A question of probity 

A question of probity 

Context:

• A five-judge Constitution Bench of the Supreme Court led by the Chief Justice of India, in a case concerning corruption arising out of certain judicial proceedings, declared that the master who alone could decide what case goes to which judge in the Supreme Court.
• The registry published a circular notifying lawyers and litigants not to orally mention fresh cases before any other Supreme Court judge except before the Bench presided by the Chief Justice of India

What was the issue?

• On November 9, advocate Kamini Jaiswal had made an urgent oral mention of a petition before a two-judge Bench. The petition wanted the investigation into the medical college corruptioncase to be transferred from the CBI to a SIT supervised by a retired CJI.
• The petition said the FIR suspected that a conspiracy was highlighted to bribe Supreme Court judges.
• The two-judge Bench immediately listed the case for hearing on the same afternoon and ordered a Constitution Bench of the “first five judges in the order of seniority” to be set up on November 13 to hear Ms. Jaiswal’s petition.

What was the CJI’s reaction to it?

• The Constitution Bench headed by Chief Justice Misra effectively prevented the scheduled hearing on November 13 by laying down the law that no two-judge Bench can command the Chief Justice of India to constitute Benches to hear cases in the Supreme Court.
• The Chief Justice of India is the sole master and carries the complete administrative prerogative over which judge should hear which case in the apex court. The Constitution Bench, in effect, nullified the two-judge Bench’s order.

What is the way ahead?

• The principle that the Chief Justice of India is the master of the roster must be re-examined.
• Although there can scarcely be any argument against it as a tenet of judicial discipline, it would be naive to consider it an absolute principle of justice delivery.
• The unchecked power of the Chief Justice of India to constitute Benches must be similarly circumscribed.
• Doing so does not amount to mistrusting the Chief Justice, but rather being cognisant of changing demands of accountability.
• The moral authority of the Chief Justice of India and the Supreme Court is to be restored, something similar is needed urgently.
• In respect of judicial appointments a ‘glasnost’ and ‘perestroika’ is required if the system is to regain public confidence.