All three judges on the bench hearing the matter ought to have recused themselves, going by the Supreme Court’s own judgments and precedents.
New Delhi: On Monday, November 13, a three-judge bench set up by Chief Justice Dipak Misra is scheduled to hear Kamini Jaiswal’s petition for an independent and impartial probe into the attempt to bribe Supreme Court judges in the medical college recognition matter.
Last week, the case shook the court because the petitioner sought the recusal of the chief justice, both judicially and administratively, in hearing the matter himself or in deciding which judges would hear it. This was because the chief justice headed the bench which heard and disposed of the case which was allegedly sought to be influenced by the bribe-givers.
Although Chief Justice Misra is not part of the new three-judge bench which is to hear the matter on Monday, the presence of Justice A.M. Khanwilkar, besides Justices R.K. Agrawal and Arun Mishra on the bench, is likely to be controversial. For Justice Khanwilkar was part of the three-judge bench which disposed of the civil writ petition (797 of 2017) filed by the Prasad Education Trust on September 18. The alleged bribery was to influence the outcome of this case. The other two judges were the chief justice himself, and justice D.Y. Chandrachud. If Chief Justice Misra’s recusal was sought on the principle that no one should be a judge in his own cause, it should apply equally to Justice Khanwilkar, who was part of the bench on September 18, when it heard and disposed of the case.
On September 18, the bench had directed that there shall be no renewal of permission to the trust to admit students for the 2017-18 academic session. It had also asked the Medical Council of India to send an inspecting team to the institution as per the schedule for consideration of grant of LOP for the 2018-19 academic year. “The bank guarantee which has been deposited shall not be encashed and be kept alive”, the order noted.
On November 10, the CJI, during the chaotic proceedings of the five-judge constitution bench, was quoted as saying that there was nothing in the above order which could be said to have favoured the petitioner. Although the CJI’s reported observation was inconsistent with the principle of nemo judex in causa sua, it was thought that by excluding himself from hearing the merits of the petition, the CJI would at last honour that principle.
However, by using his administrative power to nominate Justice Khanwilkar, who was part of both the September 18 three-judge bench as well as the November 10 constitution bench, to hear the case on Monday, the CJI appears to have concluded that the principle has no relevance to the present proceedings.
Since Justices Agrawal and Mishra were also part of the November 10 constitution bench, their inclusion in the bench that will hear Jaiswal’s petition on Monday could also be construed as an act of impropriety. All three judges have already prejudiced themselves about the outcome of the case by their participation as members of the November 10 constitution bench which decided against the petitioner’s prayer that the CJI ought not to hear the case at the first instance. The fact that the November 10 order was silent on the recusal issue despite counsel Prashant Bhushan raising it during the proceedings is another reason why the presence of these three judges on the bench is likely to be controversial.
The fact that Jaiswal’s petition was not before the constitution bench on November 10, but has been listed for hearing before the three-judge bench on November 13, makes no difference, as the contents of Jaiswal’s petition and that of the Campaign for Judicial Accountability and Reforms, heard earlier, were similar.
NJAC judgment on recusal
In the NJAC case, a three-Judge bench was originally constituted. It comprised of Justices Anil R. Dave, J. Chelameswar, and Madan B. Lokur.
At that time, Justice Dave was a part of the 1+2 collegium, as also, the 1+4 collegium.
The above combination heard the matter, on its first listing on March 11, 2015. Notice returnable for March 17, 2015 was issued on the first date of hearing. After hearing the matter for four days, the bench on April 7, 2015, referred the matter to be heard by a five-judge Constitution bench. During the hearing of the case on those four days, between March 17 to March 24, 2015, Justice Dave did not participate in any collegium proceedings – a fact noted by the constitution bench judgment in the NJAC case in October 2015.
Based on the referral order passed by the three-judge bench on April 7, 2015, the then CJI, Dattu constituted a five-judge bench, which was headed by Justice Dave. On April 13, 2015, Justice Dave became an ex officio member of the NJAC, on account of being the second senior-most judge after the CJI, under the mandate of the 99th Constitution Amendment Act, 2014, and the NJAC Act, 2014, which were notified that day.
When the NJAC matter came up for hearing for the first time, before the five-judge bench on April 15, 2015, it passed the following order:
“List the matters before a bench of which one of us (Anil R. Dave, J.) is not a member.”
After Justice Dave’s recusal, Justice J.S. Khehar was nominated by the then CJI, Dattu to the bench, to hear the NJAC case.
There is an interesting discussion in the NJAC judgment as to whether Justice Dave recused himself, or acted in deference to a prayer made to him by counsel. Fali S.Nariman, counsel for the petitioners, strongly refuted the impression that he had ever required Justice Dave to recuse himself. He claimed that he had merely requested Justice Dave not to take any part in the proceedings of the NJAC, during the hearing of these matters.
