There are two views on what happened in the supreme court on November 10. Some media reports described it as unprecedented and high-voltage drama. A senior advocate, however, points out it was neither unprecedented nor was the crescendo of arguments that marked the hearing of the highest voltage.

There have been numerous instances in the history of the higher judiciary in India when lawyers have walked out of the court to express their displeasure with milords. There have been recorded cases of milords expressing deep anguish over the “attack on the institution” and issuing contempt notices to petitioners.

So, what was unprecedented? Perhaps the subtext of the entire episode.

Simply put, the showdown was over the question of who is the ‘master of the roster’ and has the prerogative to constitute benches. It was a question that came up when a two-judge bench headed by justice J Chelameswar passed an order to set up a larger bench to hear a petition.

To go beyond the simple explanation, the order of the events needs to be made clear.

The petition in question was seeking a probe by a special investigation team into allegations of corruption involving a medical college in Lucknow and retired Orissa high court judge IM Quddusi. In this alleged scam, probed by the Central Bureau of Investigation (CBI), former members of the higher judiciary allegedly took bribes to manipulate court orders in favour of medical colleges that had failed to get official registration from the Medical Council of India (MCI).

The Campaign for Judicial Accountability and Reforms (CJAR), represented by advocate Prashant Bhushan, moved a petition
seeking a court-monitored probe in this matter.

On November 8, the matter was mentioned in front of a bench of justice Chelameswar seeking listing of the matter. It was then listed for November 10. However, on November 8 itself, the supreme court registry informed Prashant Bhushan that the chief justice of India (CJI) had placed the petition before a bench of justices AK Sikri and Ashok Bhushan.

A day later, on November 9, advocate Kamini Jaiswal also moved a similar petition which was mentioned before justice Chelameswar. A bench comprising justices Chelameswar and Abdul Nazeer heard the new petition and considering “certain allegations made in the [CBI] FIR to be disturbing” as well as “pertain[ing] to the functioning of this court”, it passed an order directing its listing on November 13 before a constitution bench of the five senior-most judges.

The bench also made an interim order regarding the custody of the case diary and all the materials collected by the CBI during the course of the investigation before the constitution bench.

When Prashant Bhushan’s petition came up before the bench comprising justices Sikri and Ashok Bhushan on November 10, the stage for the big drama was set. Justice Sikri expressed his displeasure over the filing of the second petition “since it showed lack of confidence in this bench”. Prashant Bhushan then requested the bench that his matter too should be tagged with Jaiswal’s petition. The bench, however, decided to refer the matter to the CJI for passing appropriate orders.

The same day, meanwhile, a constitution bench comprising the CJI and justices RK Agarwal, Arun Mishra, Amitava Roy and AM Khanwilkar was formed to hear the matter (two of the original seven members had recused themselves).

Following heated arguments between the bench and the bar, the bench passed an order stating in clear terms that neither a two-judge bench nor a three-judge bench can direct the chief justice to constitute a specific bench.

While adding that it is “needless to emphasise that no judge can take up a matter on its own unless allocated by the CJI as the CJI is master of the court”, the constitution bench annulled the order of the two-judge bench to form a bench to hear Prashant Bhushan’s plea.

The high-decibel debate that followed was centred around three aspects of this entire episode: (a) whether the petitioners were involved in what is called ‘forum shopping’ and ‘bench hunting’ (that is, getting the case heard by those judges who’d deliver a favourable judgment), (b) whether the CJI, by declaring himself ‘master of the court’, asserted more power than what is constitutionally mandated, and (c) whether justice Chelameswar was wrong in passing an order to form a constitution bench.

However, two important questions that need to be asked here are:

(1) If at all the petitioners were resorting to ‘forum shopping’ or ‘bench hunting’ what was the intention? Was it to get a favourable decision or, more importantly, to avoid an unfavourable one?

(2) Was it meant to ensure that the most important dictum of jurisprudence, ‘Nemo judex in causa sua’ (‘no one should be a judge in his/her own cause’) was followed.

To put things in perspective, the petitioners wanted any bench hearing the case to exclude the CJI, who had heard cases related to the Medical Council of India earlier this year. The petitioners believed there would be a conflict of interest if Justice Misra was hearing the case.

