Arun Shourie on why his faith in Indian judiciary has been broken
The rulers were not just apprehensive, they were mortally apprehensive
The Campaign for Judicial Accountability and Reforms — the CJAR — had received information about the CBI’s findings, the contents of the tapped conversations as well as about the fate of their request to the Chief Justice for taking the next steps against Justice Shukla of the Allahabad High Court.
Accordingly, on November 6, 2017, the CJAR filed a writ in the Supreme Court. The gravamen of the writ was that leaving the matter in the hands of the CBI would endanger the independence of the judiciary: the political executive would certainly have access to what the CBI uncovered, and it could use the information to pressure individual judges; hence the prayer that a Special Investigation Team be formed under a retired Chief Justice of the Supreme Court to investigate the allegations which had been recorded by the CBI in the FIR, and the evidence that was reproduced in its preliminary enquiry. On 8 November, as the Chief Justice was sitting in a Constitution Bench, in accordance with settled convention, Prashant Bhushan mentioned the matter in Court Number 2 before the bench presided over by the judge next in seniority, Justice J Chelameswar. Justice Chelameswar and his companion judge, Justice Abdul Nazeer, directed that the matter be listed before them on November 10. Later, on the 8th itself, the registry of the Supreme Court informed Prashant Bhushan that the Chief Justice had passed an order that the writ be listed before another bench.
On November 9, another advocate, Kamini Jaiswal, filed a writ along the same lines. It too was mentioned in Court 2. Justices Chelameswar and Nazeer directed that the matter be listed before them at 12.45pm. The Constitution Bench in which the Chief Justice was sitting normally adjourns for lunch around 12.45 or 1pm. The Chief Justice adjourned it unexpectedly at noon, saying that he had to attend to some domestic business. In Court Number 2, after hearing submissions, Justices Chelameswar and Nazeer directed that, given the seriousness of the matter, Kamini Jaiswal’s writ be listed before a bench of the five senior-most judges of the court on November 13.
The next day, November 10, 2017, the first writ which the Chief Justice had in a sense taken away from the bench of Justices Chelameswar and Nazeer came up before a bench consisting of Justices Sikri and Ashok Bhushan. Prashant informed them that the bench of Justices Chelameswar and Nazeer had already directed that the writ of Kamini Jaiswal, which sought reliefs similar to the ones sought by Prashant’s writ, be placed before a bench of the five senior-most judges. The natural thing would have been to tag Prashant’s writ to that of Kamini Jaiswal’s so that both would be heard together by that larger bench. Instead, Justices Sikri and Bhushan directed that the writ be placed before the Chief Justice for directions.
With unheard-of promptness, on that very day, that is November 10, at 2.45 pm a notice was put up that the writ filed by the CJAR would come up for hearing at 3pm — that is, within fifteen minutes —before a seven-judge bench presided over by the Chief Justice. When lawyers rushed to Court Number 1, they found two things. The names of two of the seven judges and the chairs meant for them —Justices Sikri and Bhushan who had heard the matter earlier in the day — were being hurriedly removed. And, second, a host of lawyers — in particular, office bearers of advocates’ associations whom we shall encounter again — were crowded in the forefront. Prashant Bhushan who was representing the CJAR —the writ which was to be heard was the one filed by it — was shouted out by the advocates who were not even party to the proceedings. In raised voices they kept saying that the order of Justices Chelameswer and Nazeer in regard to Kamini Jaiswal’s writ was bad in law. The Chief Justice let them have their say. Soon enough, the bench handed down a decision: the Chief Justice was the sole master of the roster, no one else could constitute benches. In short, even though Jaiswal’s writ was not even listed before them, the Chief Justice and his companion judges struck down the order of Justice Chelameswar and Justice Nazeer that Jaiswal’s writ be heard by a bench consisting of the five senior-most Judges. Instead, this hurriedly assembled bench decided that the writ would be heard by a bench that the Chief Justice would constitute.
