Breaking: ‘It was a blatant case of not just judicial impropriety, but also smacks of 'dishonest motive', says Prashant Bhushan

It was on March 4, 2014 that Live Law reported that Senior Advocate Dushyant Dave had addressed a letter to the Chief Justice of India taking serious exception to the manner in which a 2-judge Bench of the Apex Court, had disposed of 2 Civil Appeals.

In fact, Live Law was the first to break the story.  Mr. Dave wrote to the Chief Justice of India to take action in a case  involving grant of permission by a 2-judges Bench of the Supreme Court,  which passed an order to post Civil Appeal No. 9454-9455 of 2010 along with another unconnected SLP (Crl) No. 7232/2013 before it, and then permitted the appellant to withdraw the Writ Petition from the Mumbai High CoSurt itself, as a result of which the damaging observations of the High Court, where it found on merits that  the public property is given to a private party at grossly undervalued price had been completely erased. ( Please read the livelaw reports for complete facts and orders ). The members of the Bar point out that if  such order  by the Supreme Court is allowed to remain, it would create a highly improper precedent by which one can get a judgment set aside, by withdrawing  base writ petition or  suit as the case may be.

Mr. Dave in his letter to the Chief Justice of India, a copy of which has also been circulated to the other judges of the Supreme Court as well, says that his attention was drawn to this incident, which ‘has generated serious “disquiet” amongst the Members of the Bar’ while he was having coffee at the Canteen.

Mr. Dave refers to the above developments as ‘extraordinary’, and ‘unparalleled, reflecting gross abuse of judicial power to cause damage to public running into an unspecified amount.’

Mr. Dave has flagged several issues of vital importance, some of which have been extracted below : 

1. How did the Bench become aware of the Civil Appeal when that matter had never crossed its path?
2. Who could have informed the said bench about the Civil Appeals?
3. Whether the Registry could have at all tagged a Civil Appeal listed for hearing before Hon’ble Mr. Justice B.S. Chauhan without an order from that Bench?
4. Whether the Bench upon being pointed out on 25.02.2014 by Mr. C.U. Singh, Ld. Senior Advocate that the two matters were not connected in any manner and having accepted the submission, ought not to have sent back the Civil Appeals to the Bench before they were listed?
5. Should the Bench not have awaited the appearance by CIDCO, a statutory authority, especially when the matter involved land worth several hundred crores and strong judgment of the Bombay High Court?
6. Is the judgment and order pronounced on 25.02.2014 not illegal, coram non judice and violative of basic principles of exercise of judicial power and liable to recalled forthwith?
7. Should the Supreme Court not put in place fool proof Rules to ensure that the judicial abuse witnessed in allcocation, especially on mentioning to avoid forum shopping in interest of justice?
8. Should the Registry not be held accountable?”

Mr. Dave further continues : “there is a continuous and strong feeling amongst young members of the Bar that these kind of machinations are hurting their future and they are getting increasingly despondent. I feel that the institution owes a lot to them. The events reflect a disturbing trend witnessed in the Supreme Court over the last couple of years, and has seriously shaken the faith in the Institution in some of us who respect and love the Institution immensely.”

Concluding his letter, Mr. Dave has made a fervent plea to the Chief Justice of India to “suo moto exercise the curative power” by the Supreme Court to remedy the “gross abuse of the process of the court” and “to act forthwith to restore the dignity of the Court and to prevent some of us from losing faith in the Institution completely.”

When Live Law contacted Shri. Dushyant Dave on the morning of March 4, 2013 as soon as we came in receipt of this letter, he confirmed that he had indeed sent such a letter to the Chief Justice, and later he expressed disinclination to discuss the matter any further. He said “my letter speaks for itself.”

As expected, the issue has generated a heated controversy. But what is surprising is the rather muted response of

Senior members of the Bar, who are otherwise very vocal in seminars and symposiums in their support for judicial reforms and judicial accountability and standards.  The issue has also been extensively covered in the Times of India and other news channels and web portals after it was first reported by 'Live Law', which generated animated discussion in the corridors of the Supreme Court  and other courts in the Country.  Curiously enough, the Supreme Court Bar Association and most of the lawyer organizations have chosen to maintain a deafening silence so far.  Several members are of the Supreme Court Bar Association are of the view that the Bar, as a collective body is forgetting its duties. Even after such important issue has come up in public domain, there is no official communication by SCBA in this regard. 'Live Law' tried to contact the President of the SCBA for an official response but to no avail. When contacted, Ms. Aishwarya Bhati, the Secretary of the SCBA sought time to make known the official response of the Association. Mr. Shekhar, Vice-President, SCBA however, frankly admitted to 'Live Law ' that the Executive Committee of SCBA has not met to deliberate on this issue so far. He however added that the SCBA is duty bound to discuss this issue to have probity in public life, more so, in judiciary. He also said that the matter will be analysed threadbare by the SCBA, and thereafter, they would respond.

Barring a few, most lawyers of the Supreme Court Bar, including some of the senior lawyers have chosen to remain silent than to speak out against an order passed under circumstances, which on the face of it does not seem to be free from irregularity and impropriety, if not outright illegality, presumably out of fear of the potential consequences of being critical of  the Bench which passed the order.

Live Law spoke to Prashant Bhushan, who remarked that 'the circumstances under which the order (permitting withdrawal) was made prima facie shows 'dishonest motive'. He said ‘it was a blatant case of not just judicial impropriety, but also smacks of  'dishonest motive'. Dr. Sebastian Paul, a former Member of Parliament and a lawyer practising in the High Court of Kerala, opined that “It is yet another case of scandalous judicial behaviour. The unnatural haste, flouting procedure and propriety, shown by Justice Prasad to terminate a Rs 1,000-cr worth land case, is a matter of grave concern.” Dr. Sebastian Paul termed the conduct of the Supreme Court judge ‘inscrutable’ and was of the definite opinion that the Chief Justice should intervene and “correct the situation.”

All India Lawyers Union has been among the few lawyers' organisations to take a definite stand in this matter. Som Dutt Sharma, national General Secretary of the All India Lawyers Union, when contacted by Live Law, for knowing his organisation's stand in the matter said : "All India Lawyers Union stands for independent judiary which implies an honest judiciary above suspicion. This incident is likely to damage the image of the institution beyond repair. Since matter has already been brought to the notice of CJI it will be apropriate for the CJI to conduct an enquiry on  administrative side and recall the order. AILU demands that the matter be enquired in to."

Shri. Som Dutt Sharma has hit the nail on the head. The incident in question, as he correctly points out is likely to damage the credibility and image of the institution beyond repair. It is trite law that justice must not only be done, but also be seen to be done. This golden principle which has guided our judiciary all along, seems to have been given a go-by in the case referred to in Shri. Dushyant Dave's letter.

Since the letter addressed by Dushyant Dave has become an open secret by this time, all eyes are now on the Chief Justice of India to see whether an immediate action as sought for by Shri. Dushyant Dave  would be taken, given the serious issues of illegality and impropriety involved.

It is imperative that to salvage the credibility of an institution that has taken a beating in recent times, and to reassert its supremacy and dignity, and credentials as the sentinel of the citizens of this Country, the Apex Court intervenes in a suitable manner to remedy the palpable illegality committed by the 2-judge Bench in this case.

Ajith.S is Associate editor at Live Law and can be reached at ajith@livelaw.in