While merit of their argument is debatable, what seems to have prompted many to mark the episode as the “saddest day in the history Indian judiciary” was something that one of the petitioners, Prashant Bhushan, wrote in one his tweets.

He tweeted: “A case of serious impropriety has been trivialised by making it look like a battle between Courts 1&2; thereby losing yet another opportunity to demonstrate the extraordinary mettle and character that the judges of the Supreme Court are expected to possess”.

In two other tweets he commented: “CBI registers FIR saying that a medical college has conspired & collected money to pay bribes to SC for favourable Judgment. SC bench says there’s no allegation in FIR against judges & PIL filed for SIT monitored by top judges of Court is frivolous & amounts to contempt of court.”

Also, “CBI brought 6 trunks of material collected in medical college bribery case. Had many recorded conversations with middleman Biswanath Agarwal from Orissa saying he will get the work done from ‘Captain who has all India jurisdiction’. SC bench dismissed petition w/o looking at it!”

True, any allegation against milords is bound to create chaos as it directly tarnishes the image of judiciary and scandalises the great institution. Yes, the baby should not be thrown with the bathwater, but if the bathwater is not thrown away, it can create a stink. Is the judiciary doing enough to tackle the cases of judicial corruption?

Senior advocate Indira Jaising answers with a categorical ‘no’. “Obviously not, the recent petition seeking an SIT to investigate into an FIR naming a retired judge for conspiracy under the Prevention of Corruption Act with ‘unnamed public servants’ is an example of how the issue is avoided. The court should have been concerned about the suspicion cast on the supreme court itself.” 

Asked to what extent the higher judiciary has helped in evolving institutional mechanisms to check corruption, Jaising says, “None, except the [discussions] in house which is not appropriate. It is time for a binding law on judicial standards and an independent complaints mechanism. Impeachment is not the only answer nor is it an effective one.”

Corruption in the higher judiciary is not a new phenomenon and the way it has dealt with it instils little confidence among common people. And this is a fact acknowledged by the supreme court itself!

“The faith of the common man in the country is shaken to the core by such shocking and outrageous orders as the kind that have been passed by the single judge. ‘Something is rotten in the State of Denmark,’ said Shakespeare in Hamlet, and it can similarly be said that something is rotten in the Allahabad High Court, as this case illustrates,” observed a bench of justices Markandey Katju and Gyan Sudha Misra in 2010, while passing an order that indicted a judge of the Allahabad high court for passing orders on “extraneous considerations”.

Their angst at the state of affairs in the higher judiciary was not new. In 2007 in an article titled ‘Majesty of the Judiciary’ published in The Asian Age, justice VR Krishna Iyer wrote of “corruption and decline now creeping into the vitals of the Higher Courts and the urgent need to arrest this trend”.

The adage ‘A good lawyer knows the law but a great lawyer knows the judge’ might be used in humorous fashion but it depicts a sad reality. Corruption in higher judiciary has been an open secret. However, reporting, writing or talking about it can be fraught with grave consequences.

Beware of contempt

The spectre of contempt always haunts those who try to highlight any case of judicial corruption. Eminent jurist Fali Nariman, in his book The State of The Nation, writes, “The sin of corruption is not confined to politicians, ministers and bureaucrats. In India it has infiltrated into all organs of the state – with one difference: whereas the media, print and electronic, is not constrained when questioning or publicising wrongdoing amongst public officials (expect for the sanctions imposed by the general law of defamation), the same is not the case with regard to questioning alleged lapses of good conduct amongst the judges in the higher judiciary. These judges enjoy almost complete protection under the law of contempt: laws that are administered and interpreted solely and finally by the judges themselves”.

The hanging sword of contempt arguably acts as the biggest hurdle in exposing cases of judicial corruption. Jaising, however, maintains, “It does but it is ineffective, there are people who don’t fear contempt when they are convinced of what they are saying. Yet, the law must not be used in the manner it is being used – as a threat of action against responsible lawyers. Allegations, no matter how unsubstantiated, must at least be taken seriously, before they are rejected out of hand.”

No speedy trials

On August 13, 2008, a packet containing Rs 15 lakh was delivered at the residence of Nirmaljit Kaur, a sitting judge of the Punjab & Haryana high court. In the course of preliminary investigation, it was found that the packet was delivered there by mistake, and it was intended for somebody else with a similar name, justice Nirmal Yadav, who was also a sitting judge of the same high court.

