Goings-on at the court

Last Friday witnessed an extraordinary and unprecedented 75 minutes in the history of the Supreme Court, probably the most explosive and potentially the most damaging. The court saw open conflict between two Benches and much shouting and screaming before the five-judge Bench headed by CJI Misra overturned Justice Chelameswar’s order, of a day earlier, and asserted that the CJI is the master of the roster. The proceedings left many bewildered, with activist-lawyer Prashant Bhushan openly asking CJI Misra to recuse himself as there were allegations against him, and then angrily storming out of the court after repeatedly being interrupted by members of the Supreme Court Bar Association and the Bench. 

The court must be complimented for displaying magnanimity by not initiating contempt proceedings against Bhushan. It could have shown further large-heartedness by giving him another opportunity to argue but it didn’t. There can’t be any disagreement with the CJI-led Bench’s conclusion that an institution has to function within certain parameters and that is why there are precedents, rules and conventions. Also, one is bound to accept the settled legal position that there cannot be any direction to the CJI as to who shall be sitting on the Bench or who shall take up a matter as that touches upon the composition of the Bench.

But then, there is a ticklish situation: what if there are allegations against the CJI himself? Can he still act as “the master of the roster”? Will it not be appropriate to place such a petition before the next senior most judge or the rest of collegium members?  These are troubling questions and there are no easy answers. Democracy functions through institutions which draw their strength not just from the Constitution, but also from the rectitude of those manning them, enhancing their credibility. Unfortunately, the Constitution Bench headed by CJI Misra has missed the woods for the trees by limiting itself to merely declaring the settled legal position of the CJI’s supremacy in deciding the roster. The best of republican values and judicial virtues would get reinforced if everyone were to keep in mind the abiding wisdom in the old dictum: Caesar’s wife must be above suspicion.