A Sad Moment in India’s Judicial History. BY SHANTI BHUSHAN // Credibility of Supreme Court Has Come Under Serious Threat . BY DUSHYANT DAVE
'The order made by the CJI’s bench was totally without jurisdiction and is a nullity': Shanti Bhushan
NB: If the highest judicial officer of India is (allegedly) seen to be acting in disregard of the Constitution, we are in a grave crisis. And there is no doubt that certain anti-democratic forces will be only too happy to see the system of constitutional governance degrade itself. It is highly significant that not a single major news portal from the mainstream media has chosen (today) to report these portentous developments. Can we imagine the noise the Sangh Parivar would have made if the boot was on the other foot and the media chose to remain silent? DS
What happened in the
chief justice’s court on November 10 raises very serious questions about the
future of the Supreme Court of India and the Indian judiciary as a whole. On November 9, the
bench of Justice J. Chelameswar entertained a very important writ petition. The
petition sought an independent investigation into an alleged act of corruption
which may involve members of the higher judiciary. Since this matter pertains
to the integrity and credibility of the judiciary, the bench headed by Justice
Chelameswar issued notice to the
respondents, directed the Central Bureau of Investigation to produce
all relevant papers relating to the investigation including the case diary in a
sealed cover before the Supreme Court, and listed the matter for Monday,
November 13 before a constitution bench of the five senior-most judges of the
court (including the chief justice) for further hearing.
The
investigation relates to an
FIR registered by the CBI against Justice I.M. Quddusi (retd.), who is
a former judge of the Orissa High Court, and some other middlemen from Odisha,
including one Biswanath Agrawal. It is alleged that Agrawal had collected large
sums from the proprietors of a medical college in Kanpur for getting them a favourable
order from the Supreme Court by paying off some judges. It is a fact that the
case at that time was before a bench presided over by Chief Justice Dipak
Misra. The relevant paragraph from the FIR registered by the CBI states:
“Information further
revealed that Prasad Education Trust filed a Writ Petition (Civil) No. 797/2017
in the apex court. Shri B.P. Yadav, in furtherance of the said conspiracy
requested Shri I.M. Quddusi and Smt. Bhawana Pandey who assured to get the
matter settled in the apex court through their contact and they further engaged
Shri Biswanath Agrawala, a private person, r/o HIG-136, Phase 1, Kanan Vihar,
Chandrashakerpur, Bhubaneshwar, Odisha, for getting the matter settled in the
apex court. Shri Biswanath Agrawala claimed very close contact with senior
relevant public functionaries and assured that he would get the matter
favourably settled. He, however demanded huge grati-fication for inducing the
public servants by corrupt and illegal means in lieu of the aforesaid help”
The writ asked that a
special investigation team (SIT) be constituted by the Supreme Court for
investigating this very sensitive matter. The petitition did not ask for an
investigation by the CBI as the CBI, being a tool of the Central government,
may use this information as leverage. There have been
several instances in the past when sensitive cases were heard by the five
senior most judges for creating confidence in the general public. Two such
cases were the election appeal of
Indira Gandhi and the Habeas Corpus case during
the Emergency, in which Justice H.R. Khanna had delivered his now famous lone dissent, which also happened to
have cost him the chief justiceship. It was on the suggestion of the former
attorney general of India, C.K. Daphtary, that the then chief justice, A.N.
Ray, agreed that the habeas corpus case be listed before the five senior most
judges and not any five judges that the CJI would handpick.
On the Friday,
November 10, a seven-judge bench (reduced to five judges just before the
hearing began) was hurriedly constituted by Chief Justice Dipak Misra, on which
he presided. This bench annulled the very
appropriate order passed by Justice Chelameswar on the fanciful ground
that the power of constituting benches was solely given to the chief justice as
per the Supreme Court rules. It is important to
note here that other than the CJI, none of the five senior most judges were
picked to be a part of this hurriedly constituted bench. What is most striking
is that the CJI does not seem to have confidence in the court’s four senior
most judges after himself.