Initially, Chandigarh police registered an FIR on August 16, 2008, and later the case was transferred to the CBI. Three years after the FIR, the CBI charge-sheeted justice Yadav – who was then a judge in the Uttarakhand high court – on March 4, 2011, incidentally the day of her retirement.

Then it took two years for the trial court to order the framing of the charges. On July 31, 2013, the trial court ordered the framing of charges against justice Yadav and it took more than six months for the special CBI court to do so.

Close to four years later, the accused judge is retired, prime accused advocate Sanjiv Bansal is dead, many witnesses have
turned hostile and the ‘cash-at-judge’s-door’ as the scam came to be known, seems to have met the same fate as other cases of alleged corruption in the judiciary.

 

Signs of the times

Some cases of alleged corruption in higher judiciary

CV Nagarjuna Reddy
Sixty-one Rajya Sabha members moved a petition seeking the proceeding to remove justice CV Nagarjuna Reddy of the Andhra Pradesh/Telangana high court in 2016. The allegations made against him included disproportionate income and atrocities against members of scheduled castes. Again, in May 2017, 54 Rajya Sabha members moved a petition for his removal for alleged interference in the judicial process and hurling casteist abuses against a junior dalit judge. On both occasions, the bid to impeach him failed.

Soumitra Sen
The former Calcutta high court judge was found guilty of misappropriating '33.23 lakh under his custody as a court-appointed receiver in the capacity as a lawyer, and misrepresenting facts before a Kolkata court in a 1983 case. The Rajya Sabha had already passed the motion for his impeachment when he resigned from his post.

PD Dinakaran
The former chief justice of the Sikkim high court was accused of amassing huge assets and land and his hometown, Arakkonam, which were disproportionate to his known income and more than what was fixed by the Tamil Nadu Land reforms. The Rajya Sabha chairman had set up a judicial panel to look into allegations of corruption, but he resigned in July 2011, before impeachment proceedings could be initiated.

V Ramaswami
The first supreme court judge against who impeachment proceedings were initiated was accused of incurring “ostentatious expenditure” on his official residence during his tenure as chief justice of the Punjab and Haryana high court. The motion for his removal was put on voting in 1993 but was defeated in Lok Sabha.

Nirmal Yadav
The CBI charge-sheeted the former judge of Punjab & Haryana high court in a corruption case. A bag containing '15 lakh was delivered at the residence of justice Nirmaljit Kaur of the same court in 2008 – by mistake; it was allegedly meant for Nirmal Yadav. Now retired, she is facing trial.

Shamit Mukherjee
The CBI arrested this Delhi high court judge in 2003 for his alleged role in a multi-crore land scam involving the DDA. In 2008, a Delhi court framed charges against Mukherjee and four others.

 

Ironically, it is the same judiciary that talks about setting up of special courts to exclusively try and expedite criminal cases involving politicians.

The reason why none of the cases of judicial corruption meet the desired results is obvious, says Jaising, “Judges are judges in their own cause. There must be independent investigators.”

Equally disturbing is the astonishing ease with which the cases of judicial corruption are overlooked and even if exposed, the results can hardly be termed as just.

Shamit Mukherjee, who was a judge of the Delhi high court, was arrested by the CBI in 2003 for his alleged role in a multi-crore land scam involving the Delhi Development Authority (DDA). In 2008, a Delhi court framed charges against Mukherjee and four others. The extent of his wrongdoings can be gauged from the reply that CBI filed opposing his bail plea. It stated, “The case of the prosecution, in brief, is as follows: One Dharamvir Khattar (for short, ‘DVK’), a businessman, was having close relationship with petitioner [Shamit Mukherjee] and Subhash Sharma, IAS, vice-chairman, Delhi Development Authority (for short ‘VC-DDA’); the petitioner used to enjoy his hospitality in terms of wine and women and DVK used to act as a conduit for the parties, who wanted their cases pending in petitioner’s court to be settled favourably.”

Sadly, the judgment is awaited even 14 years later.

The corruption cases against former Calcutta high court judge Soumitra Sen and former Sikkim high court chief justice PD Dinakaran go on to show that it is only when impeachment becomes an inevitability that the accused judge gives up his chair – without facing the heat of the law.

