Courting doubts

The Supreme Court needs to take steps to reinforce its credibility

At a time when the government is seeking to improve the country’s “doing business” environment for foreign investors, the recent turmoil over routine matters involving procedures and propriety has done little to enhance the credibility of the country’s highest judicial body. The fracas over the hearing of a case involving a blacklisted medical college is especially embarrassing because it involves a case of alleged judicial corruption — the lower court judge concerned is currently in jail. More seriously, it also suggests a grave institutional weakening of the apex court, in which judges appear unable to demonstrate a modicum of professional respect for each other or to observe the minimum of decorum.

There are no winners in this debacle. To start with, it is difficult to understand how a two-judge Bench, that too headed by the second senior-most Justice, could have been unaware of standard rules — extant since a 1997 judgment — that accords the Chief Justice the powers of sole master of the roster, which includes allocating work to judges and the prerogative to constitute Benches. Given this, it is unclear why the two-judge Bench should have taken upon itself the initiative of passing an order that the matter in question be heard by a Constitution Bench comprising five of the senior-most judges of the Supreme Court, without, at the very minimum, consulting Chief Justice Dipak Misra, who would be sitting on that very Bench.

If the original contravention was faulty, the Chief Justice’s overreaction did not help matters. Instead of discretion, Chief Justice Misra chose an elaborate exercise of constituting a five-judge Bench to overturn the two-judge Bench order on the grounds that it “could not be countenanced in law and [is] not permissible”. A more effective way of exposing infighting within the apex court could not have been found, especially since the larger Bench, which is usually keen to ban media reporting, declined to prevent the media from reporting the court proceedings. Equally, even if it is accepted that the Chief Justice, as first among equals, was within his rights to overturn the two-judge Bench’s ruling on procedural grounds, it is not clear why he chose to eschew the rules of conflict of interest himself. Since he had passed an order on the issue that had been up for hearing before the two-judge Bench, a recusal from the five-judge Bench, which would rule on a critical issue regarding judicial corruption, would have been in order — and, indeed, may have effectively underlined the message of impropriety by his fellow judges. He had once ruled, however mildly, on the case, so it behoved him not to, in effect, sit in judgment on his own ruling. Desisting from doing so would have gone a long way towards enhancing the reputation of the apex court, especially in light of Tuesday’s dismissal of the plea for a special probe into corruption against judges, even though the order was passed with the critical caveat that no judge is above the law.