Chief Justice Warren E. Burger of the US Supreme Court made a profound statement that “A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and it is for the subordinate judiciary by its action and the high court by its appropriate control to ensure it.”

That is why it was once correctly said, “If you once forfeit the confidence of your fellow citizens you can never regain their respect and esteem.”

Law Commission in its Fourteenth Report had forewarned, “If the public is to give profound respect to the judges the judges should by their conduct try and observe it; not by word or deed should they give cause for the people that they do not deserve the pedestal on which we expect the public to place them.”

It is important for citizens, particularly those in the legal system, lawyers, judges, jurists and law students, to understand the seriousness of the matter involving CBI’s FIR dated September 19, 2017, and how independent investigations into it are being stalled by the highest judiciary. CBI’s FIR is filed under Section 8 of the Prevention of Corruption Act, 1988 read with Section 120B of the Indian Penal Code and Column 7 categorically mentions six accused but in thereafter lists as unknown accused the following:

“other unknown public servants and private person”

The FIR is based on “reliable information” and records as under:

“Information further revealed that Prasad Education Trust filed a Writ Petition (Civil) No 797/2017 in the Apex Court. Shri B. P Yadav, in furtherance of the said conspiracy requested Shri. I. M Quddusi and Smt. Bhawana Pandey who assured to get the matter settled in this Apex Court through their contacts and they further engaged Shri. Biswanath Agrawala, a private person R/o HIG-136, Phase 1, Kanan Vihar, Chandrashakerpur Bhuneneshwar, Odisha for getting the matter settled in the Apex Court Shri. Biswanath Agrawala claimed very close contact with the senor relevant public functionaries and assured that he would get the matter favourably settled . However, they demanded huge gratification for inducing the public servants by corrupt and illegal means in lieu of the aforesaid help. Information further revealed that in pursuance of the aforesaid criminal conspiracy, Shri B. P Yadav and Shri Palash Yadav along with Shri. I M Quddusi, Smt. Bhawana Pandey, Shri. Sudhir Giri are likely to meet Shri Biswanath Agrawala for delivering the agreed illegal gratification to Shri. Biswanath Agrawala at Delhi shortly.”

The FIR was filed a day after the Supreme Court disposed of writ petition (civil) No 797 of 2017 granting partial relief to the petitioners therein. The timing, therefore, assumes great significance. Interestingly, CBI raided several places and appears to have recovered close to Rs 2 crore in cash including Rs 1 crore which was handed over by hawala operator to the aide of the retired judge and also recovered several incriminating documents as reported in the media on September 20, 2017. This means that on the day of the filing of the FIR and arrest CBI had recovered such large amounts in cash from the accused which was collected in the name of their “contact with senior relevant public functionaries” to get the matter “favourably settled.”

The question is where does the truth lie. Was there really some evidence of corruption at the highest level of public functionaries as alleged or had the CBI filed a self-serving FIR to bring the Supreme Court in disrepute and use this as pressure tactic on the Supreme Court to serve interests of the executive. The answer to this can be found only through a thorough inquiry by an independent body. After all, CBI is a premier investigating agency and day in and day out the Supreme Court justifies its action. The prayer in writ petition no 176 of 2017 filed by Ms Kamini Jaiswal is precisely this,

“(a) Issue writ of mandamus or any other appropriate writ, order or direction of similar nature to constitute a Special Investigation Team headed by a retired Chief Justice of India to investigate the offences arising out of FIR being RC.10(A)/2017/AC.III dated 19.09.2017, recorded at New Delhi by the CBI and those connected therewith and take consequential action thereafter in accordance with law; ”

First ground in the writ petition is in following terms:

“(a) Because leaving the investigation with the CBI can seriously compromise the independence of the judiciary. In order to protect the independence of the judiciary and its integrity it is essential that the matter concerning the allegations of corruption at the highest level ought to be investigated by a Special Investigation Team headed by a former Chief Justice of India. If the CBI, which is controlled by the Government, is allowed to undertake the investigation in the present matter, the independence of the judiciary is likely to be compromised.”