Moral question

The higher judiciary has not only been marred by cases of financial corruption but also of moral impropriety. And in these cases too, it is the ‘integrity of the institution’, power of defamation and contempt come in the way of the delivery of justice.

What sense of impunity can allow a former judge accused of sexual harassment of a law intern to remain on the post of chairman of a state human rights commission, till indicted by a supreme court-appointed committee and till the union cabinet decided to move a presidential reference to the supreme court seeking his removal?

How can any case of corruption in the judiciary be highlighted when the former supreme court judge accused of sexual harassment is represented by 22 senior-most lawyers of the Delhi high court, many of whom are now additional solicitors general, and secures an order from the high court restraining the media from reporting allegations against him?

The Bar as watchdog

Nariman, in his The State of the Nation, writes, “The role of media in India in highlighting judicial corruption in the higher judiciary (or some other wrongdoing of one of its members) has drawn a blank. We have to try different measures to root out ‘judicial corruption’ (or rather, root out manifest perceptions of it); first of all, we must try to shame the (few) members. How do we do this? It is the lawyers who have to do it, not with a view of exposing ‘skeletons in the cupboards’ but for the good of the institution (the judiciary) and for the cleansing effect that transparent always have.”

This raises another important question: Has the Bar done enough to highlight the issue. “Not in the least. They have been sycophantic and corrupted the system,” believes Jaising.

Of course, there are honourable exceptions.

Four years ago the Punjab and Haryana high court collegium, comprising chief justice AK Sikri and justices Jasbir Singh and SK Mittal, recommended the names of eight advocates for elevation to the high court. They were: Manisha Gandhi (daughter of former CJI AS Anand), Girish Agnihotri (son of former justice MR Agnihotri), Vinod Ghai, BS Rana (former juniors of justice SK Mittal), Gurminder Singh and Raj Karan Singh Brar (former juniors of justice Jasbir Singh), Arun Palli (son of former justice PK Palli) and HS Sidhu (additional advocate-general in Punjab).

Soon, around 1,000 advocates sent in a signed memorandum to the president, the prime minister and the chief justice of India, raising serious questions about the collegium’s choice of name. The memorandum stated, “Independence and integrity of Indian judiciary has been put at stake by the collegium of Punjab and Haryana high court while recommending the names of advocates for elevation as judges. The reason for recommending such names puts a big question mark on the decision of the collegium which seems to have based (them) on considerations other than merit and integrity of the candidate… It has now become a matter of practice and convenience to recommend the names of those advocates who are the sons, daughters, relatives and juniors of the former judges and chief justices.”

The memorandum also pointed out the fact that Gandhi’s “sole qualification is that she is daughter of former CJI AS Anand as she has appeared in only 36 cases in the year of 2012 and among them two were CRMs [Criminal Miscellaneous Petition], eight were CWPs [Civil Writ Petition] and other 26 were company appeals”.

It further added, “In 2013 she appeared only in seven company appeals, till today. Recently she was appointed additional advocate-general of the Punjab and Haryana high court so that she could be considered for elevation by the collegium.”
Also, the memorandum highlighted the fact that justice SK Mittal was part of the high court collegium and his recommendation of persons directly linked to him raised serious question of conflict of interest and propriety.

The supreme court rejected six recommendations and returned the names of Palli and Sidhu for reconsideration.

That was the victory of the Bar.

That could only happen because the supreme court considered them worthy enough to take their objections into consideration. But then, when a noted senior lawyer of integrity and repute is not considered even “worth of contempt” by the apex court, much cannot be expected from the Bar.

“A court which is final and unreviewable needs more careful scrutiny than any other. Unreviewable power is the most likely to self-indulge itself and the least likely to engage in dispassionate self-analysis… In a country like ours, no public institution, or the people who operate it, can be above public debate,” said Justice VR Krishna Iyer, quoting justice Warren E Burger, chief justice of the US supreme court.

Sadly, in the latest episode a crucial opportunity was lost for the “careful scrutiny” and “dispassionate self-analysis” of all that is leading to the diminishing stature and fading halo of a great institution; that supreme court has time and again proved itself to be

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(The article appears in the December 15, 2017 issue)