My Lords, The Emperor Has No Clothes!!!

You would have heard it earlier. An Emperor was fond of wearing new and fancy clothes. He always wanted the newest fashions. Two swindlers convince him that the clothes they are making are made of such fine fabric that it is invisible to anyone who is either unfit for his position or “hopelessly stupid”, and that only the most elevated people can see the clothes. The Emperor can’t see the clothes himself, but he can’t admit that. So he wears the clothes in the palace, and everyone bows down and says what a fine set of clothes he has, because they are also afraid to contradict the Emperor. This is in spite of the fact that the Emperor was nude. Then, the Emperor goes out and leads a parade to show off his new clothes to the people. Everyone on the road pretends to admire the clothes, being afraid of contradicting the Emperor. However, one little boy yells out, “but the Emperor has no clothes”!!! The Emperor realizes the assertion may be true but continues the procession.

The moral is that people may be sycophants or scared, and may pretend to agree with you. But, that does not mean that people do not know the truth. The moral is also that the Emperor must listen to an unpleasant but honest voice even if that is coming only from a single person or from an unlikely source.

So, what is the relevance of this story in this article?

Unfortunately, even in this communication age, some of our institutions still believe that what they say is right and everything else is false. There is no dearth of sycophants even in a democratic setup and they abound in black robes too. Nor is there a dearth of people, including those in black robes, who are scared to tell the truth to the Emperor.

No doubt, what the Supreme Court says is final. But, it is not necessarily always correct. Supreme Court may be supreme but it is not infallible. I don’t know how far this statement is correct, but I have heard in corridors of the Supreme Court that one retired Chief Justice of India (probably Justice P.N. Bhagwati) had once remarked that had there been a court above the Supreme Court, many of its decisions might have been overruled. In fact, I have substantially diluted this statement, because whosoever told me had used the expression “90%” instead of the word “many”.

Justice is not only about law. It is equally about equity. It is also about ethics. It is definitely also about certain basic principles, which may be characterized as principles of natural justice.

The statue of Justice is blind-folded not for the purpose that it should not see whether or not justice is being done. It is blind-folded to ensure that it cannot see the parties before it. So that justice could be done impartially without being partial to one of the parties who may be close to those who are in the seat of delivering justice. A conflict of interest, if visible, can make a Dhritarashtra out of a judge.

Supreme Court does not belong, exclusively, to the 25 judges who are at present appointed to it. It equally belongs to the lawyers who practice there. It also belongs to the litigants who approach it for justice. And, most importantly, Supreme Court equally belongs to 132 crore Indians who expect justice from it, who expect upholding of Constitution and the laws from it.

I am equally a stake-holder in the Supreme Court as much as any judge appointed thereto, not only as a lawyer practicing there but also as a common citizen. I feel exalted every time the Supreme Court does justice. And, I feel pained every time justice is not done, or if it appears that justice appears to have not been done. Yes, Supreme Court equally belongs to me, more so, because some 18 years ago, I left a top-level service, the Indian Police Service (IPS), mid-way, believing that I was moving my professional career to the most honest and justice-oriented institution. And, before taking this decision, I got reassurance and encouragement from my teacher, who is presently a judge in the apex court and a future head of that institution. So, I feel pained when my close-ones ridicule me when they hear stories of corruption in judiciary. “Didn’t you say that you wanted to shift your career to that of a lawyer since judiciary is the most honest and justice-oriented institution?”, they deride me! What answer do I offer to them, My Lords? How many times can or should I befool them?

Individual judges may come in and go. The institution remains there. The lawyers practicing in that court may continue to be associated with it till their last breath. Ram Jethmalani is 94 years. Shanti Bhushan is 92 years. In fact, the citizens of the country continue to have faith in judiciary, even after their death, for, many a time, more than one generation have to wait for getting justice in a case. So, can we say that we as lawyers, or we as citizens, have less stakes in the judiciary than the judges? The lawyers and the citizens equally want a credible judiciary with a clean image, which can be trusted for delivering justice. Judiciary is not the monopoly of the judges. We, the people of India, have more interest than the judges in ensuring a clean judiciary with a high institutional integrity and credibility.

