Probity versus propriety – Judiciary in turmoil

November 14, 2017, 12:30 pm
Probity versus propriety – Judiciary in turmoil
SPOTLIGHT
SPOTLIGHT
Probity versus propriety – Judiciary in turmoil

Probity versus propriety – Judiciary in turmoil

Nemo debet essee judex in causa propria sua is a pompous Latin maxim which conveys a profound legal principle which precludes a justice, who is interested in the subject matter of a dispute, from acting as a justice therein. It is unfortunate that the Chief Justice of India is embroiled in a controversy involving this hallowed principle. The controversy arose when a two-judge Bench headed by Justice J. Chelameswar referred a sensitive case to a Bench of first five senior judges. The petition sought an SIT investigation into an alleged conspiracy to bribe Supreme Court judges for a favourable outcome in a pending case of a debarred private medical college. The Chief Justice, himself a party to the proceedings, promptly annulled that order citing CJI’s supremacy in allocation of work to judges.

The Chief Justice, as head of the apex court, is undoubtedly the master of the roster. The composition of Benches and allocation of judicial work are done by him. Chief Justice Dipak Misra can legitimately assert this authority and act on this prerogative. At the same time allegations of judicial corruption are a serious matter which should be dealt with in right earnest in order to uphold the dignity and credibility of the judiciary and to free it from scurrilous and per se contemptuous allegations. Justice Chelameswar, the senior-most puisne judge, was following the spirit of the law when he passed an extremely unusual order that delineated the composition of a Constitution Bench, excluding the Chief Justice, to hear a writ petition seeking a fair probe into the allegations about a judge-middleman nexus to influence the judges.

The nasty plot to influence the Supreme Court was unravelled in the Prasad Education Trust case which had been heard by a Bench headed by the Chief Justice. By heading the Bench himself rather than leaving it to another set of judges, the Chief Justice unnecessarily created the impression that he violated the nemo debet principle. The Chief Justice can rule the roost and decide the roster. That is letter of the law. But Justice Chelameswar, a bold and upright judge, was worried about the allegation about a conflict of interest. In passing the controversial order, Justice Chelameswar deliberately chose to encroach upon the preserve of the Chief Justice.

It is a delicate situation where law and propriety are in discordance. Interests of justice demand a thorough probe by the Central Bureau of Investigation in the case registered by it. The involvement of serving judges in the nefarious conspiracy may be a distant possibility but the plot thickens with a retired judge of the Orissa High Court arrayed with suspected middlemen. More worrisome is the apparent rift between the number one judge and the number two judge and the top judges directly or indirectly taking sides. More troubling is the possibility of the judiciary being susceptible to corruption. Substantive issues may not be thrown into the chasm of avoidable judicial rift.