On November 9, when the matter was mentioned before the bench of hon’ble Justice Jasti Chelameswar and hon’ble Justice Abdul Nazeer it was done as per prevailing practice of the day, on account of the constitution bench headed by the hon’ble Chief Justice of India being in session. A large number of matters was being mentioned before this bench for couple of weeks due to the above reason. There was no impropriety whatsoever in the said bench having permitted the mentioning. Handbook on Practice and Procedure and Office Procedure 2017 published by the Supreme Court of India categorically provides in the chapter titled, “Mention Memo/Listing Proforma” as under:

“1. Any party or advocate on-record desirous of out of turn listing or early hearing of an admission hearing case or application on the ground of urgency may make oral mention before the Bench at 10.30 a.m. by way of a prescribed listing proforma/mention memo in Form No.35. 8. Mentioning of cases or applications, oral or listed, shall not take place before a Constitution Bench. 9. In case mentioning is not permitted on a particular day before the Bench presided over by the Chief Justice, it may take place before the senior most Bench of that day or as ordered by the Chief Justice.”

The order passed by the hon’ble bench directing, inter alia to place the matter before “the Constitution Bench of the first five Judges in the order of seniority of this Court” was a just and proper order in the facts and circumstances of the case. The FIR was in respect of a writ petition (civil) 797 of 2017 which was disposed of by a bench compromising of hon’ble the Chief Justice, hon’ble Justice A. M Khanwilkar and hon’ble Justice D. Y Chandrachud. Under the circumstances, it would have been terribly embarrassing and grossly improper that the matter should have been placed before a bench comprising the hon’ble judges who heard that matter. Propriety and judicial decorum demanded this. The writ petition itself had categorically stated that, “Since the allegation pertains to a case which was being heard by a Bench headed by the Hon’ble Chief Justice of India, propriety demands that the Hon’ble Chief Justice of India should not deal with the present petition either on the judicial side or even on the administrative side.”

It is well settled that if a party has a genuine apprehension about the likelihood of bias on the part of a judge, party can make a reasonable assertion to that effect and so long as it is made bona fide, it must be acceded to. In such cases, it is not the viewpoint of the judge concerned that matters. In Ranjit Thakur vs Union of India, (1987) 4 SCC 611, the Supreme Court had categorically held that, “As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however, honestly, “Am I biased?”; but to look at the mind of the party before him.”

Two salutary principles much developed in legal jurisprudence are, “Nemo judex in causa sua/ no-one should be a judge in his own cause” and “justice must not only be done but must also seem to be done”. (See A.K. Kraipak vs Union of India, (1969) 2 SCC 262, P.D. Dinakaran (1) vs Judges Inquiry Committee, (2011) 8 SCC 380 and Ashok Kumar Yadav vs State of Haryana, (1985) 4 SCC 417).

It was for this reason that the request was made to the hon’ble bench to constitute a special bench and preferably a bench of five senior-most hon’ble judges to hear the matter and it must be said in all fairness to the bench that it did accept such a request readily and ordered constitution of such a bench to hear the matter on Monday the 13th. There was nothing illegal much less improper about this judicial order which was binding on all including the hon’ble Chief Justice of India as also on the Registry of the Supreme Court. It is settled law that order passed by any court without jurisdiction is a good order to be followed and can only be set aside in accordance with law and procedure.

The events that took place on Friday, November 10, resulting in constitution of a special bench by the hon’ble Chief Justice of India which did not even include hon’ble Justice Chelameswar and hon’ble Justice Nazeer, the actual conduct of the proceedings in the court and the order passed thereon reflect complete negation of the rule of law. The bench was coram non judice and the orders passed thereon are wholly unconstitutional, illegal, improper and unjust. The hon’ble chief justice, by constituting the bench on the administrative side and by participating in it has committed gross improprieties resulting in the order being wholly vitiated. The proceedings of November 10 reflect the saddest day in the history of this great institution, the Supreme Court of India.