Who suffers more when injustice is done? The judge or the litigant or the society as a whole?

It does not need any over-emphasis that every time a wrong judgment comes, it dents the credibility of the institution of judiciary, irrespective of whether or not such dent is prominently visible, and also irrespective of whether or not the judiciary perceives it as if no such dent has been caused by pretending that people do not know that “the Emperor has no clothes”.

So, in the medical scam related case, in Writ Petition (Criminal) No. 167 of 2017 [Kamini Jaiswal v. Union of India], decided on November 14, 2017 (see order), when the Supreme Court says that even if there is a conflict of interest, a judge can sit on a bench or that the Chief Justice of India (CJI) can constitute or decide the bench to hear such matter, it is doubtful whether it is legally correct, but it is for sure not correct as per requirements of equity and ethics and the principles of natural justice. People can see that the Emperor has no clothes even if they remain silent. The Supreme Court itself has laid down a contrary principle in an umpteen number of cases. I don’t feel any need to provide the list of such cases, which are aplenty.

Likewise, when the Supreme Court says that seeking recusal of a judge is tantamount to contempt of court, it is rewriting the law and practice on recusal of judges where there is even a suspicion of conflict of interest. One must remember that like many other things in life, contempt can also be a double-edged weapon. Exercising the contempt power can be justified where it is used for rightful purposes. But, if a person is punished for contempt for wrong reasons, then it may lead to more persons looking at the court contemptuously since that may show arrogance of power, even though such persons may not have the courage (or may be sycophants) to proclaim that the Emperor has no clothes. However, to the credit of the Supreme Court, I may say that it rightly refrained from initiating contempt in the Kamini Jaiswal case, otherwise, it could have unfortunately led to opening of the Pandora’s box.

Unfortunately, the Supreme Court also appears to be mistaken also about the effect of the CBI FIR in the above medical scam case. In the above order dated November 14, 2017, observations of the Supreme Court show that in its view the CBI FIR in the medical scam case is in no way connected with judiciary or any judges of the Supreme Court.

In its order, the Supreme Court held as under: “…It passes comprehension how it was, that the petitioner presumed, that there is an FIR lodged against any public functionary. There is an averment made in the writ petition that it is against the highest judicial functionaries; that FIR has been recorded. We do not find reflection of any name of the Judge of this Court in the FIR. There is no question of registering any FIR against any sitting Judge of the High Court or of this Court as it is not permissible as per the law laid down…”.

But, unfortunately, it is not so. I may respectfully submit that the FIR points a needle of suspicion towards the Supreme Court (as the FIR stands, on its face value), even though name of any specific judge is not mentioned and even though nothing may ultimately come out of it. And, as I would point out later in this article, this can have disastrous consequences for the institution of judiciary.

Firstly, let me point out that the FIR dated 19 September 2017 (read it online on CBI website) has been registered by the CBI under Section 8 of the Prevention of Corruption Act, 1988, and Section 120-B of the IPC. Let me reproduce Section 8 of the PC Act for a better appreciation of the legal issue involved here:

“8. Taking gratification, in order, by corrupt or illegal means, to influence public servant.—Whoever accepts or obtains, or agrees to accept, or attempts to obtain, from any person, for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means, any public servant, whether named or otherwise, to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment for a term which shall be not less than three years but which may extend to seven years and shall also be liable to fine.”

The essence of the offence defined in Section 8 is that a person (who is generally a middleman or an agent) accepts (etc.) bribe as a motive or reward for inducing, by corrupt or illegal means, any public servant to do some favour, etc. This means that one of the main ingredient of the offence is that the person who is accepting bribe is to induce a public servant by corrupt or illegal means for showing some favour, etc.

