Judicial propriety & NLUs

The role of the chief justice of India, judges of the Supreme Court and the chief justices of the high court vis-à-vis the administration of the National Law Universities (NLUs) is deeply intertwined. The reason is simple. The chief justice of India is the chancellor of the NLUs of Bengaluru and Kolkata. Two judges of the Supreme Court are chancellors of NLUs established in Mumbai, Aurangabad and Nagpur and other NLUs are headed by chief justices of high courts as chancellors. This excludes the cases of NLU Lucknow and NLU Rai, Sonipat, whose chancellors are the chief minister of the state and the governor of the respective state.

However, such a role of the chancellor-judges sometimes coincides with the issue of judicial propriety. This happens when the chancellor-judges discharge administrative functions via-a-vis the NLUs on the one hand and simultaneously also adjudicate over matters concerning these NLUs and their office-bearers in court. It raises serious issues of judicial propriety.

Such as, whether the cases filed against the NLUs should at all be listed before the bench of the chief justice in a high court who is also the chancellor of the same university? Whether the case in the Supreme Court concerning matters of the NLU in any respect should at all be listed either before the chief justice of India or any judge who is the chancellor of any NLU? Should the cases which are filed involving the vice-chancellors or registrars of the NLU be similarly heard by such chancellor-judge who is also the appointing authority of the vice-chancellor in most of the NLUs?

Judicial propriety demands that this should not happen. However, the facts reflect a trend otherwise. To test this argument, let us take two cases where most of the NLUs are, or have been, parties and a case where chancellors themselves or the vice-chancellors (VCs) and registrars are parties and the case is directly related to their role in the administration of the university or the cause of action.

Foremost is the case of Varun Bhagat vs Union of India, which paved a way for the ‘Common Law Admission Test’ (CLAT) when the then vice-chancellors of the first seven NLUs in the country formed the CLAT body. Interestingly, CLAT came into formation when the case was still sub-judice and it virtually rendered the petition infructuous. Be that as it may, CLAT came into existence. But the bench hearing this involved the then chief justice of India himself who was the chancellor for two of the respondent NLUs, namely NLSIU, Bengaluru and NUJS, Kolkata.

The second important case is Shamnad Basheer vs Union of India & Others. This case was filed by the public-spirited professor of law praying for the establishment of the ‘National Testing Agency’ to regulate CLAT. The case is still sub-judice. But once again, it is being heard by a bench presided over by one of the judges who is also a serving chancellor of two NLUs.

The third important case is of the Orissa High Court, Penukanta Ota vs State of Odisha, Secretary of Law, Chancellor of National Law University Odisha & Others. The case is about the administrative issues in NLU Odisha and was admitted on the basis of a Public Interest Litigation (PIL). Interestingly, the matter is still sub-judice and is being regularly heard by the bench headed by the chief justice of Odisha. This makes it a very peculiar case of dubious judicial propriety where the chief justice of the high court regularly presides over a matter in which he is also listed as a respondent party and the case is about the administrative problems in the university under his direct control and administrative supervision.

How should we view the impartial role of the chancellor-judges in these cases when they are regular visitors to such NLUs? This becomes all the more critical when the case is based on a PIL about the serious administrative problems in the NLU involving the role of the vice-chancellor, and the chancellor-judge hears it during the day in the court and meets the same VC later, accepting his hospitality. And the cycle continues. Should it not be viewed at par with any regular case where a judge should desist from accepting the hospitality of any kind from either of the parties in a case before him?

Two-pronged approach

Aren’t these cases fit for the prayer of recusal of the chancellor-judges from such benches? Would it not be judicious in the first place for such judges to make a self-disclosure of their interest in the administration of NLUs and gracefully recuse from the bench? Doing so would perhaps set a trend of high judicial propriety. Further, in such matters a two-pronged simple approach can be relied upon by the chancellor-judges to sound more fair, judicious and transparent in their approach.

Firstly, that such cases can be listed before a bench of other judges. And secondly, while hearing a case related to NLUs, the responsibilities of a chancellor could be delegated to another judge until the case is disposed of and shall maintain a reasonable distance from university matters as well as the vice-chancellors. Judicial propriety would then be better preserved and practiced.

Crafting the contours of judicial accountability is an ongoing journey and these case studies of NLUs must be seen as a fresh opportunity of more constructive debate that would help the judiciary reassure people that its actions, words, integrity and accountability are all subject to the test of the sovereign conscious and the
Constitution.

(The writer is Associate Professor of Law, Unitedworld School of Law, Karnavati University, Gandhinagar)