Credibility, Independence and Moral Authority of Supreme Court Have Been Dented: Former Law Minister Ashwani Kumar

The recent standoff between members of the judicial fraternity in the Supreme Court could have been avoided, says Kumar.

Ashwani Kumar. Credit: Norbert Schiller, CC BY-SA 2.0

The recent standoff between members of the legal and judicial fraternity in the Supreme Court over moving of two related petitions – one by the Campaign for Judicial Accountability and Reforms (CJAR), represented by senior advocate Prashant Bhushan, on November 8, and another by senior advocate Kamini Jaiswal on November 9 – which dealt with the issue of a probe by the Central Bureau of Investigation into a medical college case and a conspiracy to bribe judges of the Supreme Court, could have been avoided, according to senior advocate and former Union law minister Ashwani Kumar.

Speaking to The Wire, he talked about a range of issues, starting from the filing of the PIL before a bench of the second-most senior judge in the apex court, Justice J. Chelameshwar, who had referred the petition filed by Jaiswal, represented by senior advocate Dushyant Dave and advocate Abhimanue Shrestha, to a constitution bench comprising the “first five judges of the Supreme Court in the order of seniority”.

A five-judge constitution bench of the Supreme Court had on November 10, however, overturned the order of the two-judge bench of Justice Chelameshwar, to set up a larger bench on the ground that the Chief Justice of India was the “master of the court” and had the sole prerogative to allocate matters.

A three-judge bench headed by Justice R.K. Agrawal subsequently held that the two petitions had brought the “entire judicial system… unnecessarily… into disrepute for no good cause or reason whatsoever,” and noted that it was “highly improper” for the petitioner to allege conflict of interest in the petition and demanded that CJI Dipak Misra not hear the plea. The bench had also cautioned that the manner in which the petitions were filed amounted to “forum shopping”.

The following is a verbatim account of the interview with senior advocate and former Union law minister Ashwani Kumar conducted by The Wire. 


I do believe the court’s finding, that the procedure adopted by the petitioner amounted to forum shopping or an encroaching on the power of the Chief Justice of India to constitute benches and that it had caused damage to the institutional integrity of the court is an unexceptionable finding. It is true that none is above the law; it is true that judges are also accountable for their actions but it is equally important to do the right thing in the right way. The manner in which the petitions were sought to be taken to a particular court and the content and nature of oral submissions made in the various courts reflects poorly on those who sought to subserve the ends of justice. I do hope in all sincerity that the sordid saga that unfolded before the Supreme Court in the recent days would provide an opportunity to the court itself to correct the institutional imbalance that has crept into our scheme of constitutional governance.

It is important for the judges to establish the internal cohesiveness of the court for which purposive initiatives may be necessary on part of the chief justice. It is also necessary for the judges to rise above personal preferences and prejudices. They are all human and therefore fallible and that is why I believe that even the judges should not stand on prestige and admit to the need for applying correctives in restoring judicial decorum.

Discomfiture suffered by SC not a result of judicial precedence 

It is equally important at this point of time to reflect whether the discomfiture suffered by the Supreme Court recently is not in some way the result of the judicial precedence established by the court itself. Had it not been for the impression that the device of PIL is effective in enlisting the jurisdiction of the Supreme Court in certain matters, perhaps this PIL would not have been filed and the matter would have had to go through the normal procedures of a criminal trial through the hierarchy of the courts as established by the judicial system of the country.

Also read: Prashant Bhushan on the CJI’s ‘Extraordinary Interest’ in a Matter Directly Concerning Himself

On a larger plane, I believe that the expansion of judicial power, the enlargement of the judicial review jurisdiction to embrace almost every activity in the country is the result of a steep decline in the credibility of the political executive and the failure of the legislative and executive branches to protect their turf and domain. The answer to the inaction of the legislative and political executive, in my personal view, does not lie in the extraordinary expansion of the judicial review power, it lies in the collective wisdom of the people of this country who are always entitled to hold an erring government or a failing parliament to account at the time of elections. This is the essence of parliamentary democracy.

I do believe that the court will be doing a great service to itself and to the republic if it were to rise to the occasion to restore the institutional integrity of the judicial system and to set right the constitutional imbalance which is debilitating the institutions of our constitutional democracy.

Not right to drag final court of appeal at threshold stage

It is important for us to also ask the question in the specific facts and circumstances of this case whether in matters concerning criminal trials it is at all right to drag the final court of appeal at the threshold stage of the investigation itself in derogation of the established judicial hierarchy and whether a mere apprehension of a possible failure of the justice on part of the petitioners is enough to tarnish the hard-earned reputations of high public functionaries and whether the ensuing media trials do not offend the first principles of fair trial as integral to the rule of law which is an integral component of the basic structure of the constitution.

All in all, for various reasons which I have just mentioned, what happened in the court in the last few days has definitely dented the credibility of the court and therefore the independence of the court and therefore the moral authority of the court. The authority of the Supreme Court rests in the ultimate analysis not on any provision of the constitution but on its moral integrity and the respect that the court and its decisions enjoy in the minds and hearts of the people of this country.

Therefore, I do believe that the bench and the bar must collectively and unitedly work to restore this great institution to health and I would be failing in my duty if I were not to candidly admit that both the lawyers and the judges have not acquitted themselves well in this entire episode.

Mechanism of PIL abused on many occasions

There is no doubt that the mechanism of PIL has been abused on a number of occasions and continues to be abused. If we were to go on the basis of the original philosophy of the PIL as propagated by Justice P.N. Bhagwati and Justice Krishna Iyer we would know that this was not the scope of the PIL that was intended as an instrument of empowering the marginalised people of this country and to secure the human rights of our people. Quite clearly PIL has now been repeatedly abused, and I am not commenting on one particular PIL, I am just saying that the instances of the abuse of PIL have been far too many in the recent past.

CJI best judge for allocating cases

As far as the Chief Justice of India being the “master of the roster” is concerned, this is an established position. The CJI on the administrative side is the master of the roster because there is an assumption that he knows best which judges he could spare for which cases and which cases should go to which bench. This has been an uninterrupted tradition, never departed from. In this particular case, the main objection seems to be that since another bench of the Supreme Court, headed by Justice A.K. Sikri, was seized of another similar petition, the mentioning must ought to have been made before that court and that court ought to have taken a view on this matter.

All of this did not happen and then there were inelegant scenes in the court which have not filled all of us with glory and I think it is a sad day in the judicial history of this country.

The issue could have been handled differently

In hindsight, first and foremost, care ought to have been taken to ensure that whichever way the PIL was entertained, it did not impact the institutional credibility of the highest court in the country without formidable evidence which may have necessitated a difficult choice. Now, it so appears that the petitioners have themselves stated that their main idea was not to cast aspersions on the judges but to protect the independence of the judges and independence of the judiciary. That is not how it seemed and that is not how the petition is being viewed by many people. I do not want to pass a personal judgment on anyone here, but I do want to say that when we need to preserve the institutional integrity of the great institutions of our liberal democracy, we need to be extra careful as to the consequences of our actions.

I think first of all there should have been greater deliberation and greater reflection on the petition and its contents. Secondly, this could have been mentioned before Justice Sikri who was seized of the matter and then the matter could have been taken from there. I do not think that the way the hearing went was necessary. This should have been avoided but I am happy to state that despite the fact that the Supreme Court has in its judgment yesterday held that the petitioners were prima facie guilty of contempt and that their conduct was contemptuous and unethical, the court has still and rightly so inclined to show grace and has not initiated contempt proceedings. I think this would go a long way in ensuring that the bar and the bench work together to ensure the strength of the institution.

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