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Institutional Integrity Of The Supreme Court Under Cloud

Last week the Supreme Court witnessed one of the most controversial events in itsentire history. The Chief Justice of India, Mr. Dipak Misra, annuled an order of the second seniormost judge of the Court, Justice J. Chelameshwar and Justice Abdul Nazeer passed on 9th November, 2017, thereby bypassing constitutional and judicial norms and propriety.

The present controversy is traced to a FIR filed by CBI in September, 2017 against some accused, including a retired High Court judge from Orissa, Justice I.M. Quddissi, on the basis that they allegedly conspired to get favourable orders from the High Courts and Supreme Court for a Lucknow-based organisation called Prasad Educational Trust. This organisation’s application for opening a medical college was twice rejected by Medical Council of India (‘MCI’), and twice the Supreme Court bench, which was hearing the matters headed by Justice Misra, asked the MCI to reconsider their application by conducting fresh inspection. Some accused were arrested by CBI and later released on bail.

In light of this, the Campaign for Judicial Accountability and Reforms (‘CJAR’) and Advocate Kamini Jaiswal filed two separate writ petitions pertaining to corruption allegations amongst highest levels of the judiciary, and seeking the setting up of Special Investigation Team (‘SIT’) by the Apex Court for an independent and fair investigation. Kamini Jaiswal’s petition was mentioned before Justice Chelameshwar on 9th November, 2017, who heard it with Justice Abdul Nazeer, and passed an order referring the matter to be heard by a Constitution Bench of five senior-most Judges of the Supreme Court, since it raised many critical issues regarding judicial corruption and accountability.

On 10th November, 2017, the CJAR’s petition came up before Justice A.K. Sikri who was unhappy about the other petition being taken up by J. Chelameshwar, and sent CJAR’s petition before Chief Justice of India for appropriate orders, and also impleaded Supreme Court Bar Association in the case. In the afternoon, the CJI suddenly set up first a seven judge bench, and then five judge bench to hear the CJAR’s petition, which almost led to a ‘constitutional crisis’. For almost 90 minutes, the CJI, along with Justice R.K. Agrawal, Justice Arun Mishra, Justice Amitava Roy, and Justice A.M. Khanwilkar, heard arguments from lawyers not connected with the matter, but the Petitioner’s advocate, Mr. Prashant Bhushan was not allowed to argue. The CJI was visibly upset with J. Chelameshwar’s order of setting up of a Constitution bench of five senior most judges, on the ground that CJI was the master of roster and was the sole authority to decide which bench will hear which matters or to set up a Constitution Bench. While SCBA and even Additional Solicitor General of India emphasised the sole authority of CJI to be the master of roster on the administrative side, other lawyers in fact demanded contempt proceedings against Prashant Bhushan and Kamini Jaiswal for bringing ‘disrepute’ to the institution of Supreme Court. It was quite evident that the entire chaos was orchestrated, in order to deviate from the real issue whether the CJI could hear a matter or even set up the bench if his name itself was involved in the case.

The CJI insisted that no Judge or Judges can give directions to the Registry for listing any case before him or them which runs counter to the directions given by the Chief Justice.The Constitution bench then proceeded to annul the order of Justice Chelameshwaron the basis that “no judge can take up the matter on his own, unless allocated by the Chief Justice of India, as he is the master of the roster.” The CJI then directed the CJAR’s petition to be heard by a Constitution bench to be set by him.

The entire episode has left a bitter taste in the mouth of everyone, especially those fighting for judicial accountability and transparency, and has shaken the confidence of public in the administration of justice. The propriety of J. Chelameshwar’s order may be debatable, but clearly, the conduct of CJI leaves a lot to be desired, and the crisis of faith that was being earlier whispered in the corridors of the highest court is now out in the open. [Campaign for Judicial Accountability and Reforms v Union of India and Ors., Writ Petition (Criminal) No.169 OF 2017, date of order: 10.11.2017]

Major legal decisions

i. Petitions related to demonetisation referred to Constitution bench – The Supreme Court has referred 14 petitions relating to demonetisation for the consideration of the Constitution Bench. Some petitions have challenged the constitutional validity of demonetisation, whileothers seek more time to deposit the demonetized notes.The Centre has also clarified that no punitive action will be taken against the Petitioners who have sought more time to depsoit the demonetised notes, owing to delay in the disposal of the petitions. [Sudha Mishra v Union of India, Writ Petion (Civil)124/2017, date of order: 03.11.2017]

ii. Arguments on the status of NCT of Delhi currently being heard before Constitution Bench– A five judge bench of the Supreme Court has begun hearing on the matter pertaining to the relationship of NCT of Delhi with Central Government. Earlier a two judge bench had referred the matter to a constitution bench to hear the appeal filed by the Delhi Government against the decision of the Delhi High Court declaring the Lieutenant Governor of Delhi as the ‘administrative head’ of Delhi. The counsel for the Delhi government highlighted that such a conclusion was against the spirit of the Constitution. He further argued that daily governance had been paralysed because of the friction with the Governor, the ministers had to plead with civil servants to get simple tasks done. [Govt. of National Capital Territory of Delhi Vs. Naresh Kumar, Special Leave Petition (Civil) No. 026470/2016]