Section 8 is to be contrasted with Section 9 (which is a similar offence with a single difference), wherein the person who is accepting bribe does so to induce a public servant by the exercise of personal influence for showing some favour, etc.

Section 9 would be attracted, for example, when the brother of the public servant, accepts a bribe to induce the public servant by using his personal influence with the public servant to make him to show some favour, etc. In such situation, the public servant may not get a part of the bribe, since the allegation is that personal influence was used by the middleman to get the work done from the public servant.

On the other hand, Section 8 would generally be attracted when the public servant is given or is to be given a share of the bribe accepted by the middleman, who induces such public servant by corrupt or illegal means to make him show some favour, etc. The expression by corrupt or illegal means clearly demonstrates that some corrupt or illegal means were employed or were to be employed to induce the public servant to show the favour to be bribe-giver (or to someone else), even though the bribe was accepted by a middleman. This would generally mean, a part of the bribe being paid to the public servant (or, may be, to his relative, etc.), though corrupt or illegal may sometimes refer to some other type of corrupt or illegal means also (i.e., other than by payment of part of the bribe).

So, the application of Section 8 of the Prevention of Corruption Act in the CBI FIR dated 19 September 2017 clearly implies that the middlemen who accepted or agreed to accept bribe were doing so to influence by corrupt or illegal means a public servant to show favour in the matter pending before him. This means that as per the CBI FIR allegations, it was suspected a part of the bribe might be given to such public servant.

Now, let us see who such public servant could have been, as referred to in the CBI FIR.

Paragraphs 5 and 6 of the above order dated 14 November 2017 reproduce some facts mentioned in the said FIR. Moreover, the said CBI FIR is available online on CBI website.

The relevant part of the FIR, in brief, states that a medical college run by Prasad Education Trust, Lucknow was debarred by the Central Government from admitting fresh students for two years 2017-18 and 2018-19. Prasad Education Trust had filed a Writ Petition (Civil) No. 797 of 2017 before the Supreme Court in this regard (though it is not mentioned in the FIR, it is a fact that this writ petition was being heard by a bench headed by the present CJI Justice Dipak Misra). One B.P. Yadav of this Trust had contacted Justice I.M. Quddusi, a former Odisha high court judge and one Smt. Bhawana Pandey who assured to get the matter settled in the Supreme Court through their contacts, and they further engaged one Biswanath Agrawala, a resident of Bhubaneshwar, Odisha, for getting the matter settled in the Supreme Court. It is mentioned in the FIR that: “Shri Biswanath Agrawala claimed very close contact with senior relevant public functionaries and assured that he would get the matter favourably settled. However, he demanded huge gratification for inducing the public servants by corrupt and illegal means in lieu of the aforesaid help.”

On this information, the FIR was registered. Subsequently, 6 persons, including Justice Quddusi were arrested by CBI and remanded to CBI custody by Special Judge Manoj Jain. A total amount of Rs. 1.86 crore was recovered by CBI. It was reported that the CBI had many phone intercepts in this matter.

Now, if we go by the CBI FIR, the writ petition was pending in the Supreme Court (it was before a bench headed by the present CJI). Promise was made by the middleman to get the matter settled in Supreme Court by influencing the relevant public servants by corrupt or illegal means. Who could have been the public servant or “senior relevant public functionaries” who could have helped in settling the matter which was pending in Supreme Court? If the matter is pending in the Supreme Court, then who else can be influenced to settle the matter? Can a Government officer or any other public servant settle the matter which is pending in the Supreme Court before a bench headed by the present CJI?

I sincerely wish and believe that there was no involvement of any member of the judiciary in the case and that it was a one-sided assertion of a middleman. I earnestly hope that the judiciary cannot be corrupt. But, what the FIR mentioned raised at least a needle of suspicion.

