Crisis of leadership

Print edition : December 08, 2017

Chief Justice Dipak Misra. Photo: R.V. Moorthy

Justice J. Chelameswar. Photo: NAGARA GOPAL

Justice A.M. Khanwilkar Photo: PTI

Advocate Prashant Bhushan. Photo: SHIV KUMAR PUSHPAKAR

Supreme Court lawyer Kamini Jaiswal. Photo: Anu Pushkarna

The crisis in the Supreme Court, triggered by the Chief Justice of India’s refusal to subject himself and his brother judges to the well-recognised legal maxim nemo judex in causa sua, is unlikely to pass off.

NEMO judex in causa sua is a well-known legal maxim that means “no one ought to be a judge in his own cause”. The maxim was referred to frequently by the critics of the Chief Justice of India (CJI), Dipak Misra, as the Supreme Court weathered the worst storm in its history. The storm, as it appeared to many, was of its own making as the principal functionaries of the court, while responding to an allegation of a possible bias, overreacted and sullied their own credibility in the eyes of the people.

It all began with the Campaign for Judicial Accountability and Reforms (CJAR), a non-governmental organisation (NGO), filing a writ petition seeking an impartial and independent probe into the allegation that there was an attempt to bribe Supreme Court judges to influence the outcome in a pending case. This case was filed by Prasad Education Trust, which has set up a medical college at Lucknow called Prasad Institute of Medical Science and has been seeking recognition for it.

The college was granted permission on August 20, 2016, by the Oversight Committee of the Medical Council of India, but it was debarred from admitting students for two academic sessions, 2017-18 and 2018-19, as its infrastructure and other facilities were found to be deficient. The college was among 46 medical institutes barred by the government from admitting new students because of shortcomings in infrastructure.

Hearing the trust’s writ petition challenging denial of permission, the Supreme Court first asked the Centre to provide an opportunity of hearing to the petitioner and thereafter pass a reasoned decision. The Hearing Committee of the government agreed with the earlier decision not to permit the college to admit students for two years. The trust filed another writ petition in the Supreme Court and withdrew it on August 24, with liberty to move the Allahabad High Court.

The Allahabad High Court held on August 25 that the college should not be delisted from the list of colleges notified for counselling until the next date of hearing, which was August 31. The Medical Council of India (MCI) filed an appeal against this order in the Supreme Court. On September 18, the Supreme Court ordered that there should be no renewal for the 2017-18 academic session; however, the MCI was asked to inspect the college again for the 2018-19 session. This Supreme Court bench was headed by the CJI, Dipak Misra, and included Justices A.M. Khanwilkar and D.Y. Chandrachud.


On September 19, the Central Bureau of Investigation (CBI) registered a first information report (FIR) against the following persons in connection with the case: Justice I.M. Quddusi, who retired as judge of the Odisha High Court in 2010 after spending 17 years as judge; Bhawana Pandey, a resident of Greater Kailash, New Delhi; B.P. Yadav and Palash Yadav, both of whom are members of the trust; Sudhir Giri; Biswanath Agrawala, a resident of Bhubaneswar, Odisha; and “other unknown public servants and private persons”.

It was alleged in the FIR that B.P. Yadav requested Justice Quddusi and Bhawana Pandey to get the matter “settled” in their favour in the apex court through their contacts. Yadav got in touch with Justice Quddusi and Bhawana Pandey through Sudhir Giri of Venkateshwara Medical College, Meerut. They engaged Biswanath Agrawala, a middleman, for the purpose. He demanded huge gratification for inducing the public servants by corrupt and illegal means. The FIR alleged that the accused were likely to meet Agrawala to deliver the agreed illegal gratification in Delhi shortly.

The CJAR alleged in its petition that the FIR disclosed commission of offences punishable under Section 8 of the Prevention of Corruption Act, 1988, and Section 120B of the Indian Penal Code against the named persons as well as against the unknown public servants and private persons. The petition further alleged that the matter involved persons placed at the highest echelons of power, including the justice delivery system.

The CBI has reportedly recovered close to Rs.2 crore in cash, besides Rs.1 crore which it had seized earlier from an aide of Justice Quddusi, paid by an alleged hawala operator named Ramdev Saraswat on behalf of the trust.

Justice Quddusi was released on bail within a week of his arrest. The CBI, which opposed the grant of bail to him by the court, is yet to appeal against it in the High Court.

The CJAR first mentioned its petition, a practice to request early listing of a case in view of its importance and urgency, before Justice J. Chelameswar, who is second in seniority in the Supreme Court, on November 8. Justice Chelameswar, before whom lawyers “mention” their cases when the CJI sits on the Constitution Bench, as a convention, orally directed that the matter be listed before “him” on November 10.

However, the cause-list for November 10 showed the CJAR’s petition listed before Justices A.K. Sikri and Ashok Bhushan at Court No.6 under the direction of the CJI, who has the sole administrative power of directing the registry as to which matter should be heard by which judges.

