I am the Judge-But not in my Cause !!!

I am the Judge and I will decide !!

But shall not when the cause includes ME !!!

February, 2016 saw a sight which was not much pleasant for the Legal Fraternity and the Common Public when the headings of newspapers and news websites read the wordings of a sitting Judge of Madras High Court in a judicial order passed by him staying his own transfer as ordered by the Chief Justice of India in his powers as the head of the Indian Judiciary. It raised two important questions in the minds of the public at large. Firstly, Whether an administrative order of transfer passed by the CJI can be stayed by a High Court Judge and Secondly that such a judicial order can be passed when the administrative order is passed against the very same judge. Questions of great importance did arise in the entire episode of drama which included the involvement of big names in the legal fraternity, but the same remained unanswered by the dominance of the Highest Court of India using its powers to stay all the orders passed by the High Court Judge once the transfer orders were issued. Such an apprehension of passing orders Suo-Motu was already there and so Senior Advocate Shri K K Venugopal already made a mention before the Hon’ble Supreme Court that Justice Karnan of Madras High Court may issue suo-motu orders staying the transfer during the course of the day and the apprehension turned into reality when such orders were being dictated by Justice Karnan in the Madras High Court and the drama continued further, but the venue of the drama changed to the premises of Supreme Court where Justice Khehar passed an order keeping it open for the Chief Justice of Madras High Court to not allot any matters to Justice Karnan and the same shall imply that no judicial or administrative orders can be passed by Justice Karnan unless the same was kept before him by the special orders of the Chief Justice of Madras High Court.

The entire episode raised eyebrows across the nation, wherein various legal experts answered legal queries and news channel debates were taken to new highs in terms of decibels of sound. But a legal query which was raised at that point of time and is not raising eyebrows any more but is raising a pinch of doubt in the minds of public at large and also in the minds of legal fraternity is that “Whether the Order passed by Justice Karnan staying his own transfer legally tenable?” and that is what I am trying to answer in the present article.

The answer can be derived straight from the latin maxim “Nemo debet esse judex in propria sua causa” which means “No One ought to be a Judge in his own cause” and the entire episode could have been open and shut by the usage of this latin maxim at the very inception, without passing any remarks about the conduct and scenarios prevailing in the court room of Madras High Court. But the same was not done by the Hon’ble Supreme Court directly so does it mean that this maxim fails or it means use of such maxim was not alone enough to control the situation. It is also very lame to think that Justice Karnan could not have been aware of such a maxim and he could have passed an order staying his own transfer. So this maxim needs to be well thought for prior to jumping onto such easy conclusions.

To start the Judicial Pronouncements on the said principle I would like quote the words of Justice P N Bhagwati in the decision of Ashok Kumar Yadav versus State of Haryana reported in AIR 1987 SC 254 “One of the fundamental principles of our jurisprudence is that no man can be a judge in his own cause. The question is not whether the judge is actually biased or has in fact decided partially but whether the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. If there is a reasonable likelihood of bias `it is in accordance with natural justice and common sense that the judge likely to be so biased should be incapacitated from sitting'. The basic principle underlying this rule is that justice must not only be done but must also appear to be done.” The aforesaid words narrated by Justice Bhagwati clears the air on the very maxim by dissecting the interpretation of the principle into a vision to a reasonable apprehension of bias shall incapacitate the judge from taking any decision on the said issue. And when it comes to apprehension the entire legal fraternity is based on the outcomes of the apprehensions made by an eminent jurist as well as laymen, so it is a window given to think something more but with the windows smaller than an eyelash has no scope for any clarification and the same straight away restricts any such decision on their own cause.

In the case of A.U. Kureshi v. High Court of Gujarat reported in 2009 (11) SCC 84, where the decision taken by the Disciplinary Committee of Gujarat High Court was under challenge before the Hon’ble Supreme Court on the ground that the Hon’ble Judge who decided the Challenge to the said decision in Judicial Capacity was a member of the Disciplinary Committee which proposed the dismissal of the petitioner from the services to the State Government. The said challenge was held in favour of the Petitioner and the matter came to be remanded back to the High Court on the very ground by application of this maxim. The Hon’ble Supreme Court stated as “The decision made by the Disciplinary Committee was a vital component of the process by which the High Court of Gujarat made the recommendation to the State government for the dismissal of the appellant. It is therefore not proper for a member of the said Disciplinary Committee to decide on a challenge against the same dismissal order while acting in a purely judicial capacity. It is an accepted principle of natural justice that a person should not be a judge in his or her own cause. In common law, this principle has been derived from the Latin maxim - `nemo debet esse judex in propria sua causa'. A reasonable permutation of this principle is that no judge should adjudicate a dispute which he or she has dealt with in any capacity, other than a purely judicial one. The failure to adhere to this principle creates an apprehension of bias on part of the said judge” It was also quoted as “In view of this, it is our opinion that the learned judge who was part of the Disciplinary Committee which suggested the appellant's dismissal should not have later heard the matter on the judicial side. In the present case, the Disciplinary Committee had suggested the appellant's dismissal on the basis of which the High Court of Gujarat made the subsequent recommendation to the State government”. This decision tightened the clutches on application of this maxim as the highest level of unbiased approach is expected from the Judiciary in our Country and the principle when made applicable in a case where merely the apprehension of bias on the basis of judicial adjudication by a member of the disciplinary committee led to quashing of the order. This fundamental principle of jurisprudence is very well guarded and sharpened by the Supreme Court in the said decision.