An SC judge’s
powers under Article 142: The chief justice
forgets that the constitution confers a very special power to the judges of the
Supreme Court under Article 142. No other court
has been given this power, not even the high courts. This article enables
the judges of the Supreme Court to disregard any provision of any law, if they
feel this is necessary for doing complete justice in a case before them. This
special power has been alluded to and explained in two landmark judgments of the
Supreme Court. One is the seven-judge case in A.R. Antulay and the other is the
five-judge bench in Union Carbide. It was clearly
held that the powers under Article 142 were very extensive and that in
order to render real justice in any case, any law, including a
parliamentary statute, could be disregarded. There was only one limitation on
this power – that a provision in the constitution could not be disregarded.
Now there is no
provision in the constitution that only the chief justice can constitute
benches. At best, such power can be traced to a rule or convention. Both of
these do not bind the Supreme Court in view of Article 142. Therefore, the order
of Justice Chelameswar’s bench could not be nullified. In fact, the order of
the November 10 bench is totally without jurisdiction and a nullity. This point
is covered by the constitution bench decision in the Rupa Hurra case, which clearly held
that no decision of any bench of the Supreme Court could be set aside by
another bench even if it was a larger bench. The only way to set aside a
judgment is either by a review by the same bench or by a curative
petition, which can be heard by the same judges sitting with the three senior
most judges of the court. Since Article 144
provides that all civil and judicial authorities must act in aid of the court - which means that all other benches also have to implement the orders of a bench - the November 10 bench headed by the CJI could not act in disregard of the
order of the Chelameswar bench. Since this requirement is a provision of the
constitution, even Article 142 cannot be used as a recourse to circumvent it. Therefore, the order
made by the CJI’s bench was totally without jurisdiction and is a nullity.
Conflict of
interest: It also needs to be
pointed out that Chief Justice Dipak Misra cannot take any decision in this
matter because of conflict of interest as the investigation may point to his
involvement as well. In the facts mentioned
in the FIR, though the name of Dipak Misra is not explicitly mentioned, it must
be noted that while the conspiracy was being hatched, the matter was before his
bench, and also that the middleman, Biswanath Agrawal, is from Odisha and that
the co-accused, I.M. Quddusi was a former judge in the Orissa high court, which
is the home state of Dipak Misra. This clearly shows that the needle of
suspicion points towards the present chief justice. In these circumstances, the
law of conflict of interest required that the CJI not even touch this writ and
should have recused himself both from judicial as well as administrative
functions in this writ. One must remember that in the Pinochet case, even the
House of Lords had to recall its judgment because one lord’s wife had some
remote connection with one of the parties in the case.
What is the way
forward now? If the Supreme Court of India is to be saved, in my opinion, a
bench with all the judges must take stock of the situation and consider the
legal position dispassionately and wisely. (Shanti Bhushan is a
former Union law minister)
Credibility of Supreme Court Has Come Under Serious Threat . BY DUSHYANT DAVE
Chief Justice Warren
E. Burger of the US Supreme Court made a profound
statement that “A sense of confidence in the courts is essential to
maintain the fabric of ordered liberty for a free people and it is for the
subordinate judiciary by its action and the high court by its appropriate
control to ensure it.”
That is why it was
once correctly said, “If you once forfeit the confidence of your fellow
citizens you can never regain their respect and esteem.” Law Commission in its
Fourteenth Report had fore-warned, “If the public is to give profound
respect to the judges the judges should by their conduct try and observe it;
not by word or deed should they give cause for the people that they do not
deserve the pedestal on which we expect the public to place them.”
It is important for
citizens, particularly those in the legal system, lawyers, judges, jurists and
law students, to understand the seriousness of the matter involving CBI’s FIR
dated September 19, 2017, and how independent investigations into it are being stalled
by the highest judiciary… read more:
https://thewire.in/196653/supreme-court-judiciary/see also
