Opinion

Supreme Court ties itself in knots, must introspect

By Vipin Pubby

The current controversy involving higher judiciary, including the Chief Justice of India, had done great damage to the most respected institution of the country. The controversy has brought into open the division in higher judiciary with its members washing dirty linen in public.

Among the three pillars of democracy – legislature, executive and judiciary – the last one is indeed the last resort for justice. It is the protector of the constitution and keeps checks and balances on the other two pillars. It is because of its exalted position that there is law of contempt of court. It provides that judiciary is kept on a higher pedestal and it has been given powers to punish those who try to defame or denigrate it. This implies that although anyone can criticise any judgement but no one can impute motives on the judge.

But the public drama unfolding in the Supreme Court is precisely doing that and is not enhancing the dignity of the highest court of the land. Worse, it is being enacted by senior most judges as well advocates. All this is happening in the public domain and certainly for the first ever time.

The crux of the issue is that a two-member bench of Supreme Court issued an order that a five-member bench would take up a certain petition. It also specifically mentioned the names of judges who would constitute the bench. The point of contention here is whether the five member bench can constitute any other bench ?

It is a well settled question that the Chief Justice of India is the “master of the roster” as far as appointment of judges to any bench is concerned. Thus the two-member bench was not authorised to constitute any bench which is the sole prerogative of the Chief Justice. As a matter of illustration, what would happen if any Union minister decided to allocate portfolio to some other members of cabinet ? Obviously that is the prerogative of the prime minister.

But while the prime minister could have straight away dismissed the concerned minister for the step, the Chief Justice can’t do that. Removal of a judge is a long drawn out procedure involving impeachment through Parliament. We all know how complicated the procedure is with the result that no judge has so far been impeached.

Now coming to the specifics of the case, a petition had been filed in the highest court demanding a Special Investigation Team (SIT) should be constituted into a case in which former Orissa High Court judge I M Quddusi was arrested along with five others by the CBI. The case, as per the CBI, was one of alleged corruption involving the Lucknow-based Prasad Institute of Medical Sciences which was trying to get relief from courts after being placed on a government blacklist.
According to the FIR filed by the CBI, Quddusi and others were involved in deals to try and secure favourable orders from courts. It alleged that promoters of the medical college, one of 46 barred by the government from admitting students for two years, had approached Quddusi who had promised relief from courts, including the Supreme Court, with bribes to influential people.

During the hearing, the petitioners had contended that a three-judge bench, headed by Chief Justice of India Dipak Misra, had in the past dealt with the case of the Prasad Education Trust which runs the Lucknow college and, therefore, propriety demanded that he stays away from taking any judicial or administrative decision related to the matter.

The two-member bench, comprising Justices J Chelameswar and S Abdul Nazeer, then directed that it be heard by a Constitution Bench of five senior judges of the court. The bench evidently attempted to bypass the authority of the Chief Justice on grounds of impropriety of any judge hearing a case involving him. However in this case the CJI was not even named in the FIR and there was no mention of his direct or indirect involvement. Ideally the division bench should have left the decision to the Chief Justice to recuse himself.

The entire episode has weakened the institution by opening it to attacks by the executive. What happens if the government uses the CBI to just name an inconvenient judge in any case to spoil his reputation or to force him not to undertake cases relating to it or any other accused.

A three-member bench appointed by the Chief Justice has sought to end the controversy by saying that the CBI FIR was not against any sitting judge of the court and that the CJI alone had the power to assign a case to a bench even if there were allegations against him in the matter.

The court said “though it is true that no one is above the law, no person in the higher echelons is above the law, but at the same time, it is the duty of both the Bar and the Bench to protect the dignity of the entire judicial system”.

The controversy, despite the three bench directive is not likely to get buried any time soon, has dented the image of judiciary at a time when it is most vulnerable in view of the pending issues of method of appointment of judges and attempts to curb its powers. It is in the interest of democracy that judiciary must retain its autonomy even though it must also look inwards to maintain its own integrity and dignity.

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