In Dismissing Bribery Probe, SC Equates Request for Recusal of Judges With Contempt of Court // Utkarsh Srivastava - SC is creating a dangerous aura of arrogant infallibility around itself
A request for recusal
of a judge is either accepted or refused, with reasons. The Supreme Court, on
Tuesday, set the bar on those who seek recusal of judges very high – by making
it appear as though they should be prepared to face proceedings for contempt of
court as well. This ‘chilling effect’ on seeking recusal was apparent in
the judgment
delivered by a three-judge bench which dismissed the writ petition
filed by advocate Kamini Jaiswal – who sought an independent probe into an
alleged attempt to bribe judges to settle a case before the court.
The case was heard by
Justices R.K. Agrawal, Arun Mishra, and A.M. Khanwilkar on Monday afternoon.
The judges took less than 24 hours to deliver their verdict, which
runs to 38 pages. Authored by Justice Mishra, the judgment is a classic
instance of how the judiciary can not just stonewall criticism but put its
critics in the firing line. Although the bench found Jaiswal’s petition
and averments contemptuous, it refrained from initiating proceedings against
her and her counsel. The bench orally observed that it was doing so in order to
work together for “this great institution”.
Ironically, Monday’s
proceedings were not on the merits of Jaiswal’s petition, as both the bench and
the arguing counsel ended up debating the so-called issue of propriety of
filing two identical writ petitions on the issue – and the extent of guilt of
the petitioners in this aberration.
Thus the “tearing
hurry” in filing the second writ petition by Kamini Jaiswal, and seeking
its hearing in court No.2 on November 9, which set off the current crisis
was repeatedly questioned by the bench. Prashant Bhushan answered this by
admitting that they did so because they genuinely believed that Chief Justice
Dipak Misra’s administrative decision of listing the first writ petition before
court No.6 rather than court No.2 was improper, especially because of their
plea that he ought to recuse himself both judicially and administratively in
the matter. In support of their contention, he pointed out that the Central
Bureau of Investigation’s FIR filed on September 19 cast a shadow on the
judges who heard the original medical college matter, although it did not name
any judges. Justice Arun Mishra, however, equated the “shadow of doubt on the
judges” with a contemptuous imputation on the part of the petitioners.
Dubious basis: In his response, Bhushan questioned the
“tearing hurry” on the part of the five-judge constitution bench which
assembled at short notice on November 10 to annul court No. 2’s
decision referring the matter to a constitution bench of the court’s
five senior-most judges. Justice Arun Mishra’s judgment has a
curious explanation for this “tearing hurry” on the part of the bench.
When two
coordinate benches of the court give two conflicting decisions about a related
issue, it is generally referred to the chief justice, for constituting a larger
bench to resolve the difference.
So, what was the
difference in the decisions of the two coordinate benches, which the
constitution bench had to resolve on November 10? On November 9, the bench of
Justices J. Chelameswar and S. Abdul Nazeer, found it appropriate that Kamini
Jaiswal’s petition be heard by the first five judges of the Supreme Court in
terms of seniority, in view of the disturbing allegations in the FIR, which
pertain to the court. On the forenoon of November 10, Justices A.K. Sikri and
Ashok Bhushan in court no. 6 heard the first petition filed by the Campaign for
Judicial Accountability and Reforms on the same matter, which was directed to
be listed before them on November 8 by the chief justice, after being mentioned
before court No.2.
The Sikri-Bhushan
bench agreed that the allegations in the FIR were serious, but expressed its
anguish that Jaiswal’s petition, which was similar to CJAR’s earlier one, was
not tagged with it. The fact that court No.2 directed its hearing by a
constitution bench of the first five judges on November 9 was also seen as a
sign that the petitioners and court No.2 had no trust in court No. 6. After
expressing its pain, however, the bench took note of the constitution bench
hearing on the second petition, scheduled on November 13, and said: “Let the
matter be placed before the chief justice for passing appropriate orders for
listing this matter.”
It is these two orders
that the chief justice found conflicting with one another. A bare reading of
Sikri-Bhushan bench’s order, however, would suggest that it would not be averse
to tagging the CJAR petition along with Kamini Jaiswal’s so that both could be
heard by the constitution bench which was scheduled to meet on November 13. It
only wanted the administrative decision of listing it before that bench to be
taken by the chief justice. As Justice Arun Mishra’s judgment on Tuesday
reveals, it is this non-existent disagreement between the two coordinate
benches which became the basis for convening the constitution bench at a short
notice. November 10 was the last working day before the scheduled constitution
bench’s hearing on November 13.
Utkarsh Srivastava - SC is creating a dangerous aura of arrogant infallibility around itself
The matter that
is commonly becoming known as the 'judges bribery case' took another turn
on Tuesday as a three-judge bench dismissed Kamini Jaiswal's petition asking for an SIT
probe into allegations of bribery against judges in the apex court. The
court started its judgment on Tuesday with the words, "The
facts are disturbing in the instant case." And they most certainly are.
Unfortunately, that's not all that's disturbing. The Supreme Court has refused
to look at the extraordinary circumstances surrounding the matter and
has given convention higher standing than the essential principle of
"no one can be a judge in their own cause"
Recusal cannot be
asked on ground of conflict of interest: Even without proper investigations into the matter, the court is
convinced there is no conflict of interest in this case. It then takes the
issue one step further when it says that "recusal of a judge cannot be
asked on the ground of conflict of interest". It also settled the legal position that the Chief Justice of
India (CJI) would assign a case to a bench even if there were
allegations against him in the matter. The brashness of
these directions is stunning. While the CJI has indeed not been named
in the FIR, the fact that he is associated with the case means that
letting him pick the judges would allow fingers to be pointed and rumours to
spread.
This can easily be remedied by taking the CJI out of the process.
Further, while the CJI has powers mostly on the administrative side (his
judicial powers are the same as the other judges), being the senior-most judge
means that other judges would rarely assert themselves against him. All
this could cause the faith of the people in the judiciary to dip, something the
apex court has been very keen on avoiding… read more:
see also
