In Dismissing Bribery Probe, SC Equates Request for Recusal of Judges With Contempt of Court // Utkarsh Srivastava - SC is creating a dangerous aura of arrogant infallibility around itself

A request for recusal of a judge is either accepted or refused, with reasons. The Supreme Court, on Tuesday, set the bar on those who seek recusal of judges very high – by making it appear as though they should be prepared to face proceedings for contempt of court as well. This ‘chilling effect’ on seeking recusal was apparent in the judgment delivered by a three-judge bench which dismissed the writ petition filed by advocate Kamini Jaiswal – who sought an independent probe into an alleged attempt to bribe judges to settle a case before the court.

The case was heard by Justices R.K. Agrawal, Arun Mishra, and A.M. Khanwilkar on Monday afternoon. The judges took less than 24 hours to deliver their verdict, which runs to 38 pages. Authored by Justice Mishra, the judgment is a classic instance of how the judiciary can not just stonewall criticism but put its critics in the firing line. Although the bench found Jaiswal’s petition and averments contemptuous, it refrained from initiating proceedings against her and her counsel. The bench orally observed that it was doing so in order to work together for “this great institution”.
Ironically, Monday’s proceedings were not on the merits of Jaiswal’s petition, as both the bench and the arguing counsel ended up debating the so-called issue of propriety of filing two identical writ petitions on the issue – and the extent of guilt of the petitioners in this aberration.

Thus the “tearing hurry” in filing the second writ petition by Kamini Jaiswal, and seeking its hearing in court No.2 on November 9, which set off the current crisis was repeatedly questioned by the bench. Prashant Bhushan answered this by admitting that they did so because they genuinely believed that Chief Justice Dipak Misra’s administrative decision of listing the first writ petition before court No.6 rather than court No.2 was improper, especially because of their plea that he ought to recuse himself both judicially and administratively in the matter. In support of their contention, he pointed out that the Central Bureau of Investigation’s FIR filed on September 19 cast a shadow on the judges who heard the original medical college matter, although it did not name any judges. Justice Arun Mishra, however, equated the “shadow of doubt on the judges” with a contemptuous imputation on the part of the petitioners.
Dubious basis: In his response, Bhushan questioned the “tearing hurry” on the part of the five-judge constitution bench which assembled at short notice on November 10 to annul court No. 2’s decision referring the matter to a constitution bench of the court’s five senior-most  judges. Justice Arun Mishra’s judgment has a curious explanation for this “tearing hurry” on the part of the bench. 

When two coordinate benches of the court give two conflicting decisions about a related issue, it is generally referred to the chief justice, for constituting a larger bench to resolve the difference.
So, what was the difference in the decisions of the two coordinate benches, which the constitution bench had to resolve on November 10? On November 9, the bench of Justices J. Chelameswar and S. Abdul Nazeer, found it appropriate that Kamini Jaiswal’s petition be heard by the first five judges of the Supreme Court in terms of seniority, in view of the disturbing allegations in the FIR, which pertain to the court. On the forenoon of November 10, Justices A.K. Sikri and Ashok Bhushan in court no. 6 heard the first petition filed by the Campaign for Judicial Accountability and Reforms on the same matter, which was directed to be listed before them on November 8 by the chief justice, after being mentioned before court No.2.

The Sikri-Bhushan bench agreed that the allegations in the FIR were serious, but expressed its anguish that Jaiswal’s petition, which was similar to CJAR’s earlier one, was not tagged with it. The fact that court No.2 directed its hearing by a constitution bench of the first five judges on November 9 was also seen as a sign that the petitioners and court No.2 had no trust in court No. 6. After expressing its pain, however, the bench took note of the constitution bench hearing on the second petition, scheduled on November 13, and said: “Let the matter be placed before the chief justice for passing appropriate orders for listing this matter.”

It is these two orders that the chief justice found conflicting with one another. A bare reading of Sikri-Bhushan bench’s order, however, would suggest that it would not be averse to tagging the CJAR petition along with Kamini Jaiswal’s so that both could be heard by the constitution bench which was scheduled to meet on November 13. It only wanted the administrative decision of listing it before that bench to be taken by the chief justice. As Justice Arun Mishra’s judgment on Tuesday reveals, it is this non-existent disagreement between the two coordinate benches which became the basis for convening the constitution bench at a short notice. November 10 was the last working day before the scheduled constitution bench’s hearing on November 13.

The non-existent disagreement between the two coordinate benches thus provided the rationale for the November 10 constitution bench making the order of court No. 2 ineffective. Curiously, the November 10 order of the constitution bench  does not explain this rationale, which seems to be an after-thought… read more:
https://thewire.in/197056/dismissing-bribery-probe-sc-equates-request-recusal-judges-contempt-court/


Utkarsh Srivastava - SC is creating a dangerous aura of arrogant infallibility around itself
The matter that is commonly becoming known as the 'judges bribery case' took another turn on Tuesday as a three-judge bench dismissed Kamini Jaiswal's petition asking for an SIT probe into allegations of bribery against judges in the apex court. The court started its judgment on Tuesday with the words, "The facts are disturbing in the instant case." And they most certainly are. Unfortunately, that's not all that's disturbing. The Supreme Court has refused to look at the extraordinary circumstances surrounding the matter and has given convention higher standing than the essential principle of "no one can be a judge in their own cause"

Recusal cannot be asked on ground of conflict of interest: Even without proper investigations into the matter, the court is convinced there is no conflict of interest in this case. It then takes the issue one step further when it says that "recusal of a judge cannot be asked on the ground of conflict of interest". It also settled the legal position that the Chief Justice of India (CJI) would assign a case to a bench even if there were allegations against him in the matter. The brashness of these directions is stunning. While the CJI has indeed not been named in the FIR, the fact that he is associated with the case means that letting him pick the judges would allow fingers to be pointed and rumours to spread. 

This can easily be remedied by taking the CJI out of the process. Further, while the CJI has powers mostly on the administrative side (his judicial powers are the same as the other judges), being the senior-most judge means that other judges would rarely assert themselves against him. All this could cause the faith of the people in the judiciary to dip, something the apex court has been very keen on avoiding… read more:
http://www.firstpost.com/india/judges-bribery-case-supreme-court-is-creating-a-dangerous-aura-of-arrogant-infallibility-around-itself-4210531.html

see also



Popular posts from this blog

Third degree torture used on Maruti workers: Rights body

Haruki Murakami: On seeing the 100% perfect girl one beautiful April morning

The Almond Trees by Albert Camus (1940)

Satyagraha - An answer to modern nihilism

Rudyard Kipling: critical essay by George Orwell (1942)

Three Versions of Judas: Jorge Luis Borges

Goodbye Sadiq al-Azm, lone Syrian Marxist against the Assad regime