The Daily Fix

‘The Supreme Court has ended as an institution’: 10 reads on this week’s judicial drama

Allegations of impropriety and heated arguments gave legal commentators plenty to chew on this week.

Heated scenes in the Supreme Court last week and an order from a Constitution bench this week offered plenty of material for commentators to dig in, considering India’s apex court was handling matters that could shake the public’s trust in the institution itself. On Monday, a three-judge Constitution bench passed an order saying there was no conflict of interest in the Chief Justice of India Dipak Misra choosing whom to assign cases to, even if his own conduct was the subject of those matters.

The matter came up last week when two Public Interest Litigations sought a court-monitored inquiry into what has come to be known as the Medical Council of India bribery case. The Central Bureau of Investigation is examining whether judges were bribed to overturn the Medical Council of India’s decision denying permission for a medical college to operate. Both PILs asked for a court-monitored inquiry, suggesting the executive could use the CBI investigation to undermine the judiciary. But they also asked for the matter to be heard without involving Dipak Misra, who had handled Medical Council of India matters earlier this year.

One Supreme Court judge seemed to agree to some extent, breaking convention to set up a Constitution Bench to look into the matter without deferring to the Chief Justice. But Misra quickly intervened, effectively nullifying that order and setting up a separate bench. And Monday’s order gave further support to his decision, saying the Chief Justice’s administrative handling of the court – like assigning cases to specific benches – cannot constitute conflict of interest.

Naturally, there were lots of reactions from all sides:

  1. “It’s really a very very sad day in the history of the Supreme Court – firstly, I have not seen this kind of extraordinary interest being taken by a Chief Justice in a matter which involves him directly, and secondly, because of the kind of unseemly proceedings which took place in the Supreme Court,” said Prashant Bhushan, who represented one of the petitioners in the case, in an interview to the Wire.
  2. “The scars inflicted on the foundation of this Institution must be healed as quickly as possible. Otherwise the credibility of this Institution, its acceptability and the love and respect it commands amongst the citizens will be seriously jeopardised,” writes Dushyant Dave, a senior advocate, on Livelaw.
  3. Pratap Bhanu Mehta, vice-chancellor of Ashoka University, makes a significant point in the Indian Express: “Taken together, both the chief justice’s and the judge’s conduct highlights one obvious fact: There is no Supreme Court left any more. In expanding its powers, the Supreme Court first replaced the rule of law with the rule of the court (they are not the same thing); now the rule of court has been replaced with the anarchic will of individual judges. The Supreme Court has effectively ended an institution.”
  4. “Propriety would plausibly demand that since the FIR pertained to a case where Justice Misra had been the presiding judge, as Chief Justice of India, he would not perform his default role of allocating Benches for determination of this case or exercise his prerogative of hearing the case himself,” writes Arghya Sengupta, research director of the Vidhi Centre for Legal Policy, in the Hindu. “Unfortunately, by allocating the matter to a Division Bench, the Chief Justice gave this principle a go-by.
  5. Raju Ramachandran, a former Additional Solicitor General, writes in the Print that “it is difficult to recall any moment as ugly and demoralising” as the Supreme Court’s behaviour last week.
  6. “It is also equally worrying that the Supreme Court Bar Association and several senior members of the bar were complicit in achieving this result,” writes Vikas Mahendra in the Wire. “The SCBA in fact even went so far as to demand that contempt charges be framed against fellow members of the bar who attempted to clear the air in a matter of such extreme importance.”
  7. Gautam Bhatia, on his blog, explains why the point is not whether the Chief Justice did influence the case, but whether he had the power to do so at all: “He might be the most honest judge that ever lived, but that is not the point; the principle is not that “no person shall be a (dishonest) judge in her own cause”. It is – for excellent reasons – simply that “no person shall be a judge in her own cause.”
  8. Colin Gonsalves, speaking to the Hindu, thinks the matter was “resolved amicably” and the real issue facing the court is the government’s actions against the judiciary. “The Central government today wants to saffronise the judiciary. It doesn’t want an independent judiciary. It doesn’t want judges of integrity. It doesn’t want thinking judges. It wants judges who will toe the line.”
  9. “Having served the institution as a lawyer and then as a judge of the apex court, I have very high hopes for the judiciary,” writes former Supreme Court Judge Santosh Hegde in the Print. “If friends and well-wishers of the judicial institution can’t convince it to get its act together, then god alone can save India. For me, it looks hopeless, but I still hope I am wrong.”
  10. Shanti Bhushan, a former law minister, offers a way forward in the Wire: “If the Supreme Court of India is to be saved, in my opinion, a bench with all the judges must take stock of the situation and consider the legal position dispassionately and wisely.”

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