CJI has the power to decide who will hear a case. But he is still expected to exercise it fairly, especially when there is an obvious conflict of interest.
The Chief Justice of India, for the first time, has violated the most basic norm of any decision-making authority — that no one shall be a judge in his or her own case.
It’s a monumental farce. The brazenness with which the CJI has ridden roughshod over not only all norms of judicial propriety and judicial conduct, but also his own colleague, and in the process, has damaged the Supreme Court as an institution.
This is something that is not expected of any judge anywhere — whether he is the CJI or a munsif in a small court. And for the CJI to do this in such a public manner brings down the credibility of judiciary as a whole; that too in an instance where the allegation related to corruption on the part of judges, and potentially involved Justice Dipak Misra himself.
The first information report filed by the CBI does not name him explicitly, but the fact that he was presiding over the bench which was handling medical educational institution cases in the Supreme Court when the alleged bribery took place, cannot be lost sight of.
It required a fair and impartial probe by a body which was not susceptible to any outside influence or pressure. This is just what was thought by the Campaign for Judicial Accountability and Reforms, and Kamini Jaiswal.
It also highlights the weaknesses within the institution in handling a delicate situation such as this. What Justice Jasti Chelameswar did was to take a call to figure out how the situation could be addressed in a fair and impartial manner, even though procedurally, there may be some basis to suggest that he should not have directly referred the matter to a Constitution Bench.
If Justice Dipak Misra had simply allowed this to continue and, if eventually there was no action required to be taken, the minor procedural irregularity could have been condoned. However, by acting in the manner that he did Friday, he has really undermined the credibility of the Supreme Court and the office of the CJI.
If nothing else, this is only going to increase the doubts about his culpability in the offence in the eyes of a neutral and impartial observer.
It is true that as master of the rolls, the CJI has the power to decide who will hear a case in court. But he is still expected to exercise this power in a fair and judicious manner. More so, when there is a clear and obvious conflict of interest. By recalling the order of Justice Chelameswar, the CJI has exercised his power in a manner that amounts to its abuse, and has interfered in the course of justice in this case.
In my view, it is no different from what President Richard Nixon tried to do in the Watergate scandal or what President Trump could legitimately be accused of doing when he fired FBI chief James Comey in the context of Russia scandal.
It remains to be seen how the other judges of the Supreme Court will address or respond to these events – how the larger Supreme Court bar, senior advocates not present in court today, and other stakeholders in the institution – will respond to this conduct.
Make no mistake, this is the biggest crisis that the Supreme Court has faced in its history, simply because the threat to its credibility and its integrity has come from within.