CJI Controversy: Why It Is Important To Harmonise Judicial Independence And Absoluteness Of Natural Justice

CJI Controversy: Why It Is Important To Harmonise Judicial Independence And Absoluteness Of Natural Justice

by Yashdeep Chahal - Friday, May 17, 2019 03:59 PM IST
CJI Controversy: Why It Is Important To Harmonise Judicial Independence And Absoluteness Of Natural JusticeA view of India’s Supreme Court building (SAJAD HUSSAIN/AFP/Getty Images)
  • Natural justice is not a one-way traffic. It works equally in favour of judges as in favour of citizens.

    Unless established otherwise, real public interest lies in protecting the judiciary from unfounded abuses.

The recent controversy involving the Chief Justice of India has instrumentally ventured us into an uncharted territory. What broke in the form of a concurrent publication of a news article in four portals, gradually build up into a larger question on the mechanism to be followed in dealing with such allegations.

After a quick storm of allegation, stories, conjectures, an in-house inquiry, prejudiced articles in media and closure of the allegation, what we are left with is a cloud of basic questions, surmises and misinformation that strike at the root of the justice delivery system.

It is well settled that any allegation of any nature whatsoever on a sitting judge of higher judiciary has to go through a preliminary assessment by an in-house panel, usually referred to as the in-house committee that follows an in-house procedure. The emphasis on the word 'in-house' is crucial. By its inherent nature, an in-house committee necessarily consists of members from the house — members from the institution itself. It is in line with this settled procedure that the task of preliminary enquiry was entrusted to the puisne judges.

Therefore, it is difficult to accept that an allegation coming through the route of media should be directly entrusted to an outside committee for decision without even going through the prima facie requirements of the offence charged.

Mandate, Object And Scope Of An In-House Inquiry

The objective to be served through an in-house inquiry is to determine the existence of a 'real case' against the accused. The same procedure is followed in cases of contempt by judges of their own court or in cases of corruption. An in-house enquiry is not a trial, nor a judicial enquiry of the nature contemplated in the criminal procedure.

In the factual matrix of this case, the victim boycotted the inquiry after attending two to three hearings on the premise that she must be allowed a lawyer's assistance and that there must be an external member on the panel. Both these contentions sound to be in line with the general tenets of natural justice but within the legal and procedural framework that is followed in such cases, they cannot be sustained.

We must understand that a mere allegation against a sitting judge of the Supreme Court cannot form the basis for the court to subject a sitting judge to the scrutiny of an outsider. Any such step would not just be absurd but would also be extremely detrimental to judicial independence.

Moreover, it will defeat the very purpose of an in-house procedure. Judicial independence lies not in saving the judges from real misdeeds, it is to save the general public by protecting faith in the judicial organ of the state. Any act of subjection of a sitting judge to the scrutiny of an outsider would strike at the root of the future ability of sitting judges to deliver fearless justice.

Lawyer's Assistance

Had the committee been following strict procedures of evidence or examination in chief or cross examination, one would understand the need for a lawyer’s assistance. Here, the committee was following an informal procedure with a sole objective to determine the existence of a real case.

At the cost of repetition, it was not a trial, nor a judicial proceeding. On successful finding of a real case, the matter, of course, would have advanced to further stages wherein strict procedures and lawyer's assistance would have become imperative. But at the stage of preliminary assessment of an allegation, it would have been disproportionate to allow the indulgence of any person other than the victim.

Before the panel, the victim was free to tender her evidence and establish a prima facie ground of the allegation. Instead of furnishing her evidence (something she claimed to have in ready form in the affidavit), she chose to withdraw from the inquiry, thereby leading to the finding of no substance to support the allegations.

An in-house enquiry, like any criminal trial, is not expected to begin on the presumption of guilt. It was for the victim to infuse the element of probability of guilt in the minds of the panel of three judges. The burden upon her was not to prove the charge beyond doubt, it was merely to present the relevant material on record for the panel to start looking at the 'possibility' of guilt.

Material Irregularities Or Not?

Even if the procedure had irregularities, there is no reason to believe why she chose withdrawal over the placing of bare evidence before the bench to support her cause. In effect, she entirely gave up the stand just because the procedure was not favourable.

The Supreme Court, in C Ravichandran Iyer Vs Justice A M Bhattacharjee (1995) case, has categorically held that a claimant should first gather specific, authentic and acceptable material, which would show or tend to show that conduct on the part of a judge creating a feeling in the mind of a reasonable person doubting his honesty, integrity or impartiality.

Thereafter, the same ought to be presented before the judge/designated panel in camera in order to figure out the sufficiency of the material to indicate an impeachable behaviour. Once impeachable behaviour is found, the matter goes to Parliament and proceedings under the Judges (Inquiry) Act would follow. And if there is a yawning gap between proved misbehaviour and material on record, it would be appropriately dropped by an in-house procedure. There is no other mechanism, neither in the Constitution nor within the four corners of prudence.

At this stage, three basic questions beg for an answer.

Did she place the evidence before the bench? No!
Was she prohibited from placing evidence? No!
Was she denied any hearing? No!

One cannot deny the fact that 'ideally' the procedure followed could have been better. But was it absurd enough to simply give up the allegation? Certainly not. As far as this domain is concerned, there is a void in the law and in absence of a codified procedure or a precedent, one cannot expect the highest judicial office of the country to be scrutinised before a committee of outsiders merely because an allegation has been made. Such instances demand extreme caution. These are not instances of mass justice.

Public faith in the judicial system of the country is paramount, for this is one organ that not only adjudicates disputes between the parties but also ensures the functioning of other two organs within the four corners of the Constitution. Without clinching evidence in support of the claim, we cannot expect the apex court to subject the Chief Justice of India to the scrutiny of an ordinary procedure.

Are Principles Of Natural Justice Absolute?

A major hue and cry was raised and text-book recommendations were made by various authors on the procedure that ought to have been followed. That legal assistance, nemo judex in causa sua, open court etc, are well established principles of natural justice is undeniable.

However, if one is to believe that there can be no exceptions to such principles in larger public interest, it would be manifestly absurd. In light of the doctrines of 'empty formality', 'prejudice to public interest' and 'necessity', it is settled law that such principles could be excluded. In KSRTC Vs S G Kotturappa case, SC held:

The question as to what extent principles of natural justice are required to be complied within a particular case would depend on fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore, not required to be complied with, if it will lead to a mere empty formality.

The in-house procedure has been evolved on these doctrines that place the sanctity of judicial independence and fearless delivery of justice on a higher pedestal in the face of rigid principles of natural justice. However, this is not absolute and once a prima facie case is established, these doctrines shall give way to natural justice and law would take normal course.

Moreover, the confidentiality of this procedure is also driven by the doctrine of necessitas non have legem — necessity understands no law, because what is at stake is the very foundation of the judicial system of the country.

Public Duty Towards The Constitution

Criticism of the judiciary, where it is due, is as important as any other organ of governance. But being citizens, we must understand that it is in our paramount interest that judicial independence is preserved. Criticism must not turn into scurrilous abuse without any evidence that can stand the test of legal proof.

Judges, both in their personal and professional life, are expected to maintain a high standard of probity and conduct, and are not equipped to clarify or cleanse their image in media. Natural justice is not a one-way traffic. It works equally in favour of judges as in favour of citizens. Unless established otherwise, real public interest lies in protecting the judiciary from unfounded abuses. This is what constitutionalism demands from the citizenry.

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