The use of latin and other legal maxims always create an apprehension in the minds of public at large that the same are to be used by the Judicial Forums only and the same are not required to be followed in the common routine. But when it comes to this maxim, any action taken by Executives and Legislatives if crosses the line of application of this principle then judicial review of the same is hardly an inch away and the Judiciary is more than pleased to apply this principle and display their supremacy over the other wings of the Constitution.

The non-treatment of this principle by any of the judicial or quasi-judicial authorities is a direct attack on the breach of principles of natural justice and though it is expected from the Judicial authorities to be well versed with the application of law, it is expected from the quasi-judicial authorities to follow the principles of natural justice and hence though the principle being a legal principle of jurisprudence the same clutches the quasi-judicial authorities also and it is asigh of relief for a common man as it is out of question to convince a fact finding quasi-judicial authority who has been involved in the investigation against you especially when he is given the liberty to adjudicate his own investigation. The same has been well explained and clarified by the Hon’ble Apex Court in various decisions in the cases of Vide Secretary to Government, Transport Department v. Munuswamy Mudaliar and Anr reported in AIR 1988 SC 2232; Meenglas Tea Estate v. The Workmen reported in AIR 1963 SC 1719; and Mineral Development Ltd. v. The State of Bihar and Anr reported in AIR 1960 SC 468. In all these cases this principle has been made applicable in a strict manner and the claws of the adjudicating authorities have been clipped when they themselves have been involved in the adjudication process. The best example of the strictness of applicability of this principle is reflecting in the case of Arjun Chaubey v. Union of India and Ors reported in AIR 1984 SC 1356, wherein an employee serving in the Northern Railway had been dismissed by the Deputy Chief Commercial Superintendent on a charge of misconduct which concerned himself, after considering by himself, the explanation given by the employee against the charge and after thinking that the employee was not fit to be retained in service. It was also considered whether in such a case, the court should deny the relief to the employee, even if the court comes to the conclusion that order of punishment stood vitiated on the ground that the employee had been guilty of habitual acts of indiscipline/ misconduct. This Court held that the order of dismissal passed against the employee stood vitiated as it was in utter disregard of the principles of natural justice. The main thrust of the charges against the employee related to his conduct qua the disciplinary authority itself, therefore, it was not open to the disciplinary authority to sit in judgment over the explanation furnished by the employee and decide against the delinquent. No person could be a judge in his own cause and no witness could certify that his own testimony was true. Any one who had a personal stake in an enquiry must have kept himself aloof from the enquiry. The court further held that in such a case it could not be considered that the employee did not deserve any relief from the court since he was habitually guilty of acts subversive of discipline. The illegality from which the order of dismissal passed by the Authority concerned suffered was of a character so grave and fundamental that the alleged habitual misbehaviour of the delinquent employee could not cure or condone it” The strictness of applicability of this fundamental principle reflects from the wordings which weighs the illegality of the order much more than the habitual misbehavior of the employee leading to the termination and hence the order was quashed.

A pleasant approach was taken by the Hon’ble Apex Court in the case of Bihar State Min Deve Corporation vs Encon Builders Pvt Ltd reported in AIR 2003 SC 3688 wherein it was made clear that even a tincture of doubt shall render the entire exercise legally futile and a direct doubt shall lead to automatic disqualification of the adjudicator. “There cannot be any doubt whatsoever that an arbitration agreement must contain the broad consensus between the parties that the disputes and differences should be referred to a domestic tribunal. The said domestic tribunal must be an impartial one. It is a well-settled principle of law that a person cannot be a judge of his own cause. It is further well-settled that justice should not only be done but manifestly seen to be done. Actual bias would lead to an automatic disqualification where the decision maker is shown to have an interest in the outcome of the case. Actual bias denotes an arbitrator who allows a decision to be influenced by partiality or prejudice and thereby deprives the litigant of the fundamental right to a fair trial by an impartial tribunal.” Any mischief with the applicable principle shall amount to such an error in the proceedings which cannot be fulfilled even at the appellate stage by leading arguments to any extent on the aspect justification of bias and interest by the authority involved in the case.