On November 14, Kamini Jaiswal’s writ came up before a three-judge bench constituted by the Chief Justice. The judges dismissed the writ, holding that her plea — that the matter relating to the CBI’s findings and the imperative need to constitute a Special Investigation Team should not be heard by a bench of which the Chief Justice was a member — was bad in law. Furthermore, that the concerns she had raised regarding the FIR — about bribes being paid for securing favourable orders — were wholly without merit, wholly unethical and unwarranted, and were just intended to bring the Supreme Court into disrepute.
On November 27, the same three judges heard the writ of the CJAR. On December 1, they dismissed the writ, holding it to be “wholly contemptuous”, “scandalous” and unwarranted. They imposed a penalty of Rs 25 lakh on the CJAR for pursuing the writ even after Kamini Jaiswal’s writ had been dismissed.
Naturally, the CJAR filed a petition to review the order. The facts that it had stated in its writ were wholly based on the conversations that the CBI had recorded and the FIR which it had registered. The matter to which it had drawn attention was manifestly of the highest public importance, not the least for the esteem of the Supreme Court itself. The judges had held that the CJAR had scandalised the court by stating that judges of the Supreme Court had been named in the writ: in fact, the writ had not stated this at all. The judges had said, “We wonder as to what favourable orders have been passed” in the interest of the trust: but these could be easily seen, and the CJAR listed them order by order. To hold that, as the writ of Kamini Jaiswal had been dismissed, the effort of CJAR to pursue its writ was contempt was unwarranted: earlier, in spite of a specific request to that effect, benches of the same court had not agreed to club them together; moreover, a petitioner is fully within his rights to present arguments in favour of his writ — it may well be, and this is just one consideration, that vital arguments may not have been satisfactorily presented when the other writ was heard; in any case, the courts, including the Supreme Court, do change their mind … The penalty of Rs 25 lakh had been levied without hearing the CJAR at all: indeed, during the hearings, at no time was the counsel told that he was opening himself for such heavy penalty; furthermore, no penalty had been imposed on Kamini Jaiswal even though, and on the saying of the judges themselves, the two writs were similar. As for requesting that the matter be heard by a bench of which the Chief Justice was not a member, the fact was that the Chief Justice had presided over every bench that had heard the medical college matter — the doings of whose sponsors, pushers and middlemen were the subject of the CBI’s FIR; it was a well-settled principle that no one could be a judge in his own cause…
Soon, on January 15, 2018, the CJAR filed a formal complaint against the Chief Justice with the five senior-most judges. The complaint was one of the most persuasive and one of the most courageous documents that I had read in a long, long time. It set out various acts of commission and omission. These included, of course, a list of the ways that the matter relating to the Prasad Education Trust had been handled. It set out the facts that the CBI had uncovered during its investigations and raids. It set out the tapped conversations. It made new points: the order by which the decision of the Chelameswer–Nazeer Bench had been nullified, for instance, seemed to have been antedated. There was also the question about the way land had been acquired by Mr Misra, as he then was, several years earlier in Orissa by filing an affidavit which an inquiry by the officials concerned had held to be fraudulent; and how, in spite of this, Mr Misra had held on to the land for twenty seven years, that is, literally till the time he became a judge of the Supreme Court. The complaint requested that an internal inquiry be instituted against him.
Clearly, judges too are subject to Newton’s Third Law: “When one body exerts a force on a second body, the second body simultaneously exerts a force equal in magnitude and opposite in direction on the first body.”
“But can I end this account on this hopeful note?” I wondered. I asked Prashant Bhushan what course his petition for review of the contempt is to follow. It would be placed before the same three judges who had held that his writ was “wholly contemptuous”, “scandalous” and unwarranted, he explained, and who had imposed that fine of Rs 25 lakh. And there would be no open hearing, Prashant would not have any chance to present the facts or law before them; the judges would merely discuss it among themselves, in private. If they reconfirmed what they had held, he would have the opportunity to file a curative petition. And who would hear that? The Chief Justice, the three senior-most judges and the three judges who imposed the penalty in the first instance. Four to three! Kyaa karen, kahaan jaayen…
Bane hain ahl-e-havas muddai bhi munsif bhi Kise vakil karen kis se munsifi chahen…
All this was bad enough. But soon the country was jolted into realising that there was much worse, indeed that practices that would prove disastrous for the institution and, therefore, for the country, had come to be adopted. They transcended individual judges, they struck at the very heart of the Supreme Court itself.
