Kesavananda to Kamini – the pattern is complete; Now who will judge the judges?

Two years ago, I had penned a piece on the reluctance of the Supreme Court of India to judge its own ilk. From the petition against former Chief Justice of India KG Balakrishnan, to allegations of sexual harassment by Supreme Court judges, all cases were either given a decent burial, or have been pending before the Supreme Court for a very long time.

The main prayer in the PIL against Justice Balakrishnan to remove him from the post of NHRC Chairperson was rendered infructuous two years ago when he retired. Likewise, the petition to transfer the trial of Justice Swatanter Kumar out of Delhi has also been pending in the Supreme Court since 2014.

This burgeoning list was further expanded when a new petition was filed by one Mr. Justice X challenging the manner of functioning of a Committee constituted by the Vice President of India to look into a prayer for his impeachment. This matter has now been sent to a 3-judge Bench.

And the list keeps growing.

In a rather verbose but controversial judgment, the Supreme Court on November 14 dismissed a petition filed by advocate Kamini Jaiswal seeking an SIT probe into a matter relating to permission for setting up of a medical college.

Jaiswal’s petition stemmed from an FIR filed by the CBI in which there were allegations of an attempt to influence high public functionaries for settling a case in the Supreme Court. This particular case was heard by a Bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud.

Unprecedented events in the Court followed, as the petitioners demanded the recusal of two judges – CJI Dipak Misra and Justice AM Khanwilkar – from hearing the case alleging conflict of interest, since the two judges were part of the Bench which had heard the medical college matter.

Interestingly, Jaiswal’s plea was identical to a petition filed by CJAR (which had been listed before another Bench). This would lead to allegations of forum shopping for attempting to bypass the CJI’s prerogative to list cases. The Court noted the same while dismissing the petition, and also rebuked the petitioners for contemptuous conduct.

But the judgment seems to be more than that.

The 3-judge Bench of the Court has effectively ruled that even when a petition involves a conflict of interest with respect to the Chief Justice of India, he is not precluded from exercising administrative functions in respect of that petition. In doing so, the Court has placed reliance on its own judgment delivered on Friday last week in the CJAR case and a 1996 judgment in DC Saxena case.

“As a matter of fact, this controversy has been set at rest that even when there is an allegation against Hon’ble Chief Justice of India, it is he, who has to assign the case to a Bench, as considered appropriate by him. This has not only been settled by the Constitution Bench in CJAR (supra) vide aforesaid order dated 10.11.2017 but, this question also arose in the matter of Dr. D C Saxena v. Chief Justice of India (1996) 5 SCC 216, decided by a 3-Judge Bench of this Court wherein, the petitioner Dr. D C Saxena, filed a public interest litigation which was heard by Hon’ble Chief Justice of India and two other Judges…

…This Court has laid down that when imputations were made against the Chief Justice, it is the prerogative of the Chief Justice to constitute the Benches and assign judicial business, and it would not hinge on the whim of the litigant.”

And the Court has not stopped at that. It has gone one step further and held that when there is an allegation/insinuation against a judge, instead of recusing from hearing that case, he should take it up and hear it on the judicial side. Thus, the request for recusal of CJI Dipak Misra and Justice AM Khanwilkar from exercising judicial function with respect to the case was also turned down. The judgment reads,

“In case Judge is hearing a matter and if he comes to know that any party is unscrupulously trying to influence the decision making or indulging in malpractices, it is incumbent upon the Judge to take cognizance of such a matter under Contempt of Courts Act and to deal with and punish such person in accordance with law as that is not the conflict of interest but the purpose for which the entire system exists.

Such things cannot be ignored and recusal of a Judge cannot be asked on the ground of conflict of interest, it would be the saddest day for the judicial system of this country to ignore such aspects on the unfounded allegations and materials. It was highly improper for the petitioner to allege conflict of interest in the petition filed that the Hon’ble Chief Justice of India should not hear on judicial side or allocate the matter on the administrative side…”

The judgment further states,

“Though it was submitted that there is no allegation against Justice AM Khanwilkar but since he decided the matter of medical college with respect to which FIR has been lodged, he should recuse. In our opinion, rather it is the duty of the Bench to take up such matter firmly; such unscrupulous allegations and insinuations cannot be allowed to be hurled by oral prayer made on behalf of the petitioner for recusal. This is simply deprecated and we find that it is another attempt to bring the system in disrepute, casting of unwarranted aspersions tantamounts to seriously jeopardizing the independence of the judiciary.”