In doing so the five-judge bench relied upon the judgment of the Supreme Court in State of Rajasthan vs Prakash Chand and others which was wholly inapplicable to the facts of the case. There the order passed by the single judge of the high court and set aside by the Supreme Court was illegal to the core. The law laid down therein is in respect of the administrative powers of the chief justice of high courts. The Supreme Court Rules, 2013 and the constitutional provisions contained in Chapter IV provide a completely different picture. But interestingly, even in that case, the Supreme Court set aside the order of the high court on the ground of judicial impropriety. Even though the Chief Justice of India is the ‘Master of Roll’, his powers are not unguided, unbridled and uncanalised and therefore he cannot act arbitrarily. The law on the subject may be vague but the salutary principles recognised in legal jurisprudence over centuries command that the Chief Justice of India stays his hands off this and the connected writ petitions, administratively and/or judicially. There is plethora of law declared by the Supreme Court setting aside hundreds, if not thousands, of orders passed by the executive on the ground that the orders were passed by officers who ought to have recused themselves from passing the orders on one ground or the other. The argument that the bench headed by Justice Chelameswar ought to have tagged the Jaiswal’s petition with the CJAR petition which was already listed before the bench headed by Justice Sikri, is not justifiable. In fact, CJI should not have passed an administrative order dealing with such writ petition based on the principle of ‘likelihood of bias’. In Ranjit Thakur’s case the Supreme Court approvingly referred to observations of Frankfurter, J. in Public Utilities Commission of the District of Columbia vs Pollak [343 US 451] where he said,

“The judicial process demands that a Judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. …. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, Judges recuse themselves. They do not sit in judgment.”

The Supreme Court held,

“Thus tested the conclusion becomes inescapable that, having regard to the antecedent events, the participation of Respondent 4 in the court-martial rendered the proceedings coram non- judice.”

In Supreme Court Advocates-on-Record Assn. vs Union of India (Recusal Matter), (2016) 5 SCC 808, constitution bench of Supreme Court held inter alia,

“25.3. The Pinochet case added a new category i.e. that the Judge is automatically disqualified from hearing a case where the Judge is interested in a cause which is being promoted by one of the parties to the case.”

Interestingly CJI Misra in a 2013 decision while dismissing appeal of Union of India against Sanjay Jethi, a colonel in the army, himself held,

“51. … While dealing with the plea of bias advanced by the delinquent officer or an accused a court or tribunal is required to adopt a rational approach keeping in view the basic concept of legitimacy of interdiction in such matters, for the challenge of bias, when sustained, makes the whole proceeding or order a nullity, the same being coram non judice. One has to keep oneself alive to the relevant aspects while accepting the plea of bias. It is to be kept in mind that what is relevant is actually the reasonableness of the apprehension in this regard in the mind of such a party or an impression would go that the decision is dented and affected by bias. To adjudge the attractability of plea of bias a tribunal or a court is required to adopt a deliberative and logical thinking based on the acceptable touchstone and parameters for testing such a plea and not to be guided or moved by emotions or for that matter by one’s individual perception or misguided intuition”

Surely, with such settled law Chief Justice Misra could not and ought not to have dealt with the writ petition in any manner whatsoever.

Also read: No One Should Be a Judge in his Own Cause

In K. Veeraswami vs Union of India, (1991) 3 SCC 655, the constitution bench of the Supreme Court while dealing with a slightly different situation relating to lodging of criminal cases against the judges of high court and the Supreme Court held that while mostly the Chief Justice of India should be consulted, if the Chief Justice of India himself is the person against whom the allegations of criminal misconduct are received the government shall consult any other judge or judges of the Supreme Court, thereby clearly dis-entitling the Chief Justice to be a judge in his own cause.

By constituting the special bench and not allowing the bench constituted under a valid judicial order to hear the case, the Chief Justice of India has declared his lack of faith in five of his senior most colleagues. On the other hand, in selecting a bench of his own choice the Chief Justice of India has done a great disservice to the institution and to the country. Sadly, the four hon’ble judges who sat on the bench, far from recusing themselves and counselling the hon’ble Chief Justice of India to the right path and allowing the duly constituted constitution bench to hear the matter to save the dignity of the institution, joined in passing the order.

The scars inflicted on the foundation of this institution must be healed as quickly as possible. Otherwise, the credibility of this institution, its acceptability and the love and respect it commands amongst the citizens will be seriously jeopardised.

Let us remind ourselves of the words of B. R. Ambedkar, one of the greatest Indians, who said before the Constituent Assembly on May 24, 1949:

“With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of Judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that that is also a dangerous proposition.”

The opinions expressed in this article are the personal opinions of the author.

Dushyant Dave is a senior advocate and former president of the Supreme Court Bar Association.

This article originally appeared on LiveLaw.