May 11, 2019:
The demand is clearly without any legal or other foundation and was raised without caring for the established law or precedent just with a view to sensationalize a Complaint made by an ex employee against CJI given his powerful position.
Preface:
We have already covered two specific issues related to series on allegations against the CJI. We are trying to ascertain the factual and legal rationality of the entire episode.
Part-1 of the series was related to the requirement of legal representation of the woman complainant and the said Part-1 can be read here.
Part-2 of the Series was related to the requirement of giving copy of Panel Report to the woman complainant and the said Part-2 can be read here.
In this Part-3, we will discuss the much hyped issue of fairness. This primarily is premised on the powerful position of the CJI.
Demand made by a section of Media:
Since beginning, certain section in the media has been advocating and rather demanding that CJI Gogoi should have resigned or should have withdrawn from work as he is in highly powerful position and woman complainant would not be able to get justice in such situation. The CJI should either step down or should avoid the work.
Earlier Precedent on the issue:
Once a person named D.C. Saxena had initiated public interest litigation under Article 32 of the Constitution to direct Shri P.V. Narasimha Rao, the President of Indian National Congress and the former Prime Minister of the country, to pay a sum of Rs 8.29 lakhs and odd said to be due to the Union of India for use of Indian Air Force aircraft or helicopters from 1-10-1993 to 30-11-1993.
When Writ Petition No. 432 of 1995 was posted for hearing on 17-7-1995 before the Chief Justice of India and Justice S.C. Sen, the Solicitor General for India, Shri Dipankar P. Gupta was sent for and the Court directed him to have the averments verified to be correct and directed the petition to be listed after two weeks. On 7-8-1995, the writ petition came before the Bench comprising the CJI, Justice S.C. Sen and Justice K.S. Paripoornan.
The Solicitor General had placed the record before the Court and upon perusal thereof and after hearing the petitioner in person, the Bench summarily ‘dismissed’ the writ petition which had triggered the petitioner to file yet another writ petition, this time against the learned Chief Justice of India, Justice A.M. Ahmadi.
The Registry raised objections to its maintainability but, at the insistence of the petitioner, it was posted, with office objections, for hearing, as unregistered Writ Petition (C) No. D-17209 of 1995 on 13-1-1996 before a Bench of three learned Judges, viz., Justice J.S. Verma Justice N.P. Singh and Justice S.P. Bharucha.
The petitioner, again appearing in person, persisted to justify the averments made against the CJI, Justice A.M. Ahmadi in the writ petition.
In spite of the Court having pointed out that the averments were scandalous, the proceedings of the Court did indicate that the petitioner reiterated that he “stood by the averments made therein” and sought for declaration-
(1) that Justice A.M. Ahmadi is unfit to hold the office as Chief Justice of India;
(2) that he should be stripped of his citizenship;
(3) to direct registration of an FIR against him under various provisions of Indian Penal Code for committing forgery and fraud and under the Prevention of Corruption Act;
(4) to direct prosecution of him under the Prevention of Corruption Act;
(5) to direct him to defray from his personal pocket the expenses incurred by the petitioner in filing the two writ petitions, i.e., WP No. 432 of 1995 and the second writ petition;
(6) to direct Justice A.M. Ahmadi to reimburse from his pocket to the public exchequer the entire loss caused to the State, as a consequence of non-payment of the dues by Shri P.V. Narasimha Rao with interest at 18% per annum and
(7) other consequential directions.
When a three judges bench dealt with contempt against the petitioner, it started with the comment “In a clash of competing interests in constitutional contours, this case calls to strike a balance between the freedom of speech and expression, a salutary right in a liberal democratic society and paramount countervailing duty to maintain public confidence in the administration of justice”. The case was reported as D.C. Saxena (Dr) v. Hon'ble The Chief Justice of India, (1996) 5 SCC 216.
Specific Imputation against one earlier CJI:
The Supreme Court recorded the specific imputation against the CJI as “Regarding imputation 13, though he stated that he wished to make modification to it, in his amended version, he did not touch upon the same. Imputation 13 at page 8 reads thus: “Since no person can be a Judge in his own cause, the seniormost Judge of the Hon'ble Court may be permitted to constitute a Constitution Bench, for expeditious hearing of the petition excluding any Judge who owes his elevation to the Apex Court to Justice Ahmadi. Further during its pendency, Justice Ahmadi may be advised to proceed on leave, so that he may not directly or indirectly influence any of the Judges hearing the matter.”
