This article analyses how the Supreme Court has interfaced with the Central Bureau of Investigation and contains concluding thoughts on the interface between the two. The introduction contained in Part I may be revisited in order to understand the line of thought in this Part II.

WHEN THE APEX COURT FALLS IN A TROUBLED ZONE

The Constitution of India, in 1950, envisaged a Supreme Court with a Chief Justice and 7 puisne judges - leaving it to Parliament to increase this number. In the early years, all the judges of the Supreme Court sat together to hear the cases presented before them. As the work of the Court increased and arrears of cases began to cumulate, Parliament increased the number of judges from 8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978 and 26 in 1986 and 31 in 2008. As the number of the judges has increased, they now sit in smaller Benches of two and three - coming together in larger Benches of 5 and more only when required to do so or to settle a difference of opinion or controversy. The significance of this is that an Order passed by a two-judge or a three-judge Bench is, for most purposes, final and binding. It is regarded as much as “the law of the land” pronounced by the apex court as earlier decisions passed by all nine judges of the Court and has to be respected and its directions adhered to. The “finality of judgment” rule states that a judgment pronounced by the Court is final, and departure from that rule is justified only ‘where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility’. Such departure from the rule finds itself in the form of two remedies against an order of the apex court. First is the facility of a review petition that Article 137 of the Constitution provides. The threshold, however, is very high and such review petitions are allowed when there has been made an error which is based on clear ignorance or disregard of the provisions of law. Generally, the rule of thumb is those errors which are not self-evident and where an examination or argument is required to establish it, review petitions are not encouraged for them. There is then the second remedy of a curative petition where petitioners complain of the gross abuse of the process of court and irremedial injustice. This remedy was created by the Court in the Ashok Hurra case. This exercise is done by the Court only in very rare circumstances since competing principles of finality of judgment and dispensing justice are in operation. The Court has envisaged two potential grounds where it can conduct such an exercise: (a) the decision of the court is vitiated being in violation of the principles of natural justice or (b) is giving scope for apprehension of bias due to a Judge who participated in the decision-making process not disclosing his links with a party to the case, or on account of abuse of the process of the court. Therefore, the finality of an order passed by, for example, two justices or three justices is almost absolute subject to the two remedies available. What happens when the apex court does not exercise the high level of responsibility it should in its judicial activism yet stops short of an error or intent meriting recourse to the two remedies?

In the analysis that follows, my grievance is not against the individuals involved, but, through examples of actions and omissions by individuals who have pronounced the law of the land, against the lack of effective checks and balances in the functioning of the apex court and the lack of an effective internal mechanism. My concern is reflected in Justice Arijit Pasayat’s statement back in 2008 in a matter before the Court that “the time has come because people have started categorising some judges as very honest despite it being the foremost qualification of any judge. It is the system. We have to find the mechanism to stem the rot”. Justice Aggarwal has also stated that “What about the character of politicians, lawyers and the society? We come from the same corrupt society and do not descend from heaven”. In the wake of these views of the Lordships themselves, how can confidence in the highest court of the nation be guaranteed? A recent example throws some notable perspectives and equations that deserve attention and systemic remedial measures.

In the eventual order in a series of orders on the Sohrabuddin fake encounter case passed on January 12, 2010 (the order that transferred investigations from the local state police to the CBI), the Bench consisting of Justice Tarun Chatterjee and Justice Aftab Alam outlined various cases that allowed for transfer of investigation to an independent agency like the CBI despite the fact that investigations at the local level had completed and charge-sheets were filed in the trial court in Gujarat. I certainly do not question nor second guess the right of the apex court to transfer the investigation to the CBI and, in fact, it is very likely that two key developments may not have taken place had the investigation been with the state police. However, the background facts of this Order are essential to understand the larger picture of the troubled zone the apex court may likely fall into. Firstly, in view of the complaint was made by Sohrabuddin’s brother, the petitioner, in 2007, the Supreme Court has been exercising “continuing mandamus” on the state police’s investigation since that time. Therefore, the apex court had given itself the right to monitor and supervise investigation and was doing so and could issue orders, censure and reprimand the respondent State of Gujarat if the investigation was not going well. Except for one senior officer and the Minister of State for Home, all other officers were arrested in due course of investigation proceedings by the local state police. Furthermore, the cases relied on by the apex court to support transfer of investigation to the CBI were cases in which investigation was so patently offensive to notions of justice that in order for fairness to be done, it had to be transferred to an independent agency. In the three years during the pendency of this decision, the apex court was, in fact, in receipt of about eight Action Taken Reports that saw the arrest of 13 officers, some of them of high rank. To state that transfer to the CBI in this case was justified because of the patently offensive investigation conducted by the local police is, in my view, a hasty measure.