As it happened, Nariman had also sought the recusal of Justice Khehar, because he was a member of the 1+4 collegium, and as the NJAC case involved a challenge to the collegium system, it was argued that no member of the collegium could be a part of the bench, or if he is nominated to the bench, he should declare that he would not take part in the collegium’s meetings during the proceedings of the bench. Justice Khehar did so by declaring that he would not take part in the collegium’s proceedings till the conclusion of the NJAC hearings.
Justice Khehar did not see any merit in the plea for his recusal on the ground of collegium membership, because other judges on the bench were likely to suffer similar disqualification, as they were to become members of either the collegium or the NJAC at some stage.
A reasoned order declining Justice Khehar’s recusal was delivered by Justice Chelameswar, who was part of the NJAC bench. After surveying the case law on the subject, Justice Chelameswar held that if a judge has a financial interest in the outcome of a case, he is automatically disqualified from hearing the case. In cases where the interest of the judge in the case is other than financial, then the disqualification is not automatic, but an enquiry is required whether the existence of such an interest disqualifies the judges tested in the light of either the principle of “real danger” or “reasonable apprehension” of bias, he held.
Justice Chelameswar held that it was nobody’s case that Justice Khehar had any pecuniary interest, or suffered disqualification on the principle of real danger or reasonable apprehension of bias.
The Pinochet case added a new category, that is, that the judge is automatically disqualified from hearing a case where the judge is interested in a cause which is being promoted by one of the parties to the case. Justice Chelameswar asked whether Justice Khehar shared any interest which one of the parties is promoting. All the parties to these proceedings claim to be promoting the cause of ensuring the existence of an impartial and independent judiciary; they differ only with regard to the process by which such a result is to be achieved, he said.
Nariman’s plea for recusal of Justice Khehar was that by virtue of being a member of the collegium, he would declare the NJAC law unconstitutional. Justice Chelameswar held that if that was true, the beneficiary would be the petitioner who had challenged the law, whereas it was the petitioner, and not the respondent who was seeking Justice Khehar’s recusal. The Centre had made an emphatic statement that it had no objection to Justice Khehar hearing the matter as a presiding judge of the bench.
Most importantly, Justice Chelameswar observed:
“In our opinion, the implication of the above principle is that only a party who has suffered or likely to suffer an adverse adjudication because of the possibility of bias on the part of the adjudicator can raise the objection.”
Justice Chelameswar dismissed the plea for recusal of Justice Khehar on the ground that the argument for his recusal would render all the judges of the Supreme Court disqualified from hearing the case. Judges who are not members of the collegium are also called upon to express opinions regarding the proposals of appointments to the high courts with which they were earlier associated with either as judges or chief justices; therefore, the “doctrine of necessity” would militate against such a result, he reasoned.
In the plea for a probe into the attemptes bribery in the Prasad Education Trust matter, the parties who are likely to suffer adverse adjudication because of the possibility of bias on the part of the bench hearing the matter raised an objection against the hearing of the case by the CJI, and others chosen by him through his administrative power. The question of application of “doctrine of necessity”, as in the NJAC case, does not arise, because not all judges of the Supreme Court could be expected to suffer from a similar possibility of bias.
The NJAC judgment dealing with recusal is binding on the CJI, and on the three-judge bench chosen by him, to hear Jaiswal’s petition.
Chief justice’s powers
In his five judge bench ruling last week, the CJI has held that he is the master of the roster by virtue of his administrative power, and no other judge is competent to constitute benches or decide which case should be listed before which bench.
Assuming that he is correct on the interpretation of his powers, and the purpose of avoiding chaos in the administration of the Supreme Court is a sound one, one wonders whether the purpose was achieved during the proceedings of the constitution bench on November 10. Every journalist’s account of that day testifies that it was chaotic, whereas the hearings of the case by two separate two-judge benches on November 9 and on the forenoon of November 10 were orderly.
An interpretation which yields the administrative powers of the CJI to the previous decision of the constitution bench – in this case, the NJAC bench’s ruling on recusal – would have withstood legal scrutiny, and added to the prestige of the CJI. After all, Justice Chelameswar was only exercising his responsibility of responding to urgent mentionings by the counsel, while the CJI sat on the constitution bench – a convention – and referred it to a constitution bench of the first five judges, which included the CJI, leaving the decision on recusal to himself, and others on the bench.
The contrast between the NJAC bench and the bench which assembled at short notice on November 10 – both five-judge constitution benches – on the question of recusal was obvious. Both Justices Dave and Khehar were reluctant to participate in the hearings, when counsel pointed to conflicts of interest on their part. While Justice Dave quit without quibbling over whether his membership of the NJAC would disqualify him even if he didn’t participate in its meetings, Justice Khehar was persuaded by his colleagues and the potential beneficiaries of his recusal to stay on the bench.
Justice Dipak Misra, on the contrary, displayed extraordinary interest in hearing the petition, and found no reason to explain why he need not recuse himself.