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.