No One Should Be a Judge in his Own Cause

The real casualty in the drama that unfolded in the Supreme Court on Friday is public confidence in an institution that people still hold in high esteem.

From left to right: Justice J. Chelameswar, Chief Justice Dipak Misra, Justice A. Nazeer

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.

A brief history: A petition was filed before the Supreme Court challenging the decision to debar a medical college from admitting students. The matter was being heard by a bench headed by Chief Justice of India Dipak Misra. In an FIR lodged by the CBI, it was alleged that a retired high court judge, Justice I.M. Quddusi, had tried to use corrupt means to bring improper influence on the Supreme Court and affect the outcome of the case. A petition was filed by Kamini Jaiswal seeking the appointment of a Special Investigation Team headed by a former CJI to conduct an investigation into the matter. Jaiswal specifically asked that Justice Misra not deal with the petition either on the judicial or administrative side as he was one of the judges hearing the underlying petitions whose outcome Justice Quddusi had allegedly attempted to influence.

The standard practice in the Supreme Court is for urgent and important matters to be mentioned before the CJI for hearing. However, since the chief justice was presiding over a constitutional bench on the day the issue came up, the matter was mentioned before a bench comprising Justices Jasti Chelameswar and Abdul Nazeer. In light of the serious allegations, the judges posted the matter for hearing in the afternoon the same day, November 9.

Mid-way through the hearing, the judges received a note from  Chief Justice Dipak Misra (who had briefly retired to his chamber mid-way through his list) which suggested that urgent mentioning for same day hearing could only be heard by the chief justice or his designate. After considering the note, and upon hearing the submissions of Jaiswal’s counsel, Dushyant Dave, the judges referred the matter to a constitutional bench comprising five of the senior-most judges of the Supreme Court. The judges also appended to their order the note received from the chief justice – presumably to allow the constitution bench to consider the validity of the reference.

The very next day, the chief justice constituted a five-judge bench which, on paper, was intended to consider a closely related matter that had been referred to him, but which in effect considered the validity of the Chelameswar and Nazeer bench’s order. Chief Justice Misra’s decision to constitute the special bench appears to have been taken in some hurry as up until a few minutes before the hearing at 3 PM, it was unclear whether seven or five judges would hear the matter. During the hearing, this specially constituted five-judge bench (comprising the CJI himself and four other judges not drawn on the basis of seniority) clarified, following a 1998 Supreme Court decision rendered in the context of the chief justice of a high court, that the CJI was the “master of the court” and therefore was the only person entitled to decide on urgent hearing and the constitution of benches. The bench annulled the order passed by Justices Chelameswar and Nazeer and ordered that the petition be placed before the chief justice for listing before an appropriate bench. The question of conflict of interest – which resulted in the unfolding of the present series of events – went entirely unaddressed.

The legal propriety of the ruling of the five judges of the Supreme Court requires more careful consideration. However, what will remain a matter of concern is the privilege the chief justice now enjoys. The consequence of the court’s order is that any attempt to hear a matter – even one which involves potential impropriety on the part of the chief justice himself – can only succeed if the chief justice so permits. This means that the chief justice can potentially prevent urgent hearing of the matter – either by directly rejecting any attempt to hear the matter urgently, or, more subtly, by agreeing to hear a matter but not constituting the bench that would hear the matter.

Even if he does not prevent the matter from being heard, questions will be raised about the chief justice having the ability to influence the constitution of the bench that will hear the matter why the chief justice did not recuse himself, as convention and propriety would have demanded, or why he did not wait for the constitution bench constituted by Justices Chelameswar and Nazeer to consider the validity of the reference.

It is hoped that Chief Justice Misra does not block the hearing of a matter of such national importance and most likely, he will not. But the fact that five judges of the Supreme Court allowed the chief justice to enjoy such unfettered immunity in the face of potentially grave allegations is truly troubling.

It is also equally worrying that the Supreme Court Bar Association (SCBA) and several senior members of the bar were complicit in achieving this result. The SCBA in fact even went so far as to demand that contempt charges be framed against fellow members of the bar who attempted to clear the air in a matter of such extreme importance. The real casualty in the drama that unfolded in the Supreme Court on Friday, however, is public confidence in an institution that people still hold in high esteem.

Vikas Mahendra is a Bangalore-based lawyer.

  • Anjan Basu

    The historian Eric Hobsbawm talked about “post-mortem inquests in which the corpse pretends to be the coroner”. Here we have a case where the corpse does not merely wish to double up as the coroner, but wants to usurp the roles of the jury and the judge, too. The gentleman’s antecedents were under a scanner even before he was elevated as the CJI, and now we are getting to find out why.

  • There are some fundamental issues beyond the ones brought out here.

    i. For one, is it proper for the bench to involve lawyers and listen to them at great length who weren’t party to the case while giving a short shrift to the arguing counsel of the petitioner? Ours isn’t a banana republic and our courts aren’t kangaroo courts! Rule of Law still holds sway. Playing to eager beaver onlookers, prompting and seeking their responses are extraneous to the case.

    ii. Although I am personally abhorrent to the very concept of contempt of court unless it interferes with the administration of justice, for sake of equal and equitable application of the rule, as per media reports, would the adverse remarks made openly in court no. 1 (CJI’s bench) on the judgment of Court No. 2 (Justice Chelameswar’s bench of November 9) by the by-standing lawyers not party to this case, not tantamount to contempt of court? How, then, was an overt contempt of a Supreme Court bench allowed to be committed in Court No. 1 of the highest court of the land? How would that be dealt with now? By Court No. 2 (Justice Chelameswar’s bench)? This doubtless would need addressing now.

    iii. What’s the meaning of Mr. Prashant Bhushan “not being worthy of contempt” as the CJI is alleged to have remarked per media reports? If Mr. Bhushan was indeed so much beneath contempt, why was then the issue of contempt at all brought up suo motu by the CJI? Was it merely to humiliate him in full glare of all those present in the packed courtroom? It needs to be said that notwithstanding whatever the bench thinks of him, the public perception rightly is very different. Mr. Prashant Bhushan (along with Mr. Dushyant Dave) is a much revered name in the legal world and therefore a household name, with an unimpeachable reputation in the country and abroad for upholding and fighting for probity in public life. I still recall his respected father, Senior Lawyer Mr. Shanti Bhushan’s stirring words – that shall always ring down the corridors of modern judiciary – in an affidavit in 2010 while impleading himself in a case publicly stated that out of the last sixteen Chief Justices of India, eight of them were definitely corrupt – where he wrote that he “be added as a respondent to this contempt petition so that he is also suitably punished for this contempt. The applicant would consider it a great honour to spend time in jail for making an effort to get for the people of India an honest and clean judiciary.” For all my innate poverty and inadequacy of English language, I can’t fathom the meaning of “not being worthy of contempt”.

    Let me say that the Supreme Court is too precious an institution; hence the need to firewall it from dross. Given our feudal mindset, public offices can vest public servants with outsized sense of importance, where individuals make institutions identify with their actions and breach turfs. Therefore, the need for conscious self-restraint (“Not worthy of contempt” is an example), also individual/institutional prescriptions. And the humility to internalize that public officials are mere instruments to discharge public duties within the bounds of propriety, courtesy, and realism, both enjoined and expected. It’s more dire now than ever before.