Senior Advocate Indira Jaising has tweeted that “an enquiry by judges junior to the Chief Justice of India violates the fundamental principle that the fact finding body cannot be junior to the person being enquired into”. The tweet is in the context of constitution of a panel comprising of the Justice S A Bobde, Justice Ramana and Justice Indira Banerjee to enquire into the allegations of sexual harassment against Chief Justice Ranjan Gogoi. Interestingly, in relation to the allegation against the previous CJI Dipak Misra of allocation of cases to handpicked benches, Ms. Jaising had supported the view that the stature of the CJI among other Judges is no more than that of ‘first among equals’.
In the letter(addressed to the then CJI Dipak Misra) released last year by four Judges, including the present CJI during their press conference, the Judges had written, “The convention of recognizing the privilege of the Chief Justice to form the roster and assign cases to different members/benches of the Court is a convention devised for a disciplined and efficient transaction of business of the Court but not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues. It is too well settled in the jurisprudence of this country that the Chief Justice is only the first amongst the equals – nothing more or nothing less.” Indira Jaising had enthusiastically participated in the press conference, reaching the venue well before the beginning of the presser and even asking questions to the Judges from among journos. She had congratulated the four Judges and hailed presser as historic.
The Supreme Court has held in the matter of Shanti Bhushan V. Supreme Court of India, filed in the context of the same allegation against the then CJI Dipak Misra, that all the Judges of the Supreme Court are equals under Article 124 of the Constitution. Supreme Court has held that the word ‘first’ in the phrase ‘first among equals’ connotes seniority in the context of CJI’s role as spokesperson and representative of the judiciary in its dealings with the executive, government and the community, apart from the administration of the Court.
Even if ‘seniority’ of the Judges is considered, the committee cannot possibly have a Judge as a member, who is senior to the CJI. The present committee consists of the 2nd and 3rd most ‘senior’ Judges, in addition to a lady Judge. Ms. Jaising may not agree to a committee picked by the executive, since she had attacked the NJAC Act on the ground that it gave power to the executive “to determine who will not be a Judge”. No Judge can pick members for the committee from outside the judiciary since all Judges are ‘junior’ to the CJI. The Gender Sensitisation and Internal Complaints Committee (GSICC) has no power to look into allegations against Judges, and in any case, a Judge ‘junior’ to the CJI is its chairperson.
The latest attack from the UPA era Additional Solicitor General should be understood in the context of what Arun Jaitley said about the whole episode. It will be apt to quote some excerpts from Mr. Jaitley’s blog:-
“The last few years have witnessed the consolidation of ‘institution destabilizers’ in a major way. Many of these destabilizers represent Left or ultra-Left views. They have no electoral base or popular support. However, they still have a disproportionate presence in the media and the academia. When ousted for mainstream media, they have taken refuge in the digital and social media. They continue to believe in the old Marxian philosophy of ‘wrecking the system from within.’ They use free speech to destroy the judicial institution.
This section has found a convenient ally in a small but vocal section of the Bar. This section exploits the judicial refrain of excessively using the power of contempt. However, they themselves have no hesitation in contemptuous behaviour themselves. They go public against individual judges, including the Chief Justice, when they fail to get a favourable order. They carry on social media campaigns against judges who write judgements adverse to them. They have little regard for truth but masquerade as protectors of public interest. Their behaviour in courts is offensive both to the Bench and their opponents. They threaten walkouts if judges are in disagreement.”
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