It is also true that the Supreme Court had disposed of the above writ petition [Writ Petition (Civil) No. 797 of 2017] on 18 September by giving only a part-remedy (see order), while the CBI FIR was registered on 19 September. But, having seen the working of the CBI from inside, let me point out that the CBI does not suddenly register the FIR like a police station. CBI has its own internal system of taking orders on file from senior officers of CBI beforehand for registering an FIR. In this particular case, since the FIR unusually involved a retired High Court judge and it related to a case pending before the Supreme Court which was to be settled as per the FIR allegations, I am sure this FIR must have been approved at the level of Director CBI before 19 September itself. In fact, if we believe the “caged parrot” theory, I would not be surprised if even the political executive was consulted before registering this FIR which was of a sensitive nature.

Now, let me point out how the Supreme Court could be complacent in the matter and how it can have serious dangerous consequences for the judiciary, which, unfortunately, the Supreme Court appears to have not considered.

As I wrote recently [The last institution that we trust, the Supreme Court, is imploding… and the blame goes to insiders], in the case of K. Veeraswami v. Union of India, (1991) 3 SCC 655, the majority [Shetty and Venkatachaliah, JJ., and Ray, J.] of a Constitution bench of the Supreme Court directed that no criminal case shall be registered under Section 154, Cr.P.C., against a Judge of the High Court, Chief Justice of High Court or Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter and that due regard must be given by the government to the opinion expressed by the Chief Justice. If the Chief Justice is of opinion that it is not a fit case for proceeding under the Act, the case shall not be registered. It was further held that if the Chief Justice of India himself is the person against whom the allegations of criminal misconduct are received the government shall consult any other Judge or Judges of the Supreme Court.

So, this judgment does not completely prohibit registration of FIR against a judge; what it requires is that consent of the CJI is required for registering FIR against a judge of High Court or of Supreme Court. Moreover, if the FIR is to be registered against the CJI himself, then the Government may consult any other judge or judges of the Supreme Court.

Now, presuming for the sake of a discussion (though I do not hope so), during the investigation of the above CBI FIR, certain allegations are found substantiated against the CJI. In that case, the Government could consult any other judge or judges of the Supreme Court for registering FIR against the CJI or for including his name as an accused person in the said investigation. Since as per the above K. Veeraswami  judgment, even a single “any other judge” could also be consulted and that can meet the requirements of the said judgment, what if the Government consults the second senior-most judge in the Supreme Court (which would eminently satisfy the requirement of “any other judge”), i.e., Justice Jasti Chelameswar in respect of the allegations against the CJI Justice Dipak Misra and what if Justice Chelameswar gives his consent for such FIR? Given the controversy that has been created in last few days about the relations between Justice Dipak Misra and Justice Chelameswar, is it only a figment of imagination or may be a possibility at least?

Wouldn’t that have serious consequences for the institution of judiciary? Now, did the 3-judge bench of the Supreme Court consider this possibility when on 14 November 2017 it dismissed the writ petition filed by Advocate Kamini Jaiswal, by observing that the CBI FIR in the medical scam case is in no way connected with judiciary or any judges of the Supreme Court?

I refrain from going into further details. Because, unfortunately, the only remedy against most ills of the judiciary is considered to be the action or threat of contempt. The in-house mechanisms (see here and here) have proved to be ineffective. It is forgotten that an institution that tries to sweep under the carpet allegations against its members (especially the top ones), can never become a healthy institution. Such institution is bound to decay over time. Only an institution that has a solid fool-proof mechanism of taking strict action against errant functionaries can get strength over time. At least look into the allegations, don’t simply brush them aside.

It is in the interest of everybody that the institution of judiciary retains its institutional integrity and continues to uphold the Constitution and the laws, and should not become the law unto itself. But, unfortunately, the way things are happening, we appear to be headed in the negative direction. And, very few people appear to be complaining.

The Emperor is out on the parade. But, there is complete silence. People are not willing to contradict the Emperor. Let me assume the character of that young child in the story of Hans Christian Andersen, and yell out, “My Lords, but the Emperor has no clothes”!!!

Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, is author of 3 law books, and is an ex-IPS officer.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]