iii. SC Dismisses Plea Which Questioned Delay In MOP And Appointments Of Judges Before It’s Finalisation – The Supreme Court dismissed a petition, which sought an explanation from the Centre for the delay in finalizing the memorandum of procedure (MOP) for appointment of judges to the Supreme Court and High Courtsand which also questioned continuing appointments even when the MOP had not been finalised.The petition was earlier listed before the bench of Justices A.K. Goel and U.U. Lalit, who though dismissed the prayer challenging the judicial appointments, had asked the Attorney General to appear and explain the delay in finalising the MOP. In an unusual instance, the matter was listed before CJI who noted that this was a matter to be dealt with administratively, andthat there was no merit in challenge to the appointment of judges of this Court and the High Courts. The Supreme Court then dismissed the petition.[R.P. Luthra v Union of India, Ministry of Law and Justice, Special Leave to Appeal (Civil) Nos.28662-28663/2017, date of order: 08.11.2017

iv. Notice issued in case challenging Jallikattu statute – The Supreme Court has again issued notice in a petition filed by PETA India challenging the bull taming sport of Tamil Nadu – Jallikattu. Earlier, the Court had banned the sport as being violative of Prevention of Cruelty to Animals Act, 1960, since it involved taming of bulls by inflicting cruelty on them. The State then introduced the Prevention of Cruelty to Animals (Conduct of Jallikattu) Rules of 2017 and certain state amendments to the central act to allow the continuation of the sport, which are being challenged in the current petition. The petitioner has placed photographic evidence of the ill-treatment to the bulls in the sport and claimed that the continuation of the sport violates the rights of animals to be treated with dignity and without cruelty. [PETA v Tamil Nadu, Writ Petition (Civil) 1011/2017, date of order: 06.11.2017]

v. Order in the Jindal Law School rape case stayed – The Supreme Court has allowed an appeal and alsostayed the order of the Punjab and Haryana High Court suspending the sentence awarded to the three students from Jindal Global Law School. They were convicted for blackmailing and gang raping a student of the same University for two years. In the impugned order, the High Court had suspended the sentence, while casting aspersions on the victim’s testimony, which apparently made the entire incident appear like a casual relationship gone awry and does not show any “gut wrenching violence” which accompanies such incidents. [Ms. X v Haryana, Special Leave Petition (Criminal) D32720/2017, date of order: 06.11.2017]

vi. Siddharth Luthra and R. Basant appointed as amicus curiae to frame uniform guidelines in criminal trials –The Supreme Court appointed Sidharth Luthra and R.Basant, Senior Advocates as amicus curiae in a matter taking cognizance on the issue of ‘inadequacies and deficiencies in criminal trial’. While arguing a batch of criminal appeals relating to a political murder from Kerala, R. Basant had pointed out certain common inadequacies and deficiencies in the course of trial.He had suggested that in the interests of better administration of criminal justice and to usher in a certain amount of uniformity, the Apex Court could formulate certain guidelines. Accordingly, the Court appointed the two lawyers as amicus to assist the Court. [In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v State of Andhra Pradesh, Sou Moto Writ Petition (Criminal) No. 1/2017, date of order: 07.11.2017]

vii. Petitioner asked to approach Minority Commission for minority status for Hindus -The Supreme Court has asked the petitioner in a PIL seeking minority status for Hindus in eight states to approach the National Commission for Minorities. The bench expressed its inability to pass such orders and explained that the decision could only be taken by the Commission. The petitioner had argued that the minority commission takes decisions which have nation-wide impact, a decision effecting just eight states could be taken by the Supreme Court, which was rejected. The Petition was thereafter withdrawn. [Ashwini Kumar Upadhyay v Union of India, Writ Petition (Civil) 1064/2017, date of order: 10.11.2017]

viii. SC perused “confidential reports” in Karti Case in open court – The Supreme Court examined the documents submitted in a sealed cover by the CBI in the open court to allay any apprehension of Karti Chidambaramand others facing probe regarding irregularities in FIPB clearance given to INX Media Ltd. The ASG had been asked to present the documents by 9 November, who had claimed that it would be travesty of justice if the court did not see the papers and form an opinion. After perusing the documents, the court decided that the documents wouldbe returned to the ASG. [Central Bureau of Investigation v Karti P Chidambaram, Special Leave to Appeal (Civil) No(s).20699-20700/2017, dated 06.11.2017 and 09.11.2017]

ix. Jaypee asked to submit “substantial amount” to prove bona fide – The Supreme Court has refused the request by Jaypee Industries to deposit Rs 400 cr with its registry as against Rs 2000 cr, as directed by the Court earlier. The Company claimed that no company possesses such a large amount of liquid capital to which the Supreme Court responded by stating that a substantial amount would have to be submitted. The Company has been advised to deposit Rs.1000 cr by November 13. Jaypee is facing insolvency proceedings and has been asked to deposit the sum and has asked an IRP to take over the company.

x. High Court condemns marital rape ¬– The Gujarat High Court questioned the legality of marital rape, while hearing a case filed by a woman against her husband on allegations of having been forced into performing oral sex under Section 377, IPC. The question before the Court is whether a wife can initiate action against her husband for the statutory offence of unnatural sex, though marital rape is exempt under Section 375, IPC. While issuing notice in the matter, the Judge remarked that the prevalence of marital rape is disgraceful and has scarred the trust in the institution of marriage [Nimeshbhai Bharatbhai Desai v State of Gujarat, Criminal Miscellaneous Application No. 26957 of 2017, date of order: 06.11.2017]

Prepared by Amritananda Chakravorty ([email protected]) and Mihir Samson ([email protected]), Delhi based practicing Advocates.

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