It was in R. vs. Sussex Justices ex parte McCarthy that Lord Hewart C.J. affirmed the fundamental and basic principles of natural justice. The issue of bias arose for consideration because at the hearing before the justices – of a motor accident case involving the applicant McCarthy and another driver – the acting clerk to the justices was a member of the firm of solicitors representing the opposite party to the applicant.
When the justices retired for deliberation, the acting clerk joined them, in case they should desire to be advised on any point of law. As a matter of fact the clerk remained silent, and the justices arrived at their decision without any assistance or advice from the acting clerk. The decision went against McCarthy. In an application to set aside the decision on the ground that it was vitiated by bias, Lord Hewart set out the following oft quoted dictum on bias:
“It is said, and no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way. But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
There are two fundamental principles involved here, namely, the rule against bias and the right to be heard. They can be summarised in two words, “impartiality” and “fairness”. There are thus two requirements of natural justice: no man shall be a judge in his own cause; and no man shall be condemned unheard.
Deciding bias
This article is concerned with the first of the fundamental principles of natural justice, namely, that no man shall be a judge in his own cause. This necessarily follows from the obvious requirement that a judge must decide impartially between the parties before him. The rule in its most essential manifestation prohibits a judge who is biased, or at least is reasonably perceived by one of the parties, to be biased, from hearing a matter.
Bias, in turn, has two aspects – pecuniary bias, and where for any non-pecuniary reason or cause, the judge may have a bias in favour of one of the parties, or for that matter a bias or animus against one of the parties.
In R. vs. Camborne Justices ex p. Pearce, the test to establish non-pecuniary bias on the part of a judge was formulated as the real likelihood of bias in the subject matter of the proceeding. Mere suspicion, however well founded, was not considered sufficient to disqualify a judge from hearing a matter. This test is known as “the reasonable likelihood test”.
Unlike pecuniary bias, which is relatively easy to establish, the ascertainment of non-pecuniary bias has often been a vexed issue for litigants, lawyers and judges alike. Judges are often far too quick to take umbrage at the suggestion that they may be perceived, in the eyes of a litigant, as biased. On the other hand, a litigant may be all too willing to level a charge of bias against a judge whom he perceives as being against him, though there is in fact no real likelihood of bias.
Also read: ‘Key Contempt Clause Unconstitutional’, N. Ram, Shourie, Bhushan Want SC to Strike it Down
It is often difficult to discern where a personal or political predisposition or leaning (which is but human), may be elevated to the level of a bias that would meet the reasonable likelihood test. To add to the complexities, a lawyer may hesitate to level the charge of bias, though in a given case it may be his duty to do so, for fear of being threatened with contempt – a weapon that judges in this country enthusiastically and freely employ to silence criticism of their judgments, as well as their conduct in and out of court.
Turning to the great importance of the principles of natural justice, in the landmark case of Ridge vs. Baldwin (1964), Lord Reid rescued natural justice from the shadow cast upon it by the judgment of Lord Radcliff in Nakkuda Ali vs. Jayaratne in the context of a right to a fair and impartial hearing. Three years later the Supreme Court, speaking through Justice Shah, followed Ridge vs. Baldwin (though without referring to it) in State of Orissa vs. Binapani Dei. In 1970, Justice Hegde in A.K. Kraipak vs. Union (AIR 1970 SC 150) dealing with the question of natural justice in the context of bias, said: “The aim of the rules of natural justice is to secure justice, or to put it negatively to prevent a miscarriage of justice.”
Significantly the Supreme Court, speaking through Justice Bhagwati, noted that a violation of the principles of natural justice constitutes a violation of Article 14 of the constitution (‘equality before the law’). And the Supreme Court, departing from British jurisprudence, affirmed that an order passed in violation of the principles of natural justice is void, and not merely voidable. These judgments recognised the cardinal importance of the principle of natural justice, namely, that no man shall be condemned unheard – in short, strict compliance with the rule. The Supreme Court has also laid down the law on the subject of non-pecuniary bias in no uncertain terms, not even sparing chief ministers and other high-ranking functionaries, whose decisions and orders have been tainted by bias or animus.
The case against Prashant Bhushan
Now turning to the subject of this article, it is disquieting, to say the least, to observe the happenings in the Supreme Court in the ongoing saga of the suo moto contempt petition initiated by it against Prashant Bhushan. The facts are too well known to be laboured. An entirely factual and innocuous tweet by Bhushan on June 29, 2020 (corroborated by an accompanying photograph), regarding the conduct of Chief Justice S.A. Bobde in his personal capacity as a private citizen, became the subject matter of an incomprehensible, garbled and non-maintainable contempt petition.
This thoroughly misconceived criminal contempt petition, filed by one Mahek Maheshwari, violated the legal requirement of obtaining the prior sanction/permission of the attorney general. Despite this the petition appears to have been promptly placed on the administrative side before Justice Arun Mishra, who assigned this matter to a bench headed by himself.
The circumstances and haste in which this departure from the ordinary procedure occurred (where the chief justice would assign the matter to a bench, as the master of the roster) and the manner in which the matter was placed before Justice Mishra on the administrative side are shrouded in mystery. And so, a misconceived petition filed by one Mahek Maheshwari magically morphed into a suo moto contempt petition by the Supreme Court, titled In Re Prashant Bhushan and Anr.
