By Moksha Pillai
“Justice is a conscience, not a personal conscience but the conscience of the whole of humanity.” –Alexander Solzhenitsyn
The dictum “Nemo judex in causa sua”, which translates as “no one should be a judge in his/her own cause”, is generally considered to be a precondition for a reliable, upright judicial system. The principle, constituting one of the main pillars of our system, not only intends to prevent a potential wrong-doer from condoning his errors by judging the validity of his own actions but also, and more importantly, to preserve public confidence in the sanctity and independence of the judiciary itself. However, the 10th of November 2017 witnessed a threat to the majesty of India’s highest Judicial Forum and Final Court of Appeal.
The Prasad case: A tumultuous affair
The pile of hidden skeletons in the Supreme Court’s backyard came tumbling into the open on 19th September 2017, when the CBI filed a first information report (FIR) against Retired High Court Judge I M Quddausi. The report suggested the plotting of a conspiracy—in addition to a huge bribe—for procuring a favourable order in a matter relating to the adjudication of a case. The case pertains to a recognition of the Prasad Institute of Medical Science in Lucknow—one of the 46 colleges barred by the Government and the Medical Council of India owing to non-compliance with the requirements for setting up a medical college.
The damaging allegations and their suspicious circumstances later provoked advocate Kamini Jaiswal along with the Campaign for Judicial Accountability and Reforms (CJAR) to file a writ petition in the matter, seeking an independent and thorough court-monitored investigation in the case. This investigation would require the recusal of the present Chief Justice and would be carried out by a special investigation team before a bench comprising of Justices Jasti Chelameshwar and Abdul Nazeer.
After the tumultuous opening act, an ugly crescendo of misery descended upon the apex body of the Indian court system on 10th November 2017. Chief Justice Dipak Misra sought to assert his position as Master of the Roster and constituted a three-Judge Bench comprising Justices R K Agarwal, A K Mishra and A M Khanwilkar to hear the petition filed by advocate Kamini Jaiswal. The bench not only annulled the order passed by justices Chelameswar and Nazeer but also ordered the petition to be placed before the Chief Justice for listing before the appropriate bench.
Corruption charges and conflicts of interest
As the nation awaits the pronouncement of the Bench today, the question of a conflict-of-interest, due to the Chief Justice’s role in the bench which heard and disposed of the Prasad Institute Case, remains to be debated. Although Chief Justice Misra is not part of the three-judge bench which is to hear the matter today, the presence of Justice A M Khanwilkar, is likely to be controversial, as he was part of the original bench which disposed of the Civil Writ Petition (number 797 of 2017) filed by the Prasad Education Trust on September 18.
Apart from the very public muscle-flexing, there are other aspects of concern in the hapless state of law enforcement. Firstly, 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. Secondly, if the Chief Justice has a conflict of interest in a specific case, such a case must be allocated to a bench selected by the next senior judge on the Supreme Court. This is demanded by the principles of natural justice and is in the best interest of the judiciary itself. Thirdly, it is also worrying that the Supreme Court Bar Association (SCBA) and several senior members of the bar were complicit in arriving at this result. In fact, the SCBA even went so far as to demand that contempt charges be framed against their fellow members of the bar who brought attention to the case.
Loss of public confidence
This incident seems to be one among many episodes involving charges of corruption against CJs in India since 2009. The real casualty in the drama, however, was public confidence in an institution that people still hold in high esteem. Justice must not only be done but should also be seen to have been done. If the Judicial System wishes to sustain and bolster the faith of the public at large, they must re-structure their existing regulatory framework, propagate and practice an unbiased approach towards all cases and open-up its eyes to the harsh reality of corruption. The Law might be blind, but the citizens of India aren’t.
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