Are judges above the law? Rising trend of individual heroism is undermining the institution

The Chief Justice of Bangladesh had to resign under pressure from Prime Minister Sheikh Hasina, and Pakistan’s Supreme Court (SC) ousted Prime Minister Nawaz Sharif after Panama Papers. Is the judicial political system in India going through a similar turmoil? Scams pertaining to medical education, Vyapam and deemed universities highlight the rot in the education sector which has engulfed the SC. The medical college scam has reached the SC.

A lot of powerful people could have been exposed, but sadly the Constitution Bench of the apex court shifted the battle from corruption to roster-allocation. If the Chief Justice is indeed the master of the roster, what happens to the public interest matters that are taken up suo moto by other judges? In such cases, it is the judge who takes up the matter, and hence the particular judge decides the roster as well as the listing. Should suo moto cases taken up till date now be rendered void? It could well be that the dictum is ultra vires of Rule 12 (1) (a) under the Chapter PIL of Supreme Court Rules 2013.  

It is unfortunate that the administrative powers of the SC have been used to usurp its judicial mandate. A circular issued on November 10 states that mentioning of unallocated matters can be made before the Chief Justice only. What about the days when the Chief Justice of India (CJI) is unavailable? Justice Dipak Misra, being in Court No. 2 himself allowed several mentioning, including by Senior Advocates. How can the mentioning by Senior Advocates be stopped by an oral direction of the CJI and a Constitution Bench required to state that the Chief Justice is the master of the roster?

Justice Misra and Jasti Chelameswar were appointed to the SC on the same day. In his three-page order, Justice Chelameswar detailed a photocopy of the proceedings purportedly issued by the Chief Justice on November 6. In the circumstances, it is now questionable as to why such a pre-dated note was delivered while the proceedings were on. The note does not detail any consultation with other judges and it’s also not clear if it was delivered to all the judges. The happenings before the SC shall be etched in eternity and follow the court like the ghost of the ADM Jabalpur case. 

It is worthwhile to note that there is no provision of law for intra-court appeal against the order passed by the SC Bench. Justice Chelameswar’s order could only have been set aside through due process by a review and then a curative petition. 

It is important to note that the referral to the CJI by Justice Sikri’s bench did not contain any reasons and did not frame any substantial question of law. The Constitution Bench passed an order stating that any other contrary order passed by any bench is set aside. Why did the Constitution Bench circumvent the law to bypass the judicial order passed by the second seniormost judge which was binding on all as per Constitutional provisions? Remarkably, the judgement of the three-judge bench, formed for Kamini Jaiswal’s petition, held that the principle of ‘No one can judge his own cause’ does not apply to the Chief Justice.  

The rising trend of individual heroism in the judiciary as evidenced in the SC is undermining the institution. It is settled law that an FIR cannot be directly registered against any judge but can the same be treated as deemed innocence? After the explosive Radia tapes, judges had the opportunity in Kalikho Pul’s matter to break apart the corrupt nexus but judiciary, as well as the government, failed to act. Prashant Bhushan in a tweet has said that the evidence is in six trunks and the calls record show “Biswanath Agarwal from Orrisa saying he will get the work done from ‘Captain who has all India jurisdiction.”  Named in the FIR, Sudhir Giri’s medical college was denied permission by Delhi HC in 2015, which had said, that there “can be no compliance of, to say the least, malpractices, if not fraud, deceit, and misrepresentation, in seeking approval.”

However, his college got the requisite permission after the SC formed an Oversight Committee and was further granted relief by a Bench headed by Chief Justice Misra. Former judge Quddusi, who is the main accused and may have the knowledge of the big fishes of the medical scam, was able to get the bail. So how is that the unnamed will now go to jail? 

The SC correctly says that no FIR can be registered even against a magistrate, yet sitting HC judge Karnan was sentenced to jail. Former Law Minister Shanti Bhushan had openly claimed that eight Chief Justices were corrupt.

Equality again took a beating when the SC refused to initiate proceedings, despite holding the matter as contemptuous. Two years after the NJAC verdict, Haryana judiciary paper leak scam shows how job aspirants are ready to pay Rs 1 crore to be appointed as Additional District Judges. Two of the five judges of the constitution bench that struck down NJAC in 2015 criticised the collegium system, which lacks transparency and accountability. Of the judges selected from the opaque system, five form the Collegium to select other judges. Of these five, the Chief Justice has been held to be the master of the roster. Will the master also claim responsibility for the mess that is plaguing the entire judiciary? 

The author is a Supreme Court lawyer and an expert in Constitutional affairs. Views expressed are personal.