Also read: Why Justice Arun Mishra Should Recuse Himself From Contempt Petition Against Bhushan
To add further mystery to these strange and disturbing happenings, the suo moto proceedings referred not to one, but two tweets of Bhushan’s – the one of June 29 referred to above, and one from June 27 that referred to the role of the Supreme Court in the destruction of democracy in India over the past six years, and particularly the role therein of the last four CJIs. Whilst the first tweet is both unexceptional and factually correct, the second is a perfectly legitimate expression of an opinion which echoes that of many people in this country – lawyers and laypeople alike.
It is in this context that we must analyse Bhushan’s grievance about the animus and bias of Justice Mishra towards him, in a letter addressed to the chief justice on July 25. The letter states:
“It is mysterious and deeply disturbing, how a petition of such nature is placed directly before Hon’ble Justice Arun Mishra on the administrative side, of which, he then takes suo moto cognizance and further, appropriating the powers of master of roster, he lists the case before a bench headed by himself?”
The letter goes on to detail six instances of the hostility shown by Justice Mishra towards Bhushan. These involve a number of previous occasions where the same judge has threatened Bhushan with contempt when he has suggested that certain judges ought to recuse themselves in circumstances where he (Bhushan) perceived a conflict of interest. He points out that Justice Mishra has also previously articulated an opinion that a group of lawyers (presumably including Bhushan) are holding the judiciary to ransom. Lastly, it also appears that the judge previously refused to permit the attorney general to withdraw contempt proceedings instituted by the AG against Bhushan. In these circumstances, he feels that the same judge has continually threatened him with contempt and bears an animus towards him.
The touchstone on which these grievances have to be judged is the test of a real likelihood of bias, a test repeatedly adopted by the Supreme Court. So judged, I believe that there can be little doubt that the test is met in the case of the suo moto contempt being heard by a bench headed by Justice Mishra; and that Bhushan has cause to have a reasonable apprehension that justice will not be seen to be done.
This is because it is well settled that when considering the question of the reasonable likelihood of bias, such as to disqualify a judge from hearing a matter, it is the honest perception or belief of the litigant that has to be considered, and not that of the judge. No judge is likely to admit to having a bias for or against a particular litigant. And so if the test were the belief or perception of the judge, the rule against bias would be a dead letter. This was nowhere better articulated than by Justice Venkatachalliah M.N. in Ranjit Thakur vs. Union of India in 1987. He said:
“As to the test of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however honestly, ‘Am I biased?’ but to look at the mind of the party before him.”
Well may Bhushan echo these words as he stands arraigned before the court, reasonably apprehensive that justice will not be seen to be done in his case. Not surprisingly, this is what he has indicated in his letter to the CJI: “The above facts, raise a reasonable apprehension on my part about getting a fair and impartial hearing in these contempt matters.”
Also read: In Contempt Proceedings Against Prashant Bhushan, SC Faces a Hurdle – Maintainability
Enough has been written and said about contempt jurisdiction, particularly in the context of criminal contempt, having to be exercised wisely, and with extreme caution and circumspection; and that this jurisdiction is not meant to threaten and browbeat those who criticise judgments and the conduct of judges, acting in their judicial as well as private capacity.
It is obvious to me that the present contempt proceedings, not to mention the revival of the 2009 proceedings, are nothing but an attempt to threaten Bhushan – a fierce critic of the court and its judges – into silence. These contempt proceedings are also intended to have a chilling effect on the freedom of speech; and stand as a warning to others not to speak out against the judges of the Supreme Court.
And what of the puzzling fact that when urgent and important constitutional matters (including habeas corpus petitions) are languishing for months if not years; when the court did not consider that even the plight of millions of migrants was of sufficient urgency to immediately take up those matters; when the court is only functioning in an extremely restricted manner by video conferencing, for urgent matters that can brook no delay, the bench hearing Bhushan’s suo moto contempt matter seems to think that this matter, above all others, deserves the highest priority.
Add to this the astonishing resurfacing of a contempt petition against Bhushan filed in 2009, and last heard in 2012, which, no doubt coincidentally, also just happened to be placed before the specially constituted bench headed by Justice Mishra, and one appreciates why in his letter to the CJI Bhushan has said:
“Besides, the simultaneous listing of both these contempt cases before a special bench headed by Justice Arun Mishra, have made many independent observers, including senior advocates and members of civil society observe that these appear to be vindictive, and proceeding with them in such haste, would seriously damage the reputation of this court.”
The Prashant Bhushan saga transcends the dramatis personae involved. It raises far-reaching questions, first and foremost as to whether we remain a society where freedom of speech guaranteed under our constitution is not sacrificed on the altar of contempt. Second, as to whether we are a society where fundamental principles of fairness, including the rules of natural justice, still hold the field, or whether these have been jettisoned for a new principle: justice must not only not be done, but must manifestly and undoubtedly be seen not to be done.
But transcending even these far-reaching questions is another concern that Bhushan has rightly pointed out to the CJI – namely the serious damage that will be done to the reputation of the Supreme Court as the institution entrusted with the role of guardian of the constitution. It is a reputation which the court would do well to jealously guard, remembering how hard it is to gain a reputation; and how quickly it can be lost. Well may the judges of the court ponder the words of Byron when he warned:
“A thousand years scarce serve to form a State: An hour may lay it in the dust.”
The author would like to thank and acknowledge his colleagues and friends Gulnar Mistry, Arti Raghavan and Akash Rebello for their valuable suggestions and inputs.
Navroz Seervai has been a lawyer for 40 years, and active in the fields of environment and civil liberties.