This decision by the two judges to sit on the Bench – CJI Dipak Misra in the Constitution Bench and Justice Khanwilkar in the Constitution Bench and 3-judge Bench – is, in fact, a completion of a pattern wherein the Supreme Court has granted itself the power to go against even the basic tenets of our legal system.

Right from the famed judgment in Kesavananda Bharati through Second Judges case to the NJAC case, this pattern has been evolving. The events of the past week, along with the Kamini Jaiswal judgment, seems to have given a closure to this pattern.

As far back as 1973, the Supreme Court appropriated to itself the right to strike down the will of the people if it went against an unknown, undefined and open-ended Basic Structure of the Constitution. The Court pulls out the doctrine at will when it needs to strike down what it considers repellent to this undefined Basic Structure.

The Second Judges case was one of its kind when a blatantly obvious Constitutional provision was interpreted in a manner not contemplated by the Constitution makers, thereby appropriating to itself the right to appoint themselves. The bid by the current government to overturn the same by way of Constitutional amendment was scuttled by the Court, again by using the all-pervading Basic Structure.

There have also been multiple occasions when the Supreme Court has refused to entertain petitions against retired judges or brother judges.

In February 2013, a Bench of Justices Aftab Alam and Ranjana Prakash Desai not only dismissed a petition challenging the appointment of Justice NV Ramana (now a sitting Supreme Court judge) as a judge of the Andhra Pradesh High Court, but also imposed a cost of Rs. 50,000 each on the two petitioners – one of them a Senior Advocate.

Interestingly, the Court in its judgment categorically stated that the allegation made by the petitioners, while true, cannot be a ground for removal of Justice Ramana, as the Collegium and the judge himself were unaware of the pending criminal charge against him. Be that as it may, the Court found it prudent to impose costs on the two advocates because they believed that “the real intent of the petitioners” was to malign Justice Ramana.

On February 22, 2014, the Supreme Court refused to hear a petition challenging allotment of land to some of the sitting judges of the Odisha and Gujarat High Courts. A Bench presided by former Chief Justice of India HL Dattu was adamant not to admit the plea and insisted that the petitioner approach the High Court. This, despite the vehement plea by advocate Prashant Bhushan that since the land had been allotted to High Court judges, they would not be in a position to hear the case without bias.

Then, in 2015, Justice Dipak Misra and Senior Advocate Shanti Bhushan were at loggerheads as the latter argued for admitting a petition filed by his son seeking registration of an FIR against retired Supreme Court judge Justice CK Prasad. Justice Misra sternly observed that if the petition is admitted, “it will open a dangerous door in our democracy”, while Bhushan argued that not entertaining the petition would be a “blot on the credibility of the institution”. The petition was dismissed on the ground of want of locus.

However, one consolation in all these cases was that none of them were heard by judges who were themselves personally interested in the matter. Nemo judex in causa sua, or no person shall be a judge in his own cause, one of the basic principles of natural justice, was not violated.

Until now.

The Supreme Court has now chosen to brush aside this cardinal principle in its judgment in Kamini Jaiswal’s case by putting its stamp of approval on CJI Dipak Misra exercising administrative function and Justice Khanwilkar and CJI Dipak Misra exercising judicial function when the allegations in the CBI’s FIR pertained to a case which was being heard by them.

From sitting in judgment over law and Constitutional amendments using an open-ended ambiguous doctrine, to appointing judges, and dismissing cases against brother judges, it has now come to ‘judging their own cause’, all in the name of protection of ‘greatness of institution’ and independence of judiciary.

The law laid down in Kamini Jaiswal has given a grotesque interpretation to one of the most fundamental principles of law. That it has come from the apex court of the country makes it all the more disturbing.

When a former judge of the Court was contacted to find out if he would be interested in speaking on the whole episode, he squarely turned it down saying that “they are all his colleagues and he stands with the institution”.

The same sentiment was shared by former Supreme Court judge Justice CK Thakker, who considers himself a “soldier of the court”. One can argue that this judicial ‘omerta’ of sorts does more harm than good to an institution considered to be the last bastion of justice.

This begs the question, who will judge the judges? If only the judges of the Supreme Court would realise that the institution has to exist and outlive the individuals, the journey towards redemption would be less arduous.

Murali Krishnan is Associate Editor at Bar & Bench. He tweets @legaljournalist.