general public belief. Be it within the 2G rip-off or orders regarding environmental issues, the Supreme Court of India holds the general public belief as being an neutral establishment. The current controversy might doubtlessly have an effect on that belief must be handled instantly.
Ajay Kumar is an advocate training on the Bombay High Court.