Saturday, November 11, 2017

Confrontation in Supreme Court Of India bodes ill // Prashant Bhushan on the CJI’s ‘Extraordinary Interest’ in a Matter Directly Concerning Himself

The events that unfolded in the Supreme Court on Friday (November 10, 2017) were unbecoming of it. While some may call it a ‘constitutional crisis’, it was, in realty, a public display of loss of faith amongst brother Judges. The constitution of an extraordinary Constitution Bench took the lawyers by surprise as the proceedings were unprecedented to any Constitution Bench proceedings so far in the history of the Supreme Court. It was Friday, a miscellaneous day in the Supreme Court and most of the lawyers had left the Court by noon. 

As SC Hears Bribery Petition on Monday, Further Improprieties Come to the Fore
All 3 judges on the bench hearing the matter ought to have recused themselves 
After Yesterday’s Action Packed Hearing, CJI Constitutes Bench To Hear Kamini Jaiswal’s Petition
Exclusive: Ex-Arunachal CM’s Explosive Suicide Note that BJP is Refusing to Probe
A Sad Moment in India’s Judicial History - Shanti Bhushan
If the Supreme Court is to be saved, a bench comprising all its judges must take stock of the situation and consider the legal position dispassionately and wisely

Around 2.55 pm, the lawyers and media personnel were shocked to hear about the constitution of an extraordinary Constitution Bench scheduled at 3pm. The lawyers were in fact eagerly waiting for a Constitution Bench comprising of the first five senior Judges which was scheduled to sit on Monday and its approach to the whole issue. “What was the need for such a sudden constitution of a new bench?” “What are the issues? Why such a Constitution Bench with different set of Judges, when a Bench of comprising of five senior most Judges was already constituted whether rightly or wrongly?  What if the same issue is considered by the forthcoming Monday Constitution Bench?  If Justice Chelameshwar’s order is improper, but why can’t that issue also be considered by the Monday Constitution Bench?  Is there any disqualification for The Chief Justice to constitute the Bench?” were some of the questions that confused the lawyers.... read more:

Prashant Bhushan on the CJI’s ‘Extraordinary Interest’ in a Matter Concerning Himself
An extra-ordinary development took place in the Supreme Court today (Friday, 10 November 2017). On 19th September this year, the CBI had registered a very serious FIR, alleging that there was a conspiracy to bribe judges of the Supreme Court, in connection with a Medical College case which was going on before the Supreme Court. Immediately after that FIR, the CBI conducted raids and arrested some people, including a retired judge of the Orissa high court and recovered about Rs 2 crores in cash. They also arrested a middleman from Orissa who had been engaged to influence the Supreme Court Judges. We don’t know what further investigation the CBI has done, but given the seriousness of this matter which affects the independence and integrity of the judiciary, we felt that this is a matter which could not be left in the hands of a caged parrot of the government, namely the CBI. This needs to be investigated by an independent, fair body which will do a thorough investigation and it should be monitored by a former chief justice of the Supreme Court.

So a petition was filed (by the Campaign for Judicial Accountability and Reforms, [CJAR]) seeking an SIT monitored by the Supreme Court and headed by a former chief justice of the Supreme Court. This petition was mentioned for hearing on November 8, 2017, before Court 2 (Justice Chelameswar and Justice Nazeer). The mentioning took place before Court 2 for two reasons. First, Court 1 was in a constitution bench and therefore mentioning for urgent listings were before Court 2; second, the Chief Justice was directly involved in this matter (since he was hearing the medical college case) therefore, he ought not to have heard this matter either on the judicial or the administrative side. Court 2 directed that this matter should be placed on Friday before his bench. But thereafter, at lunchtime, I received information from the registry that the Chief Justice (Justice Dipak Misra) had passed an order listing it before some other bench. Later we came to know it was Court 6 (Justice Sikri and Justice Ashok Bhushan).

Yesterday (Thursday, November 9, 2017) a similar petition was filed by Kamini Jaiswal, in which again, an urgent mentioning was made. It was heard at 12:45 pm (Friday) by Court 2. Court 2 passed an order saying that since this was a very serious matter involving the independence and integrity of the judiciary, it should be heard by a bench of five senior-most  judges of the Supreme Court on Monday the 13th. They also directed that all the material collected by the CBI should be deposited with the Registrar who would then place it before the five judge bench hearing the matter. When our matter came up on Friday before Court 6, I told the judges that there was already an order referring this matter to a constitution bench of five senior judges and therefore it should be tagged along with that. I thought that they had passed an order tagging the two matters (CJAR and Kamini Jaiswal). But thereafter at 2:45 pm I received a call from the registry saying that there was a seven judge bench constituted in the Chief Justice’s court and I should immediately come to Court 1... When I went there, I found that there were seven chairs and then two chairs were removed and eventually five judges came, which included the Chief Justice but none of the other senior judges of the Supreme Court… read more:

No One Should Be a Judge in his Own Cause
Nemo judex in causa sua, a dictum that translates to “no one should be a judge in his/her own cause”, is widely considered a pre-requisite to a reliable, trustworthy judicial system. This principle is meant not merely to prevent a potential wrong-doer from condoning his errors by judging the validity of his actions, but also, and more importantly, to preserve public confidence in the sanctity and independence of the judiciary.  Sadly, on Friday, a five-judge bench of the Supreme Court left this very foundation of our judicial system in tatters...

NBThe citation below is from a book on Nazism (published 1942): Behemoth, The Structure and Practice of National Socialism; by Franz Neumann, p 27. A PDF file may be read here: DS. 

(The counter revolution) ‘…tried many forms and devices, but soon learned that it could come to power only with the help of the state machine and never against it… the Kapp Putsch of 1920 and the Hitler Pustch of 1923 had proved this.. In the centre of the counter revolution stood the judiciary. Unlike administrative acts, which rest on considerations of convenience and expediency, judicial decisions rest on law, that is on right and wrong, and they always enjoy the limelight of publicity. 
Law is perhaps the most pernicious of all weapons in political struggles, precisely because of the halo that surrounds the concepts of right and justice… 

‘Right’, Hocking has said, ‘is psychologically a claim whose infringement is met with a resentment deeper than the injury would satisfy, a resentment that may amount to passion for which men will risk life and property as they would never do for an expediency’. When it becomes ‘political’, justice breeds hatred and despair among those it singles out for attack. Those whom it favours, on the other hand, develop a profound contempt for the very value of justice, they know that it can be purchased by the powerful. As a device for strengthening one political group at the expense of others, for eliminating enemies and assisting political allies, law then threatens the fundamental convictions upon which the tradition of our civilization rests…(emphasis added)

See also
The law of killing - a brief history of Indian fascism
Ajmer blast case: Two including a former RSS worker get life imprisonment

Very short list of examples of rule of law in India