The mandates of natural justice

The mandates of natural justice

Context

Questions for the judiciary on the anniversary of India’s adoption of its Constitution

Purpose in designating 26th November as Law Day (Constitution Day)

• To emphasise the role and importance of law in the life of our Republic
• To review the state of law and administration of justice, to suggest ways and means of improving our laws and our legal and judicial system
• To establish better and more meaningful equations between the Bench and the Bar
• To strengthen the principle of the independence of the judiciary… and to maintain, reinforce and augment public confidence in our legal and judicial system

A necessary appraisal

• A first information report in which a retired Orissa High Court judge, I.M. Quddusi, was implicated for allegedly taking bribes to secure favourable orders from the Supreme Court. These matters which Justice Quddusi is alleged to have claimed he could fix were heard by a bench presided by the Chief Justice of India (CJI)

Justice seen to be done?

If we were to view the controversy rationally, the entire issue ought to boil down to these questions:

• Under what circumstances does a litigant’s claim in court translate into a claim that interests a judge? Does the CJI ever have a duty to recuse himself as the “master of the roster”?

Guided by precedent

• To determine these questions, the court has no explicitly binding rules to apply; it’s guided partly by precedent, but mostly by discretion. In ordinary circumstances, this discretion would be governed by the general principle expressed by Lord Chief Justice Hewart of the King’s Bench nearly 100 years ago: that “justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Petition dismissed

• But, on November 14, when a three-judge bench constituted by the CJI, which included a judge who had originally heard the cases that Justice Quddusi claimed he could influence, conducted a hearing, it barely considered the basic tenets of this principle. Instead, it dismissed Ms. Jaiswal’s petition, as an attempt at “bringing disrepute” to the court. What’s more, the bench also held that the petitioner’s request for a recusal by one of the judges hearing the case amounted virtually to a contempt of the court.

The Gajendragadkar way

• Here, it may have been instructive for the court to hark back to an incident from August 1964, when a group of intervenors represented by the lawyer Purushottam Trikamdas — a ‘tiger’ at the bar, by Fali Nariman’s reckoning — made what was at the time an odd request to a bench presided by the CJI, P.B. Gajendragadkar, which was hearing a case concerning the validity of a Bombay land acquisition law. Gajendragadkar, they argued, should not hear the case, since its outcome would affect a cooperative housing society of which he was a member.