Kamini Jaiswal v. Union of India - A Case Note (wrongly referred to by the Media as 'Judges Bribery Case')

This case has been the talk of the town of late. In the instant case, the Petitioner casted very serious allegations relating to illegal gratification and other such things, upon on the Judicial System of this Country. There were two Petitions, one by the Commission for Judicial Accountability and Reforms (CJAR) and the other by Ms. Kamini Jaiswal. A Three Judges’ Bench comprising of Hon’ble J. R.K. Agrawal, Hon’ble J. Arun Mishra and Hon’ble J. A.M. Khanwilkar of the Hon’ble Supreme Court heard the matter and pronounced the Judgment dated14.11.2017.

Brief Facts

A case has been registered as FIR No. 10-A under Section 8 of the Prevention of Corruption Act, 1988 and Section 120B of IPC, by the Central Bureau of Investigation (CBI) against a retired High Court Judge and other persons, containing serious allegations relating to functioning of the Hon’ble Supreme Court.

The abovementioned Petition (filed by Ms. Kamini Jaiswal) was taken up by the Hon’ble Supreme Court on 09.11.2017 and looking into the seriousness of the matter, the Division Bench of the Hon’ble Supreme Court stated that “having regard to the totality of the circumstances, we deem it appropriate that this matter be heard by the Constitution Bench of the first five Judges in the order of seniority of this Court.” Thus, the matter was posted for listing on 13.11.2017.

Subsequently, on 10.11.2017, another similar Petition by CJAR was heard by the Hon’ble Supreme Court and the Hon’ble Supreme Court ordered upon request made by the Supreme Court Bar Association (SCBA) to implead SCBA as a Respondent to the said Petition.

There was an order passed by a Bench consisting of Hon’ble A.K. Sikri, J. on 10.11.2017 that the matter be placed before Hon’ble Chief Justice of India for listing of the matter. The matter was considered on administrative side by the Hon’ble Chief Justice of India and he constituted a 5-Judge Constitution Bench which consisted of and presided over by Hon’ble Chief Justice of India.

The Constitution Bench on 10.11.2017, as that was the only working day available before 13.11.2017, held that the Hon’ble Chief Justice of India is the master of the roster as per the decision of the Court in State of Rajasthan v. Prakash Chand & Ors. (1998) 1 SCC 1, wherein it was held that: -

a.         Administrative Control of the High Court vests in the Chief Justice alone.

b.         Chief Justice is the master of the roster. He alone has the prerogative to constitute benches of the Court and allocate cases to the benches so constituted.

c.         The puisne Judges can only do that work as is allotted to them by the Chief Justice.

d.         The puisne Judges cannot “pick and choose” any case pending in the High Court.

e.         No Judge can give any direction to the Registry which runs counter to the directions given by the Chief Justice.

Thus, the Constitution Bench of the Hon’ble Supreme Court held that the abovementioned principles shall apply proprio vigore as regards the power of the Hon’ble Chief Justice of India.

The main prayer by the Petitioners was to constitute a Special Investigation Team (SIT), headed by a retired Chief Justice of India, to investigate the offences arising out of abovementioned FIR preferred by CBI. It was averred in the Petitions that the criminal conspiracy and of taking illegal gratification to influence the outcome of a pending case before this Court, reveals a nexus between the middlemen, Hawala dealers and senior public functionaries, including persons in the judicial field. The Hon’ble Supreme Court explained the crux of the facts in the following manner: -

“The FIR lodged by the CBI names a retired Judge of the High Court as an accused, who had allegedly been negotiating through a middleman to get a favourable order in the petition pending before this Court. The said petition was heard by a Bench headed by Hon’ble Chief Justice of India. Thus, taking this as a pretext, in the instant petition, it has been averred, that the FIR casts a cloud on the judiciary at the highest level. Thus, the prayer has been made that, investigation in relation to aforesaid FIR should be handed over to an SIT headed by a retired Chief Justice of India and not left to the agency controlled by the Government; with the averment that in order to restore the confidence of the public in the judiciary, the agency controlled by the Government should not be allowed to undertake the said investigation. It is further averred in the petition, that since the matter had been heard by a Bench presided over by Hon’ble Chief Justice of India, propriety demands that the Hon’ble Chief Justice of India ought not to deal with the present petition either on the judicial side, or even on the administrative side. Therefore, present petition can neither be heard by a Bench presided by the Hon’ble Chief Justice of India, nor can it be assigned to any other Bench by Hon’ble Chief Justice of India in his administrative capacity. Further, that the petitioner has not made any representation to the respondent; because of the extreme urgency in the matter, the writ petition has been filed.”

Arguments Advanced by the Petitioners

1. The Order passed by the Constitution Bench on 10.11.2017 that Hon’ble Chief Justice of India would constitute an Appropriate Bench, is unsustainable as the Order dated 09.11.2017 had already constituted a Constitution Bench and holds the field.

2. Hon’ble J. A.M. Khanwilkar should recuse from the matter as he was a member of the Bench which disposed of the matter regarding which allegations have been made in the Petition.

3. In order to protect the independence, integrity and reputation of the Supreme Court, a SIT headed by retired Chief Justice of India should be constituted, to probe into the matter.