The CJAR felt that the CJI, since he headed the bench that heard the trust’s petition seeking recognition, ought to have recused himself from hearing its writ petition in this case and also from exercising his “administrative” authority of deciding which bench would hear it.

The CJAR, therefore, felt that it would make sense to file a fresh writ petition, similar to the first, and try its luck with the Justice Chelameswar-led bench again.

Thus, the CJAR asked one of its members, the advocate Kamini Jaiswal, to file a fresh petition as an individual and seek its early hearing before Court No.2 on November 9. Kamini Jaiswal did so, through the senior counsel Dushyant Dave, who mentioned it in the morning of November 9 before Justices Chelameswar and S. Abdul Nazeer, who agreed to hear it at 12:45 p.m. that day.

Justices Chelameswar and Abdul Nazeer, who went through the CBI’s FIR, found the allegations “disturbing” and also recorded that they pertained to the Supreme Court. The bench found it appropriate that the matter be heard by the Constitution Bench of the first five judges of the Supreme Court in the order of seniority, on November 13.

The Chelameswar-S. Abdul Nazeer bench also directed the CBI to keep all the material it gathered during its investigation in a sealed cover and submit it to the Constitution Bench on November 13.

When Dave pointed out that the CJI ought not to hear this petition, Justice Chelameswar evaded a direct reply, and pointed to the composition of the bench that would hear it. The implication was that the petitioner could address the Constitution Bench itself on the question of the CJI’s recusal from hearing it, and that the Constitution Bench would be in a better position to decide whether Dave’s plea would be valid.

Justice Chelameswar’s order, in retrospect, appears justified because he had, as the second in the hierarchy of judges, the duty to exercise the administrative responsibility of the CJI in case the latter was incapacitated from exercising it.

On November 10, around 1 p.m., the CJAR’s petition came up for hearing before Court No.6 as per its listing under the direction of the CJI.

Justices Sikri and Bhushan expressed their anguish and dismay that the petitioners moved a second petition before Justice Chelameswar on November 9 on the same issue, despite being aware that the first one was listed before them on November 10.

When questioned about the urgency to do so, Prashant Bhushan, counsel for the CJAR, told the Sikri-Bhushan bench that he had the highest respect for the bench but that Kamini Jaiswal’s petition before Justice Chelameswar was required because he believed that the CJI also lacked the administrative competence to assign the case to any bench. The Sikri-Bhushan bench, however, agreed with him that the allegations in the FIR were serious and hinted that it was not against tagging it with Kamini Jaiswal’s petition, to be heard by the Constitution Bench, on November 13. Justice Sikri is sixth in seniority in the Supreme Court. If the CJI had recused himself from hearing the petitions on November 13, he would have been the natural choice to fill that vacancy on the Constitution Bench.

But events took a different turn soon. Justices Sikri and Bhushan had recorded in their order, as a matter of routine, or abundant caution, that the matter be placed before the CJI for his decision on whether to tag it with Kamini Jaiswal’s petition, to be heard by the Constitution Bench, without indicating their own view on the matter. Justice Sikri perhaps thought that unlike Justice Chelameswar, he was sixth in the hierarchy of judges in the Supreme Court and could not have, on his own, excluded the CJI from exercising his administrative authority. If the CJI decided to recuse himself from exercising his administrative responsibility in this matter, nothing would have prevented him from doing so, despite Justice Sikri’s reference to him.

The CJI found that the order of Justices Sikri and Bhushan, which he was shown, was inconsistent with the November 9 order of Justices Chelameswar and S. Abdul Nazeer, both coordinate benches of two judges, and had to be resolved by him by virtue of his judicial and administrative responsibility as the CJI, and that it should be done before the end of November 10, the last working day, before November 13 when the Constitution Bench, directed to be set up by Justices Chelameswar and S. Abdul Nazeer on November 9, would hear the matter.

The result was his extraordinary decision to set up a Constitution Bench of seven judges, to meet at 3 p.m. that day, to deliberate the issue. The bench was to comprise, besides himself, Justices Sikri, R.K. Agrawal, Arun Mishra, Amitava Roy, A.M. Khanwilkar and Ashok Bhushan. At 2:40 p.m. the Supreme Court’s cause-list showed the list of seven judges who were to hear the petition filed by the CJAR at 3 p.m. and seven chairs were placed in Court No.1. Five minutes before 3 p.m., two chairs were removed from the podium, which confirmed that only five judges were to hear the matter. Justices Sikri and Bhushan opted out, without citing any reasons.

Controversial hearing

The hearing by the Constitution Bench, assembled at short notice, on November 10 aimed to resolve the confusion and chaos expected to result from the two conflicting orders of two coordinate benches of equal strength, but its proceedings themselves were not orderly. From the beginning, the bench proceeded with the single-point agenda of annulling the November 9 order of Justices Chelameswar and S. Abdul Nazeer, referring Kamini Jaiswal’s petition to the Constitution Bench of the first five judges of the Supreme Court on November 13. This, despite the fact that the cause-list did not show Kamini Jaiswal’s petition before the November 10 Constitution Bench.

