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Chief Justice and the curious case of in causa sua

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Chief Justice of India is the head of the supreme court and is responsible for allocation of cases and appointment of constitutional benches i.e. he decides which justice is going to be on which bench. Audi alteram partem (the right to a fair hearing) is the technical term used in the English Law for the natural hearing of any case. I am no lawyer but this, in my little understanding, means to provide fair justice even the perception of bias could not be observed in any judgment or verdict of the court. This was to instill confidence in the public and keep the judges in check.

Now, the case of Mr. Prashant Bhushan. I, like so many others, am hearing things from media. Mr. Bhushan, a supreme court legacy lawyer, has some knowledge of the law. He, with his years of practice and experience, tweeted two personal remarks at the Chief Justice of India. He did not question the legal expertise of the court or question any verdict. He made two remarks which the court explained in its hearing stating the aggressive nature of tweets which “shakes the very foundation of the judiciary in the nation”. The tweets, aggressively, questioned on a social platform where is the helmet if on a bike – same way our ministers comment on the short skirts asking if this is the reason of the increasing number of rapes in the nation. In another tweet questioned the work-ethic of the CJI during ‘lockdown’ – same way Mr. Rahul Gandhi questions intentions and work-ethics of every non-congress politician and government during COVID-19 ‘lockdown’ or Dr. Patra calls out Mr. Gandhi on his ‘meditation’ trips to Thailand; this, of course, comes within the purview of ‘Right to Expression’. If Mr. Bhushan is found guilty, the court will punish him, rightly so. No one in the country should be able to contempt the court ‘criminally’ and get away with it; to hell with his legacy, education, and political reach.

While researching, Wikipedia has an interesting label named “2018 crisis”. In Campaign for Judicial Accountability and Reforms case – corruption scandal in medical colleges in Lucknow; the corruption allegations cast an aspersion on the highest offices of the Supreme Court. In a period of two hearings, the roster of presiding judge was changed from Jasti Chelameswar, the senior-most judge after Misra to AK Sikri. “The same afternoon the matter was suddenly heard by a Constitutional Bench headed by the Hon’ble Chief Justice of India and junior judges hand-picked by him.” The CJI pronounced the order, which emphasized that the chief justice was the master of the roster, that any order contravening the CJI’s administrative power was null and void, and that the CJAR petition would be heard by a new bench constituted by CJI Misra.

Another case in point is a petition for investigation of the death of Justice Loya presiding ever Sohrbuddin Encounter case in which BJP president Mr. Amit Shah is the main accused. It was then, on 12th January 2018 (the case was listed on 11th January), four judges of the Supreme Court – Justice Jasti Chelameswar, the senior-most judge after CJI Misra; Justice Ranjan Gogoi, next CJI; Justice Madan Lokur and Justice Kurian Joseph; in an unprecedented press conference said  “We tried to collectively persuade the chief justice that certain things are not in order and therefore you should take remedial measures….Unfortunately, our efforts failed.” He also said, “that unless this institution is preserved and it maintains its equanimity, democracy will not survive in this country.” Interestingly, CJI Gogoi was nominated to Rajya Sabha (the Upper House of Parliament). Then CJI Gogoi gave the landmark verdict of Ayodhya dispute on November 9th, 2019, 8 days prior to his retirement on 17th November 2019.

A case of sexual harassment was filed against the then CJI Gogoi on 10-11 October 2018. In an extraordinary rush to provide justice, the court was opened on a holiday (Saturday), and as per the notice brought out by SC, a bench of three judges was constituted by CJI, presided by the CJI; in a case, he was allegedly the main accused. The CJI described the allegations as unbelievable, and it was beneath his dignity to even deny such allegations. Oh, and the records did not indicate the presence of CJI on the panel. He was cleared by the three-judge in-house inquiry panel, headed by Justice Bodbe – who later succeeded him.

 I have carefully not explained the curious case of in causa sua. Nemo judex in causa sua is a legal maxim that means ‘no one ought to be a judge in his own cause’. We know that we are not in the times of Premchand that panch will be parmeshwar; and in that case should we not maintain a panel of retired judges to preside over cases of justices. Is it too much to ask of a country where Judiciary is the third pillar for democracy? 

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