Dilutions and their consequences
Public disclosure by the senior-most judges of the Supreme Court in January 2018 gave us a glimpse of what has been happening inside the court, and it awakened us to another source of mischief that had crept back in. That like the rest of us, judges have predilections is well-known, and in a sense quite natural: to take an example from far away, some judges of the US Supreme Court have been “strict constructionists”—you had to prove everything to their satisfaction from the plain words of the Constitution itself; others, equally distinguished, were more expansive in their interpretations. In India also, especially from the 1970s onwards, while most judges would go back to the plain text of the Constitution, some felt it their duty to read deeper and wider meanings into the text — witness the way the ambit of Article 21 was expanded in the ensuing years. Those who saw themselves as “progressive” felt that they had not just the right but a mandate to change the way the Constitution had been interpreted: one judge of the Supreme Court, Justice DA Desai, as we saw, went so far as to proclaim that he had joined the system so as to wreck it from within. These differences in perspective translated into specifics. Some judges were almost self-consciously pro-labour — “Bonus is a deferred wage”, and the rest — others were conservative. Gautam Bhatia reminded us recently that in the first decade of the new millennium, one bench of the Supreme Court confirmed almost all the death sentences that came to it in appeal while another bench commuted almost all the death sentences. Therefore, the impression got around that the outcome would not depend so much on the facts or even the law as on the bench before which one’s case landed. The lemma was ineluctable: many a litigant did whatever he could to deflect his case to one bench and keep it away from another. The registry of the court and the Chief Justice’s office became the focus of special deference and attention.
To counter this practice, methods and conventions developed. Benches would be formed subject-wise — the background of the judge, if he had acquired special competence in a particular branch of law, for instance, would naturally be one of the considerations in constituting the subject-wise benches. As cases came up, they would in the first instance be channelled to the set of benches that had been assigned the general area of law in which the case fell and, in the second step, within that set of benches the case would be assigned to a particular bench at random, “by the computer” as the practice came to be known.
Other conventions also evolved. Sensitive cases — like those involving interpretations of the Constitution or those involving holders of high office — would be assigned to larger benches, and these benches would be manned by senior judges. Similarly, once some judges had begun hearing a case, it would not be snatched away from them and assigned to some other set. If a bench maintained that the case ought to be heard by a larger bench, it would be referred to a larger bench. And those judges who had been hearing the case in the first instance would be included in the larger bench. Decisions handed down by larger benches would be adhered to as precedents by benches consisting of fewer judges. Smaller benches would not reopen a question that had been settled by a larger bench, certainly not merely by remarks made in passing: I remember well how in his judgment in the Minerva Mills case, Justice PN Bhagwati criticised the way in which deliberations and drafting in the case had proceeded — the remarks were clearly directed at the way the then Chief Justice, YV Chandrachud, had handled the matter; the executive seized upon these remarks and sought to use them to reopen cases of foundational importance. But such instances were rare, and, as happened in response to Minerva Mills, they always triggered a strong reaction within the legal community.
In recent years, the conventions have got diluted. Perhaps the convention that has suffered the most is that of smaller benches adhering to what larger benches have held. Apart from some viewing themselves as “progressive” and, therefore, having a duty, so to say, to change the direction of rulings, there is by now such a plethora of judgments, and so many of the judges have been so prolix, that it has become easier and easier to find the passage one requires for buttressing the position one has set out to affirm. This has compounded uncertainty.