As counsel for the CJAR, Prashant Bhushan tried to make submissions to the bench but he was not allowed to do so. Prashant Bhushan was shouted down by other lawyers in the court, who were openly critical of Justice Chelameswar’s order of November 9. The Constitution Bench did not intervene to restore order. The bench then went ahead to permit any and every one from the assembly of lawyers to make submissions on why the November 9 order must be annulled, although the usual practice is to let only those who are connected with a case to intervene and argue. The free-for-all exercise went on for about an hour, after which Prashant Bhushan walked out of the court, saying that the bench could pass whatever order it was pleased with as he had not been heard at all in the matter.

Half an hour after he left the courtroom, the CJI dictated the order, holding that he was the master of the roster and that he alone had the prerogative to constitute the benches of the court and allocate cases to the benches so constituted.

“Needless to say, neither a two-judge bench nor a three-judge bench can allocate the matter to themselves or direct the composition for constitution of a bench. To elaborate, there cannot be any direction to the CJI as to who shall be sitting on the bench or who shall take up the matter as that touches the composition of the bench. We reiterate such an order cannot be passed. It is not countenanced in law and not permissible….”

The Constitution Bench justified its order in the interest of smooth functioning of the court and avoiding chaos in the administration of the justice dispensation system. “If any such order has been passed by any bench, that cannot hold the field as that will be running counter to the order passed by the Constitution bench. Needless to say, no judge can take up the matter on his own, unless allocated by the CJI, as he is the master of the roster,” the bench held.

It is clear from the order that the Constitution Bench impliedly overruled the previous order of November 9 by the bench of Justices Chelameswar and S. Abdul Nazeer, as the petition on which the two-judge bench had issued the order was not referred to the Constitution Bench.

This, according to most observers, is highly irregular. A Constitution Bench of the Supreme Court cannot overrule a previous order, without even mentioning it specifically as in this case, as every order of the court is binding on all benches of the Supreme Court, including those led by the CJI, unless specifically overruled. Despite this, the Constitution Bench held: “….any order passed which is contrary to this order be treated as ineffective in law, and not binding on the CJI.”

November 14 judgment

Having impliedly annulled the order of Justices Chelameswar and S. Abdul Nazeer, the November 10 Constitution Bench wanted to appear as if it was not opposed to hearing Kamini Jaiswal’s petition on merits. Thus, it posted it before the appropriate bench, again “to be allocated by the CJI”, without explaining why it did not agree with the petitioners that the CJI must recuse himself from choosing the judges who would hear this case.

On November 13, when the three-judge bench comprising Justices Agrawal, Mishra and Khanwilkar heard the case in Court No.8, the question of recusal of judges again surfaced. Justice Khanwilkar, who was on the bench which heard the trust’s petition, was requested by the petitioner’s counsel, Shanti Bhushan, to recuse himself. Shanti Bhushan also questioned the competence of the Justice Agrawal-led bench to hear the matter because the CJI constituted it despite their plea that the CJI ought to have recused himself both judicially and administratively.

The bench, on November 14, refused the recusal plea and instead relied on the controversial decision of November 10 Constitution Bench to hold that the CJI was the master of the roster and that if he had constituted the bench, there could be no grievance against it.

The three-judge bench also averred that even when there is an allegation against the CJI, it is he who has to assign the case to a bench as considered appropriate by him. This has not only been settled by the Constitution Bench on November 10 but also in the matter of Dr D.C.Saxena v CJI (1996), the bench held.

“It is contempt to imply that the Chief Justice would assign it to a bench which would not pass an order adverse to him,” the bench held.

The November 14 judgment would appear to forestall any attempt to bring an allegation against a judge to its logical conclusion.

It held: “Any complaint against a judge and investigation by the CBI, if given publicity, will have a far-reaching effect on the judge and the litigant public.”

It described Kamini Jaiswal’s petition as a misconceived venture, as it wrongly presupposed that the investigation involved the higher judiciary and that the Supreme Court’s functionaries were under the scanner in the case. It is far-fetched and too tenuous to even assume or allege that a matter was pending in the Supreme Court for which any bribe was to be delivered to anyone, it held.

The bench found the filing of two identical writ petitions by the CJAR highly improper and as an attempt at forum hunting. It said that the petitions, by making scandalous remarks, were tantamount to interfering with the administration of justice. On the plea for recusal of Justice Khanwilkar, the bench said: “In our opinion, rather it is the duty of the bench to take up such matter firmly; such unscrupulous allegations and insinuations cannot be allowed to be hurled by oral prayer made on behalf of the petitioner for recusal.”

The bench, while finding the action of the petitioners contemptuous, refrained from initiating contempt proceedings against them, ostensibly as a gesture of its magnanimity. Considering the groundswell of outrage against the CJI’s refusal to submit to the norms of recusal, whatever the degree of truth in the allegations and insinuations in the CBI’s FIR, such a display of magnanimity may well be misunderstood by civil society.