Regardless of the decision to transfer the investigation to the CBI, what is perplexing are observations made by the apex court in the later part of the Order. The two-judge Bench came to several factual conclusions about the investigation done by the local police which it was privy to. About 20 paragraphs of the Order towards the end make direct conclusions on what the Bench felt about the facts provided to it under the Action Taken Reports and other reports submitted from time to time. These facts were not even led into evidence before the trial court. In previous decisions relied on by the Supreme Court, it refrained, without exception, from arriving at any kind of conclusion on the facts. While it is true that the apex court is allowed in certain exceptional cases in an Article 32 petition to “reappreciate evidence” and come to an independent finding when the findings are perverse or are such to which no reasonable person would have reacted, in my view, it certainly cannot make factual conclusions on disputed questions of fact when not only is the trial pending in local courts, but the apex court has ordered an investigation agency to conduct investigations afresh. This adjudication of facts by the highest court of the country seriously prejudices the trial process that shall be commenced in a trial court after the CBI completes its independent investigation and files a charge-sheet. Some examples of the observations made by the Court are as under:

a)      It appears from the charge-sheet that Kausarbi was taken into one of the two Tata Sumo jeeps in which police personnel accompanied the accused (Para 62);

b)      From the charge-sheet, it appears that the third person was “sent somewhere”. However it appears that the literal translation of the charge-sheet would mean that he was “anyhow made to disappear” (Para 63);

c)      Though the charge-sheet identifies the third person as Kalimuddin, the possibility of the third person being Tulsiram Prajapati cannot be ruled out (Para 65);

d)      From the call records, it is evident that the records had not been analysed properly, particularly the call data relating to three senior police officers (Para 66);

Another instance of injudicious decision-making by the apex court is in the appointment of amicus curiae in this case. Our system, based on the British system, permits only the Courts to appoint amicus curiae – a “friend of the court” – who, in Salmon LJ’s words, “help the court by expounding the law impartially”. An amicus curiae’s assistance is normally sought when the Court requires an impartial advice on what course of action it may take in an unprecedented case and specifically when the amicus curiae’s interests are not affected in any manner by the decision of the Court. The Court, in this case, appointed the Solicitor General of India as the amicus curiae.  The current Solicitor General had appeared on behalf of the respondent Union of India when he was the Additional Solicitor General. The Solicitor General of India, as noted above, regularly argues on behalf of the CBI. The conflict of interest is serious and glaring in that a law officer of the Government of India, who regularly represents the CBI in courts of India, was appointed amicus curiae in a decision to assist the apex court in deciding whether or not to transfer investigation from local police to the CBI. Regardless of the merits of accusations, what Mrs. Geeta Johri alleges in her curative petition – that she is pressurized by the Solicitor General to implicate high placed officials – calls for an organized set of rules to eliminate even remote possibilities of such instances. An uncomfortable conflict can be understood even if one discards the possibility of a political hostility existing between the current constituents of the Central Government and Gujarat State Government in this particular case. The allegiance and scope of representation of the law officers to the Central Government must be paramount in deciding their appointment as amicus curiae.

There is then the case of one of the judges of the two-judge Bench that pronounced the January 12 Order, Justice Tarun Chatterjee, who is suspected by the CBI to be involved in a multi-crore Ghaziabad provident fund scam. Justice Tarun Chatterjee retired as a Supreme Court judge on January 14, two days after he gave this Order. Two days before his retirement, he was already assigned as Chairman of the local commission in the border dispute between Arunachal Pradesh, Assam and Nagaland by the apex court. Some media reports on July 4 (about six months after his retirement) suggest that Justice Chatterjee has been given a clean chit by the CBI for his alleged role in this scam after an internal inquiry. The CBI website which regularly issues press releases and notifications on the status of its investigations is silent on any clean chit given to Justice Chatterjee. However, about a month ago, the CBI stated that it has “no prosecutable evidence” against Justice Chatterjee. The reason for dwelling into these detailed facts is that such facts raise serious doubts about impartiality of the imparters of justice in the apex court. As Justice Chatterjee stated it himself in the January 12 Order, justice must not only be done, but must also be seen to be done. The same threshold applies, in my view, for impartiality. Through this example of an individual judge in an individual case, the relevant point is not criticism of the individual, but the lack of an internal mechanism that Justice Pasayat speaks about. Such circumstantial factors make it difficult to have full faith in the sanctity of the third wing of our country. Interestingly, when the Nagaland Advocate General objected to Justice Chatterjee’s appointment as the Chairman of the local commission because Justice Chatterjee was a part of the two-judge Bench that, on September 13, 2004, ordered the constitution of this local commission, the Bench hearing these objections dismissed them on August 20 without outlining any reasons.

