Might is not always right

[dropcap]W[/dropcap]E witnessed something truly bizarre and unprecedented in the history of  the Supreme Court of India on April 20, 2019. The Chief Justice of India (CJI) had been accused of misconduct and harassment by a former Supreme Court employee. A bench was constituted for a special sitting headed by CJI Ranjan Gogoi along with two other judges namely, Justices Arun Mishra and Sanjeev Khanna where Justice Gogoi termed the  accusations against his personal conduct “a serious threat to the Independence of Judiciary”.

I believe that the presence of the Chief Justice was unnecessary. This hearing should have been dealt by his brother judges in the Collegium who have also spent decades as judges. Instead Justice Gogoi constituted the bench immediately after media reports of the complaint surfaced and in an open court hearing on a Saturday morning, in the presence of the country’s senior most law officers, the Attorney General and the Solicitor General, condemned the victim, thereby violating the principle of audi alteram partem (hearing the other side). It also violated the legal principle of nemo essex judicausa or  “no man can be a judge in his own cause”. The most appropriate thing Justice Gogoi could have done was to have called a press conference and tackled the allegations levelled against him. Instead he presided over the hearing and later recused himself. The order that was passed became an order coming from the CJI’s court but more importantly without him being a signatory.

Traditionally, an in-house procedure is followed where an alleged misconduct by a judge is investigated either by the Chief Justice of the particular high court or by the CJI. Where a judge of the Supreme Court is accused of misconduct, the CJI must take cognisance and decide the case preliminarily or provide a hearing on merits, depending on how satisfied the CJI is with the allegations and simultaneous proof of the same. But the Committee on In-House Procedure never contemplated a situation where the allegations would be against the Chief Justice of India himself.

In the case of Indira Jaising vs Registrar General, Supreme Court of India, the  judges observed as follows:

“In our constitutional scheme it is not possible to vest the Chief Justice of India with any control over the puisne Judges with regard to conduct either personal or judicial. In case of breach of any rule of the Code of Conduct, the Chief Justice can choose not to post cases before a particular Judge against whom there are acceptable allegations.”

It is now after 20 years that we are at this deplorable juncture where there exists no recourse while the Chief Justice of India who is described as the head of the judicial family by the judges in the aforementioned judgement is posting cases before himself even as he is alleged to have committed a serious offence.

The CJI is the senior-most member of the judiciary and is expected to be the protector and  guardian of the Constitution. This responsibility does not, however,  give him the right to deal with any case in such an arbitrary manner. No man is above law and whatever his rank or stature is, it has always been subject to the jurisdiction of the court. Transparency is the hallmark of a successful democracy and the  CJI should have been transparent in discharging his duties in the recent case. Had he done so his credibility would not have been so questioned.

In an unprecedented press conference last year along with other three judges, the CJI referred to the arbitrary manner in which benches were being constituted and suggested that things were not going as they should in the Supreme Court.

It is, therefore,  indeed ironical that he himself constituted the bench and acted as Master of the Roster when a complaint had been made against him. True wisdom would have been reflected if the CJI would have met the Collegium or the Full Court and asked them to deal with the matter appropriately. It is very easy to preach but difficult to practice. What  the entire nation would like to know from the bench which passed the order is: was it right to condemn the victim unheard? Does the CJI represent the Judiciary for having termed the incident as the threat to the independence of judiciary? Was the CJI trying to divert public opinion by saying that he was going to hear cases of national importance?

Be you ever so high the law is above you. If the rule of law has to prevail then the law must take its own course. The CJI prima facie seemed to have forgotten while declaring his bank balance that it is not his bank balance that matters for the independence of the judiciary but the steps that he takes to rectify the issues that he raised during the press conference. This incident was an opportunity for the CJI to prove that he was the saviour of the institution and he would have held the moral high ground no matter what came afterwards. What is clear however, is that the principles of natural justice were completely discarded, and all canons of fair play violated.

The Committee for In-House proceedings never contemplated that a CJI could be accused of such grave misdemeanour and hence vested powers in him to decide on the merits of a complaint against a sitting Supreme Court judge or a Chief Justice of a high court.

While in the present case, the Collegium is the right authority, I believe there must be a high powered committee constituted by the Full Court to conduct a fair and impartial inquiry into the allegations.

The Temple of Justice has been tarnished but by being subjected to a free and fair probe we must try to regain the shaken confidence of the people in the judiciary. If appropriate steps are not taken at the earliest, the word ‘Honourable’ used before the Court and the CJI would be as meaningless as a bird named Kiwi.



[Mahalakshmi Pavani is a Senior Advocate in the Supreme Court of India]