In his preliminary submissions, he reiterates that: “The prayer is in strict conformity with the maxim cited earlier in the words of Lord Heward, C.J.” He justified it on the basis of Justice P.N. Bhagwati (as he then was), the senior most Judge's presiding over S.P. Gupta case [S.P. Gupta v. Union of India, 1981 Supp SCC 87] , i.e., First Judges case when Justice Chandrachud was imputed with some allegations. He also justified his quoting the advice given to Justice V. Ramaswami to proceed on leave when enquiry was pending against him under the Judges (Inquiry) Act, 1969. It would be seen that in this imputation, he categorically asserts and relies that Justice Ahmadi, Chief Justice of India would bring about influence directly or indirectly upon his colleagues when the matter was to be heard. While he is in the office, he also should not function as Chief Justice pending his second writ petition. The CJI also should not constitute any benches. That should be done by the senior most puisne Judge.
Any Judge appointed to this Court during his tenure as CJI should not hear the case as the CJI directly or indirectly would influence them when the case relating to him was dealt with. In other words, his imputation is that Judges appointed to the Supreme Court during the tenure of Justice A.M. Ahmadi as CJI, are amenable to influence in deciding the cases at the behest of the CJI as they owe their appointments to him.
In other words, as soon as a writ petition under Article 32 or petition under Article 136 was filed attributing motives or bias to the CJI (it would equally apply to any Judge) he should desist to perform judicial and administrative work. He should proceed on leave till that case is decided. The senior most puisne Judge should assume the work of the CJI”.
Observation of three judges Bench:
It is in this context that the three judges bench of the Supreme Court made the pertinent observation as “When imputations were made against the Chief Justice, the petitioner assumed, in our view, “wrongly” that the CJI cannot constitute benches nor should he discharge the functions of Chief Justice until the matter is decided. On appointment by the President by a warrant and on his taking oath of office, the CJI becomes entitled to discharge the functions and duties of that office including constitution of benches and assignment of judicial work to judges as per procedure.
This responsibility flows from the office and none including a litigant has right to demand for contra-position. As regards his personal disposition to hear a case by a bench of which he is a member, it is his own personal volition. The Chief Justice's prerogative to constitute benches and assignment of judicial business would not hinge on the whim of a litigant”.
Repercussion of demand by petitioner in that case:
In some other paragraph, the Supreme Court again noted the imputation No-13 that when an accusation is made against the presiding Judge, by implication, until the matter is decided, the Presiding Officer has to desist from discharging the judicial duties by his proceeding on leave and the senior most puisne Judge would assume the office of the Chief Justice.
The three judges bench then commented “This is a deliberate interference in the judicial management tending to sow disaffection in the efficacy of dispensation of justice”.
Observation on assumed influence by CJI:
Supreme Court also noted an accusation as “The further accusation that the Chief Justice of India should not constitute a Bench of the Judges appointed during his tenure so that “he (CJI)” “may not directly or indirectly influence any of the Judges hearing the matter”.
The three judges bench then commented “It would, thus, be in unequivocal loud expression that the contemnor attributed motives to the CJI that the Judges appointed during his tenure as Chief Justice are amenable to his influence in judicial adjudication and would decide the causes by pressure or influence directly or indirectly brought by the Chief Justice of India.
Equally, it is a corollary that these Judges are amenable to influence and thereby they do not decide the cases posted before them legally and objectively. The Court is subject to pressures and decides cases under influence. These accusations are flagrantly outrageous to scandalise the Court”.
Result from the judicial verdict of the earlier case:
The aforesaid clearly shows that it is a wrong assumption that if CJI faces any allegation, he cannot constitute benches nor should he discharge the functions of Chief Justice until the matter is decided. His authority flows from the constitution and none else including a litigant has any right to demand to the contrary.
The present case:
In the instant case, the woman complainant did not approach any judicial forum or the police authorities with the grievance of sexual allegations which a common woman would have done. Rather she utilized the media and letters to express her grievance.
In the earlier precedent, at least the petitioner had courage to approach the Supreme Court on judicial side by filing a writ petition. A writ petition has its inherent values and has to be placed at a higher pedestal than any media reporting or letter writing.
His demands even then were found to be unjustified when he expressed that CJI cannot constitute benches or should not discharge his functions or judges appointed in his tenure should not deal with the matters as they are susceptible to influence.
In the present case, the demand and concerns raises were/are apparently similar and are on lesser footing as only certain section of media is being utilized or the woman complainant has been issuing press release or writing letters. There is no reason why the earlier precedent in D.C. Saxena (Dr) v. Hon'ble The Chief Justice of India, (1996) 5 SCC 216 should not apply.
The demands clearly are without any foundation and are raised without caring for the law and apparently with a view to make a sensational victimization showing that CJI is in powerful position. There appears to be a need of ascertaining the law before allowing any issue to be made sensational by certain section of media.
We will cover other issues pertaining to the present episode in other parts of our series related to Legal and Factual rationality.
Read the judgment here:
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