CJI Misra has a full range of options to choose from, but inaction is the worst of them, with unforeseen, presumably undesirable consequences.
The turn of events starting last Friday has plunged the Supreme Court into a deeper, more fundamental crisis of leadership, well beyond the realm of issues raised by the four most senior judges at an unprecedented press conference.
The principal matter now before the higher judiciary is to first settle the question of the primacy and authority of the office of the Chief Justice of India.
Why? Because the four senior judges, after making their grievances public, have gone back to work under the same CJI with whom they have a serious trust deficit. Regardless of what law officers and the larger legal community may spin, the issue is now of public faith in higher judiciary, which is terribly shaken.
With each passing day, as the four judges go about their daily duty of dispensing justice, they also serve as a grim reminder of the alleged corrosion within. More importantly, it further confirms an unhealthy state of internal affairs, to the extent that the CJI is helpless in the wake of an open revolt.
If this is the case, then the next logical question is: Why is the country’s highest judicial office so helpless? This then takes one down the road of insinuations and allegations around the individual who occupies the office.
Should we, then, draw conclusions that last Friday’s press conference was also a veiled threat to bring out the dirty laundry in the open?
That’s the problem with public faith – once shaken, it allows for conspiracies to breed, which is how institutions become weak and insipid.
As head of the judiciary, Chief Justice Dipak Misra is both morally and constitutionally bound to restore this public faith.
Several options
The first way, of course, is to simply enforce discipline and order to the proceedings. He can take the position that his four senior colleagues broke institutional discipline by going public about internal issues, and thus, are liable to action in whichever way permissible.
In fact, many may argue that the four judges have actually dared the chief justice to take action against them if he could. In many ways, the CJI would theoretically be will within his rights to construe this as a direct challenge to the sanctity of his office. Many judicial luminaries have already made the point that the four judges should have considered demitting office before speaking out against the CJI.
Having said that, there’s also the question of probity in higher judiciary. This brings us to the other option before the CJI. He could easily exhibit moral ascendancy by asking the President or his collegium, or the judges’ collective as a whole, to inquire into his own functioning in a time-bound manner, again with the intent to restore public faith.
The CJI could also find a combination of both of the above, wherein he could enforce discipline and uphold the principles of probity at the same time. He may even choose to use this moment to take a string of actions that jerk the judiciary out of its own hesitancy to embrace contemporary standards of transparency, like shedding discretion where not needed.
In other words, the CJI has a full range of options. The question is: Will he exercise them? And how?
This is a leadership moment for the chief justice. Personal ignominy aside, the absence of any action will set the worst precedent for CJIs in the future, one that could even make this esteemed office permanently ineffective.
Terrible irony
Let it also be clear to all those who would have us believe that it’s business-as-usual in the Supreme Court, that there’s a larger principle of finality of dispute resolution that must be upheld.
The Supreme Court is the last word on any sort of dispute, big or small, in the country. That there’s an unresolved dispute among its own judges is in itself a terrible irony but the larger challenge then is – who will settle this dispute among the final arbiters?
If the Chief Justice does not act, then some other external institution will have to step in. Since the Supreme Court is the last justice giver and arbiter, the only option left would be overhaul of the rules of play. This would be devastating to the institution and to the invaluable basic Constitutional principle of the independence of the judiciary.
Therefore, not only does the Chief Justice have to pick up the gavel to enforce order, to uphold probity, but also protect the sanctity of the Supreme Court being the final word on justice.
Inaction, on the other hand, is the worst option, with unforeseen, presumably undesirable consequences.