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Matters of trust

Judges must recuse themselves from hearing cases where there is potential conflict of interest

Written by Dushyant Dave | Published: January 17, 2018 12:00 am
Supreme Court, CBI Judge Loya's Death, Loya's Death, Amit Shah, CJI Dipak Mishra, Indian Express, Indian Express News The Supreme Court. (Express Photo by Tashi Tobgyal)

On May 7, 1997, the full bench of the Supreme Court adopted the document, Restatement of Values of Judicial Life. It emphasises that: “Justice must not merely be done but it must also be seen to be done… ; a judge should practice a degree of aloofness consistent with the dignity of his office; a judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned; every judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.”

The ongoing debate on the administrative powers of the Chief Justice of India (CJI) to constitute benches and allocate matters must be seen in the light of these stated values. Today, many judges invite not just constitutional functionaries but political leaders to personal functions.

It is also said certain political leaders visit judges at their residences regularly. This raises a serious question about their relationship with those leaders. Should such judges hear and decide matters that have direct or indirect connection with such persons, their political parties and ideologies? If the SC’s statement of values requires judges to maintain a degree of aloofness consistent with the dignity of office and prohibits the judge from hearing and deciding a matter in which a friend is concerned, then that is the end of it.

The CJI must carefully mark the matters, if at all he must do so personally, and be conscious of such relationships. He must require his colleagues to disclose the same in advance to help him use his administrative discretion justly. If this is missed out, the judge himself must disclose when the matter is placed before him and recuse. Unfortunately, judges have stopped doing this in the recent past. There have been instances when politicans who figure in cases are seen in social occasions with sitting judges. That has to be factored in while allocating cases to them and these judges need to recuse themselves.

Justice B.H. Loya’s death is a serious matter. It started when the Supreme Court issued a notice after hearing Harish Salve along with others on the writ petition filed by Rubabuddin Sheikh seeking an independent inquiry into the killings of three persons on January 22, 2007. By a series of orders, the SC directed investigations initially by Gujarat Police into the killings of Sohrabuddin and his wife, Kausarbi.

On January 12, 2010, the Court transferred the investigation to the CBI directing, “The CBI authorities shall investigate all aspects of the case relating to the killing of Sohrabuddin and his wife Kausarbi including the alleged possibility of a larger conspiracy”. Subsequently, on April 8, 2011, the SC directed that the case related to the killing of Tulsiram Prajapati be also handed over to CBI. While confirming bail granted to senior BJP leader Amit Shah on September 27, 2012, the SC transferred the case from Ahmedabad to Mumbai directing the Bombay High Court, “the administrative committee would assign the case to a court where the trial may be concluded judiciously, in accordance with law, and without any delay. The administrative committee would also ensure that the trial should be conducted from beginning to end by the same officer”.

However, Shah, among others, was discharged. According to reports, Judge J.T. Utpat had on June 6, 2014, declined Shah’s application for exemption from appearance and fixed the matter on June 20 when again he failed to appear. The matter was adjourned to June 26. But on June 25, 2014, the administrative committee headed by Chief Justice Mohit Shah of Bombay High Court, transferred Judge Utpat. Subsequently Judge Loya took charge and on October 31, 2014, he had enquired as to why Shah was not present in court, though exempted, as he was in Mumbai and fixed the date on December 15, 2014. Judge Loya, unfortunately, died on the night of November 30, 2014 at Nagpur. His successor, Justice M.B. Gosavi, discharged Shah on December 30, 2014.

The CBI did not challenge the said order. Rubabuddin appealed but withdrew it. Harsh Mander, an activist, filed an application in the Bombay HC which was dismissed. A special leave petition filed before the SC was dismissed on August 1, 2016. The order shows that Harish Salve appeared for Shah. Thus, Salve set the criminal investigation in motion for the murders and ended up getting one of the accused discharged before the SC. His appearance for Government of Maharashtra on Tuesday in the same case makes it even worse.

The same CBI on September 19, 2017, registered an FIR in Delhi under the Prevention of Corruption Act in respect of a scam relating to a medical college whose SLPs and writ petition were heard in the SC by a Bench presided by CJI Dipak Misra. The CBI’s FIR records that Bishwanath Agarwala of Bhubaneswar claimed close contact with “senior relevant public functionaries and assured that he would get the matter favourably settled demanding huge gratification for inducing the public servants by corrupt and illegal means in lieu of the aforesaid help”. An independent enquiry into this FIR was stopped under orders of the SC, first by the Constitution bench presided by the CJI on November 10, 2017, and later by other benches.

Incidentally, the CBI appointed a new additional director, Rakesh Asthana, whose appointment was challenged in the SC. The matter came up before a Bench of Justice Gogoi and Justice Sinha when one of the judges recused. The matter was placed not before the Bench of Justice Gogoi on November 17, 2017. Another bench dismissed the challenge.

The issue is not that other honourable judges are not trustworthy but does the CJI think that senior judges are not worthy of trust to be assigned important and sensitive matters?

The writer is a senior advocate and former president of the Supreme Court Bar Association

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  1. Seshubabu Kilambi
    Jan 17, 2018 at 9:39 pm
    Appointment as well as allocation of cases should be made by people and not political parties or executive... SC is being clandestinely saffronised and judiciary desttuyd
    (2)(5)
    Reply
    1. Vish Subramanyam
      Jan 17, 2018 at 8:11 pm
      Dushyant, what about lawyers like yourself.? How would justice be served by screaming, biased, lop-sided, publicity-mongering lawyers, vitiating court atmosphere? There should be a rule that such lawyers with vested interests, should also recuse themselves, in the interest of justice.
      (4)(8)
      Reply
      1. V.S. Malhotra
        Jan 17, 2018 at 5:27 pm
        This problem has unnecessarily been dragged too long. I am sure that both the CJI and the four judges who have raised the issue, they all feel that all five of them are public servants and are working for the common good. None of them has any axe of his own to grind. If so they can sit together and work out a way of allocating cases acceptable to all of them.
        (1)(7)
        Reply
        1. Iswarchandra Kundu
          Jan 17, 2018 at 5:17 pm
          HOW MR CHELAMESWAR BE FAITHFUL, AS HE MET D RAJA AFTER PRESSS CONFERENCE
          (10)(11)
          Reply
          1. P
            Parth
            Jan 17, 2018 at 4:50 pm
            Every Indian (including the judges) have the interests of the nation at heart. If the theory of conflict of interest is stretched to absurdity no case could be hear or decided by the judges.
            (2)(5)
            Reply
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