Furthermore, this pattern of pronouncing an order on or around the day of retirement can also be observed when Justice Pasayat ordered the SIT probe against Gujarat chief minister Narendra Modi and others as a part of the two-judge Bench. This Order was pronounced two weeks before his retirement. Justice Pasayat was appointed head of the Competition Appellate Tribunal in New Delhi by the Central Government five days after his retirement. These notable instances give rise to one question – while the apex court is the final arbiter of justice as per law and the Constitution, who keeps a check on the apex court? What happens when its impartiality is under severe doubt? Any challenge to the apex court’s exercise of discretion is likely to be held as contemptuous. Which entity dares to take on such indiscretion? Dr. Manmohan Singh will undoubtedly take the apex court on when it comes to defending the Minister for Food and Public Distribution. How does a common man retort?

CONCLUDING THOUGHTS

Stepping aside from law for a moment, Bharat (as India then was referred to) was always a land of spirituality, culture and values. Despite several invasions ending with the British Rule, we developed a constitutional structure based on our ethos and evolved customs that would govern the lives of generations to come within the broad parameters of our values. Our ancient values of integrity and honesty permeated this structure though some features of the British system were infused in this indigenous creation. The ideals were clear and the intent of the Framers was of the highest integrity. There were enough recourse options for the little man with a little pencil to avail in the event of any injustice. To begin with, his constituency’s elected leader – either the Corporator, the MLA or the MP – his region’s Chief Minister or the State Government, the Central Government, the Parliament, the media, failing which the Judiciary. In the 62 years since Independence, India has seen hundreds of rebellions; whether of a low or high intensity or whether it received media coverage or not. The economic disparity that can justifiably give birth to severe disgruntlement among the deprived sections is still something our brethren can take in their stride. But when law and order and justice fail to sustain a nation’s faith, the disgruntlement is vivid and rebellion unstoppable. The mass of our nation cannot be expected to pause for a moment and locate the guilty in a chain of agencies and institutions governing the nation. Its ire can manifest in any form and in any direction. What happens, then, when a supposedly autonomous agency in charge of being the nation’s official Interpol unit does not even possess structural autonomy and cannot on its own motion investigate a case against high ranking public officials? If the beholders of the will of the people along the entire spectrum of the Legislature are truly serious, Mr. Manish Tewari’s suggestions must be taken very seriously. Additionally, while it is heartening that the judicial activism of the Supreme Court has stretched the “recognized limits” of its extraordinary powers under the Constitution in a bid to do justice when all else fails, what happens when, in a few cases, the credibility of the apex court itself is at doubt? The several committees that have raised similar concerns as Mr. Tewari and should be brought to the forefront of the discussions and sweeping changes brought instantly so that, in the words of the ex-CBI director Joginder Singh, CBI officers need not ask the permission of the Government of India to visit the bathroom. As for the apex court, there must be some mechanism of oversight of the judges and transparency must be the key. It becomes extremely embarrassing when a former Union Law Minister alleges that, based on his knowledge, 8 out of 16 Chief Justices of India were corrupt. At the cost of repetition, angst against an individual must never be taken out of such facts, but rather, the lack of foolproof systems must be paid attention to and the quest for systemic solutions must always be the predominant utilization of energies rather than expressing ire against specific individuals. The premier investigation agency - the last recourse for impartial and thorough investigation - and the apex court – the last recourse for the notions of justice to sustain their sanctity – must, like Ceasar’s wife, be above any suspicion. To ensure that, the structure and systems of both entities must be watertight.

Kartikeya is a corporate transactional partner at Tanna Associates, a multi-practice law firm in Ahmedabad. He can be contacted at kartikeya@tannaassociates.com.

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