But in the last two years, mere uncertainty has given way to apprehension that a pattern is afoot. Sensitive case after sensitive case — in particular, cases in which the current rulers have had a stake — have come to be assigned to a bench headed by a particular judge. Cases that were part-heard have been taken away from a set of judges and reassigned to others, often they have been taken over by the Chief Justice himself. Judges who had been hearing the case, and these cases again happened to be ones in which the current rulers had special interest — Justice Gogoi in the instance of the appointment of a director of the CBI, Justices Chelameswar and SA Bobde in the matter of Aadhaar — would suddenly find themselves pointedly excluded from the bench which would henceforth hear the part-heard case. When, say, a bench of two judges felt that the issues in a case were so important that it ought to be heard by a larger bench, the larger bench would indeed be constituted but, in the face of well-settled convention, the new bench would exclude the judges who had been hearing the case. Senior judges in particular came to be excluded from sensitive cases: the Sahara-Birla diaries case was assigned to a bench headed by Justice Arun Mishra overlooking ten benches that had judges who had more experience and seniority — this was a case about which the rulers were deeply apprehensive, for their names, along with those of several other prominent persons, figured as having received huge piles of monies; similarly, the Kalikho Pul case which we have encountered earlier was assigned to a bench overlooking eleven benches consisting of judges of higher seniority and experience. Worse, senior judges began to be conspicuously excluded even from constitutional cases — Justice AP Shah, the former Chief Justice of the Delhi High Court, gave a telling example: Chief Justice Dipak Misra had constituted constitutional benches in seven cases; each of these was headed by himself, and not one of the four senior-most judges figured in any one of them.
As such occurrences became more and more frequent, an alarming breach, reminiscent of the Minerva Mills episode, occurred in a case. A lawyer, RP Luthra, filed a petition in the Supreme Court asserting that he had been deprived of his right to be appointed as a judge of the Supreme Court. He said that as the Memorandum of Procedure for the appointment of judges had not been finalised, all appointments that had been made in the preceding months were void. The case was assigned to two judges. They rejected the claim of Luthra, but in the course of their judgment, they remarked that, indeed, the Memorandum of Procedure ought to be finalised without further delay.
But the matter had already been settled by a Constitution Bench of the Supreme Court. After that judgment, there had been detailed discussions in the collegium of the five senior-most judges. Justice Chelameswar and his senior colleagues wrote to the Chief Justice about this peculiar observation by the two judges to whom he had assigned Luthra’s case. Seven months have passed since the procedure that was finalised was sent to government, they pointed out. Its silence must be construed as consent, and the court must proceed on this basis.
No genius was required to see that the observation that had fallen from the two judges would be grabbed by the rulers to proclaim that, on the saying of the Supreme Court itself, the Memorandum of Procedure had not been finalised. The question would be reopened and the rulers would try a second time within two years to wrest a larger say in the selection of judges.
Two months passed and there was no response from the Chief Justice.
And then the case of Judge Loya’s death in which, as we have seen, the rulers were not just apprehensive, they were mortally apprehensive, was also assigned to Justice Arun Mishra, bypassing all the seniors: he may have been the most upright of judges but his family’s proximity to the ruling party was well known and, on the incessantly repeated maxim that justice must not only be done but be seen to be done, this seemed just too much to disregard as a mere coincidence. The deflection of this case became the last straw.
The judges were confronted by what Gandhiji used to call “an intolerable wrong”. They had tried other methods: they had written to the Chief Justice, they had met him. To no consequence. They were left with no alternative: they made known their misgivings to the people.
As this book goes to press, a small change has been made: the registry has put up on the Supreme Court website the list setting out which judges will hear cases relating to which subject. But clearly it is but a small change. No institutional mechanism for assigning cases has been put in place: the four judges had suggested that a committee of the Chief Justice and of those who are in line to be Chief Justices decide the benches—nothing like that has been instituted. The prerogative has been retained solely in the hands of the Chief Justice. The assignments of subjects to specified judges are “till further orders”. Furthermore, the order is to apply only to future cases. And, most significantly, all cases originating from PILs, all cases relating to elections and all cases relating to the appointment of constitutional functionaries — that is, precisely all cases in which the current rulers are most liable to have a stake —have been retained by the Chief Justice. The optimistic feel that the change is but the first step, that the Chief Justice will see the gravity of the matter and will eventually put in place institutional mechanisms. Others go by the record thus far — including the record of the executive.
(Excerpted with the permission of Harpercollins Publishers)