In a remarkable decision rendered by the Hon’ble Supreme Court in the case of Krishna Bus Service P Ltd Vs State of Haryana reported in AIR 1985 SC 1651, whereby the Court quashed the notifications of the Haryana Government by way of which The General Manager, Haryana Roadways was conferred the powers exercisable by a Deputy Superintendent of Police under the Punjab Motor Vehicles (Haryana First Amendment) Rules, 1973 to inspect, search and seize the vehicles with regards to their fitness and other compliances on the same principle that The General Manager, Haryana Roadways would be always inclined towards betterment of their own roadways and the same shall lead to a direct biased approach against the private transport owners plying their buses.

An interesting question regarding permissibility to appear as a witness in the proceedings initiated by himself also did arose in the case of Mohd Yunus Khan versus State of UP reported in 2010 (10) SCC 539 wherein a person who initiated the disciplinary proceedings against the appellant for disobeying his own orders; appointed his subordinate as an inquiry officer; appeared as a witness in the proceedings to prove the charges of disobedience of his orders; accepted the enquiry report; and further passed the order of punishment - i.e. dismissal of the appellant from service. The Disciplinary Authority himself appeared as a witness in the enquiry. Thus, the enquiry itself stood vitiated. The punishment of dismissal remained disproportionate to the proved delinquency; the Appellate Authority considered while passing the order, the past conduct of the appellant for the purpose of confirming the order of punishment passed by the Disciplinary Authority. It was thus held in the said decision that “Thus, the legal position emerges that if a person appears as a witness in disciplinary proceedings, he cannot be an inquiry officer nor can he pass the order of punishment as a disciplinary authority. This rule has been held to be sacred. An apprehension of bias operates as a disqualification for a person to act as adjudicator. No person can be a Judge in his own cause and no witness can certify that his own testimony is true. Any one who has personal interest in the disciplinary proceedings must keep himself away from such proceedings. The violation of the principles of natural justice renders the order null and void”

The decision rendered in the case of Delhi Fin Corporn and Anr. vs Rajiv Anand and Others reported in 2004 (11) SCC 625 is the only exception that can be carved out of the pronouncements that have been delivered on this principle. The words narrated in the said decision reads as “The doctrine that 'no man can be a judge in his own cause' can be applied only to cases where the person concerned has a personal interest or has himself already done some act or taken a decision in the matter concerned. Merely because an officer of a Corporation is named to be the authority, does not by itself bring into the operation the doctrine 'no man can be a judge in his own cause'. Of course in individual cases bias may be shown against a particular officer but in the absence of any proof of personal bias or connection merely because officers of a particular Corporation is named as the authority does not mean that those officers would be biased.” The Hon’ble Supreme Court in this decision somewhat tried to balance the apprehension of bias without there being any personal interest, but the same do not inspire much confidence as the common man’s apprehension of bias prevails on the local streets of our nation as well as to the roads leading to each and every Constitutional Authority.

Time and again there have been instances where the members of the elected bodies who are holding such positions to adjudicate, try to over power the democratic principles applicable in the constitution of such bodies by exercise of their powers impugning the decisions taken in a democratic manner by the bodies where they themselves are the members and the decisions of the bodies are against the will of such member. Such actions are always subject to judicial review and the scope of succeeding in such judicial reviews is always equal to India playing Pakistan in a World Cup Cricket Match, where Pakistan may do their best but it is not enough to beat India in a World Cup Match. So we conclude by saying that when there is this world cup (cause involving the judge) then India (Judiciary) beats Pakistan (Executive and Legislative) anyhow.

Thus, the reading of the maxim NEMO DEBET ESSE JUDEX IN PROPRIA SUA CAUSA when made applicable in the episode of staying of transfer by issuing suo-motu orders can be said to be an exercise which though legally do not restrain the judicial forum directly but with the involvement of the ingredient of personal interest, the said maxim is strict-senso to be made applicable and the orders of Justice Karnan lacks jurisdiction to stay his own transfer.

Lastly quoting an incidence of our mythology which brought shame to everyone on this land where the Daughter in Law of the Bharat Vansh-Draupadi was being dragged to the hall of the Hastinapur palace by catching hold of her open hairs. It was always open for Dhritrashtra-the then king to pass any order restraining the said act done by his sons Duryodhana and Dushasana without citing any legality on the same, as the same being an immoral act in the days when morality always weighed more than legality. But no such orders were passed and what we witnessed is the most shameful sight of Indian Mythology followed by the biggest bloodshed on Indian Soil. The entire incidence could have been avoided, be it the King Dhitrashtra pass an order restraining his sons but such orders never came as any such orders would have meant passing an order against his own sons meaning himself and this was the bias that has been recognized by way of this maxim “NEMO DEBET ESSE JUDEX IN PROPRIA SUA CAUSA” and the implementation of the same is saving us from such actions of the Legislative and Executive which may strip us naked of our fundamental and legal rights.

Vikas V Nair

May 08, 2016


Improvisation Courtesy : Ms. Charu Mathur. Advocate, Supreme Court of India
Topic Courtesy: Mr Jay B Trivedi. Advocate, Gujarat High Court