‘Regrettable’ Events In Supreme Court, Could Lead To ‘Forum Shopping’: Soli Sorabjee
Eminent jurist Soli Sorabjee on why the Chief Justice shouldn’t recuse himself in the Bhushan/Jaiswal petitions.
In the last week the Supreme Court of India has been cast in an unflattering light on account of allegations of judicial corruption. Eminent jurist and former Attorney General of India termed the events “regrettable” and “unfortunate” and warned that they may lead to “forum shopping”.
The short background to this is that two petitioners Prashant Bhushan and Kamini Jaiswal, both leading lawyers, have sought a special investigation, led by a retired judge, to look into the matter of admissions at medical colleges.
The CBI has been investigating this issue and recently arrested a retired Orissa High Court judge who was allegedly seeking bribes by offering to influence the outcome of a case in the Supreme Court.
Since the entire matter of medical colleges was being heard by the Chief Justice of India, both petitioners wanted their petitions for an SIT to be heard by a bench of judges that did not include the Chief Justice. But as the master of the rolls, the Chief Justice decided, at a tumultuous hearing last week, that he would determine the bench to hear the petitions. He referred the case to a three-judge bench of Justices RK Agrawal, AM Khanwilkar and Arun Mishra.
That bench of three judges heard one of the petitions today (filed by Prashant Bhushan) and has reserved its order.
BloombergQuint’s Menaka Doshi spoke to Soli Sorabjee, renowned jurist and former Attorney General of India, for his views on the controversy.
Here is the full interview with Mr. Sorabjee.
Edited excerpts from the interview...
How do you view the events of the past few days?
I think it’s very distressing and regrettable. I don’t think members of the bar should behave in a manner which brings down the authority of the Supreme Court. After all, bar and the Bench, what are they both interested in? To see that justice is done, to see that fundamental rights become living realities for various people, the indigent people, the underprivileged people. That’s the endeavour of both Bar and the bench. Now, they may have different views on how to go about it. But what happened and certain expressions used about the Chief Justice, it’s very unfortunate. I don’t like it at all.
On the contrary, we normally blame the Executive for trying to interfere with the administration of justice and in trying to make allegations against the judiciary. Executive does it okay, but members of the bar - singing the same tune! I found it very distressing.
The petitioners may argue that they did not want the Chief Justice to be involved in this matter as the corruption allegations pertain to cases heard by a bench headed by him.
But look, after all the Chief Justice is the master of rolls. He decides the roster. This way, by filing one petition and another, you can’t do forum shopping.
I don’t agree with their argument at all. How do you say he can’t determine that (the bench). Because someone makes an allegation what happens? You can make allegations about anyone and everyone. That’s not the way the Supreme Court should be treated.
What would have been the better course of action for the petitioners? Should not the Chief Justice have stayed a mile away from these petitions.
No, no, no. It’s a matter to be left to the court. Otherwise it would be very easy to get a person to recuse himself by filing one petition and another. You must trust the Chief Justice. If you don’t trust the head of the judiciary what happens? I don’t agree with these things. I find it very regrettable.
Instances such as the Kalikho Pul matter in the recent past may have prompted the petitioners to do what they did?
I don’t think so. This moment they are lowering the authority of the Supreme Court. You must trust the Chief Justice. You must trust someone. If members of the bar behave in this manner, I’m sorry I can’t appreciate it at all.
See the other consequence - it will lead to forum shopping. You file one petition, then you file another petition. Then you say no, Chief Justice can’t hear it, it must go to another bench.
Would a better route have been for the petitioners to mention the matter in front of the Chief Justice but subsequently ask for him to recuse himself?
Yes, it would have been but there should be some grounds. It’s very easy for a person to ask a certain judge to recuse himself but it must be on substantial grounds. I’m not talking about the Chief Justice in this case – as a general principle if you think a certain judge is not going to pass a favourable order then you can’t say recuse yourself. On what grounds? There must be substantial, legitimate grounds.
But the petitioners believe they have substantial grounds due to the CBI investigations. Don’t you think the Chief Justice would have also done this matter a favour if he had stayed away from it and allowed for a five-judge bench to hear the matter?
That means you give in to the tactics of some litigants? What happens, recuse yourself? You don’t recuse yourself then they say oh - the Chief Justice is not behaving in a proper manner.
As I said, I do not agree with the course of action adopted by them. I think it amounts to forum shopping and that should not be encouraged at all.
And I think everyone, bar and the bench are both interested in seeing that justice is dispensed, fearlessly, courageously. I for one don’t think there’s any reason for the Chief Justice to recuse himself just because some party feels he should, or gives some grounds.