New Delhi: Issues of judicial rectitude and judicial discipline have assumed the Center stage once again in the face of allegations concerning proceedings pending in the first court of the country – headed by the Chief Justice of India.
Two orders, on the judicial side, and an equal number of orders on the administrative side have been issued in the last one week to establish, what at least is desired by the CJI and other judges on these benches, to be the “correct position in the law”.
But the question that remains is whether the hurried exercise of judicial and administrative powers by the CJI and the convenient deduction of the issue to be a power struggle between Court 1 and Court 2 -- headed by Justice J Chelameswar, obliqued the real issue?
Deducing the events that transpired in the last one week to be an outcome of an alleged acrimony between the first two judges in the apex court has in fact diminished the significance of the whole episode.
What must have been an illustration of how the highest court of the land reacts when the accusations revolve around its Chief was lamentably, and also conveniently for some, reduced to be an instance of asserting supremacy by the most senior judges.
Unfortunately, this is not a first. It appears to be the second instance in less than a year when a supposed-to-be hostility between the most-senior judges of the Supreme Court has eclipsed the core issue.
Nine months ago, the Supreme Court and its CJI had come across a similar instance when a free and fair investigation was sought into a note attributed to former Arunachal Pradesh Chief Minister Kalikho Pul, who allegedly committed suicide last year.
The note mentioned that Pul was demanded money by agents for allegedly paying to several top figures from the judiciary, including the then CJI and the next most-senior judge, Justice Dipak Misra as he then was, for fixing a case relating to the ongoing political wrangle in the state.
Dangwimsai Pul, the first wife of the deceased CM, had in February written to then CJI J S Khehar, seeking an FIR into the accusations and an independent probe. Her letter underlined that prior permission from the CJI or other senior judges was imperative before registration of the FIR and launching an investigation against members of the higher judiciary.
According to the 1991-judgment in K Veeraswami’s case, no criminal proceedings can be initiated against a judge in the top court without a nod from the CJI, and when the allegations pertain to the CJI, the next senior-most judge could take this call.
Even though the suicide note reportedly connected to Pul had named him, Justice Khehar took the call on the administrative side – in an apparent contradiction to the legal principle that nobody would be a judge in his own cause.
The letter was converted into a petition although Dangwimsai had never asked for a judicial hearing of the matter and had rather sought an administrative approval in accordance with the Court judgment in Veeraswami. The petition was sent to one of the junior-most benches in the Court, headed by a judge who incidentally happened to be a colleague of then CJI Khehar in the Punjab and Haryana High Court. Attempts to access the administrative order passed by the then CJI to list the case before a particular bench after bypassing 10 other courts had also failed.
Pul’s wife resisted the judicial proceedings and finally opted to withdraw her letter. The bench then dismissed the petition as withdrawn, which effectively meant a judicial burial to the whole case.
Question had then arisen why the then CJI did not let the next most-senior judge decide, either on the administrative side or on the judicial side. But here again, the next in queue happened to be Justice J Chelameswar since Pul’s note had mentioned Justices Khehar and Misra.
Thus, the latest occurrences in the Supreme Court looks like a repeat of Pul’s episode when in spite of faced with allegations that can dismantle the credibility of the institution, the head of the body chose this to be a time to explicitly proclaim his supremacy as the “master of the roster” and as the “first among equals”.
To quote Abraham Lincoln, “Nearly all men can stand adversity, but if you want to test a man's character, give him power.”
However, a testing time for the CJI and India’s top judiciary to lead by example when its men are accused of impropriety has been trivialised by making it look like a battle between Court 1 and Court 2; thereby losing yet another opportunity to demonstrate extraordinary mettle and character that the judges of the Supreme Court are expected to possess.
The order by a three-judge bench, set up by the CJI, on Tuesday dismissed the petition, which wanted a Court-monitored investigation into a case wherein accused had sought bribes to fix cases pending in the Supreme Court – connoting yet another instance of a judicial burial after Pul’s case, while the situation warranted rising to the occasion and reaffirming the probity of the men who safeguard the rights of all in this country.
Causes of substantive justice look sacrificed to the arguments over procedural technicalities and judicial discipline, which are the not and cannot be the absolute principles of justice delivery. It is not just the individual uprightness of judges which was at stake but the integrity of the entire institution had been called for questioning. But the Supreme Court instead took refuge to devising rules of court and precedents in its bid to wriggle out of the crisis.
And one may aptly quote Julius Caesar: “All bad precedents begin as justifiable measures.”
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