4. Article 144 of the Constitution of India renders it impermissible to overrule an Order passed by another Bench of the Supreme Court, as every Order of the Supreme Court is binding under Article 144.

Arguments Advanced by the learned Attorney General

The Petition is not maintainable as on mere surmises and conjectures, the whole system cannot be brought under disrepute and there is no material to insinuate the Hon’ble Supreme Court or its sitting Judges.

Arguments Advanced on behalf of the Government of India

It was contended that the two Petitions are identically worded and it is a case of Forum Hunting. Thus, the Petitions brings disrepute to this Court and are contemptuous in nature.

Issue No. 1

Whether the Bench formed by Hon’ble Chief Justice of India in exercise of his administrative power is valid and proper or not?

Held

In Para 11 of the Judgment dated 14.11.2017, the Hon’ble Supreme Court stated that the Order dated 09.11.2017 passed by the Division Bench has been rendered ineffective and the Three Judges’ Bench as formed by Hon’ble Chief Justice of India, being the master of the roster, is hearing the matter. Also, the Supreme Court Rules, 2013 provides that the Hon’ble Chief Justice has to assign the cases.

Issue No. 2

Whether Article 144 of the Constitution renders it impermissible for any Bench of the Supreme Court to overrule an Order passed by another Bench of the Supreme Court?

Held

The Supreme Court held that this issue is irrelevant as the Constitution Bench vide Order dated 10.11.2017 has already concluded that no such Order, constituting a particular Bench, can be passed, except by the CJI. The decision of the Constitution Bench is binding on all concerned.

Issue No. 3

Whether the Hon’ble Chief Justice of India could constitute Benches in cases where imputations are made against him?

Held

The Hon’ble Supreme Court answered by citing Dr. D C Saxena v. Chief Justice of India, (1996) 5 SCC 216, wherein it was held that “when imputations were made against the Chief Justice, it is the prerogative of the Chief Justice to constitute the Benches and assign judicial business, and it would not hinge on the whim of the litigant……. This Court has also laid down in Dr. D C Saxena (supra) that it was the duty of the Chief Justice to assign judicial work to brother Judges. By doing so, he did not become a Judge in his own cause. It is contempt to imply that the Chief Justice would assign it to a Bench which would not pass an order adverse to him.”

Issue No. 4

Whether Hon’ble J. A.M. Khanwilkar should recuse from the matter?

Held

The Supreme Court held that raising of this issue is nothing but another attempt of forum hunting which cannot be permitted. The Three Judges’ Bench also took down heavily on the issue of Forum Shopping or Hunting and said that “even making allegations of a per se conflict of interest require the matter could be transferred to another Bench, has also been held to be another form of forum hunting.”

Thus, it was said that there is no reasonable basis to pray for recusal of Hon’ble A.M. Khanwilkar, J.

Conclusion

The Supreme Court also cited K. Veeraswami v. Union of India, (1991) 3 SCC 655, and stated that “there cannot be registration of any FIR against a High Court Judge or Chief Justice of the High Court or the Supreme Court Judge without the consultation of the Hon’ble Chief Justice of India and, in case there is an allegation against Hon’ble Chief Justice of India, the decision has to be taken by the Hon’ble President, in accordance with the procedure prescribed in the said decision.”

It was further observed by the Supreme Court that: -

“23. There is no conflict of interest in such a matter. In case Judge is hearing a matter and if he comes to know that any party is unscrupulously trying to influence the decision making or indulging in mal practices, it is incumbent upon the Judge to take cognizance of such a matter under Contempt of Courts Act and to deal with and punish such person in accordance with law as that is not the conflict of interest but the purpose for which the entire system exists.”

Opinion

In my considered opinion, this was a much-needed Judgment by the Hon’ble Supreme Court. Being involved in legal circles, it is not uncommon to hear rumors about corruption in Judiciary. However, unless such rumours are substantiated by cogent prima facie evidence, it would be improper to implicate or involve or name any Judge. In absence of any evidence, it is but obvious to think that no foul play is involved.

Also, it is important to remember that Judiciary is one of the pillars of democracy and it would not be unwise to say that independence of judiciary is a must if this pillar of democracy is to function effectively. Any outside interference in the Judiciary from a body like CBI is totally unwarranted.

What intrigued me most is that the Petitioners were asking for recusal of a Judge on the basis of an FIR in which the said Judge has not even been named. Merely because the said Judge was a member of the Bench that disposed of the matter connected to the FIR, it cannot be presumed that there was a conflict of interest.

I think if the definition of ‘conflict of interest’ is stretched in a manner proposed by the Petitioners, then it would become very difficult for the Judges of this country to discharge their duties. Judges are also human beings and not every connection with a matter or another human being, implies that there is a conflict of interest. The Petitioners clearly took the Judicial System of this country for a ride. I am quite surprised that the Supreme Court did not impose any cost on the Petitioners.

With reference to the Order dated 09.11.2017 passed by the Division Bench, it is my humble opinion that the Constitution Bench’s Order dated 10.11.2017 has already settled the controversy. The internal working mechanism of the Supreme Court should not be doubted as it is based on principles evolved by the Supreme Court over a very long period of time and such principles are well-reasoned and equitable in nature. I conclude by stating that this practice of maligning Judges needs to stop. It is the duty of every Advocate of this Country to not to indulge in such practices.