When judging judges, does the Supreme Court of India chicken out?

“Nemo est supra leges” – Nobody is above the law.

As a journalist covering the Supreme Court of India, it is indeed fascinating that even today, lawyers, journalists and laymen have not forgotten the infamous tenure of one of the former Chief Justices of India – Justice KG Balakrishnan.

His tenure might have ended in 2010, but the hullabaloo surrounding it continues. The allegations of corruption against him were widely debated in the legal and non-legal circles and the media splurged a good amount of premium space to discuss the same. Notwithstanding all of the above, and the cries for resignation of Justice Balakrishnan from the post of Chairman of NHRC – a post he came to occupy post his retirement from the Supreme Court – it seems that he is set to retire sans any hiccup, thanks in part to the Supreme Court of India.

The petition seeking investigation into the allegations against Justice Balakrishnan was filed in Supreme Court by NGO Common Cause in August 2013 and admitted on the 28^th of August the same year. The last hearing of the case was on February 7, 2014, more than a year back, when the Court had ordered that the matter be listed for final hearing “on Tuesday”. A year has passed, lot of frothy water has flown down the Yamuna; yet nothing has happened. The matter kept getting shunted down time after time, all thanks to Supreme Court’s supercomputer. The website of the Supreme Court now shows that the matter is “likely to be listed on April 21”, a few weeks before Justice KG Balakrishnan retires as NHRC Chairman rendering one of the prayers in the petition seeking his removal from the post, infructuous.

And Justice Balakrishnan’s case is not an isolated one. The list is long and the examples are hard to miss. In the last three years, the Supreme Court has not only feigned indifference while dealing with cases involving judges of the higher judiciary but also gone to the extent of intimidating people who brought such cases to the forefront by imposing costs.

In February 2013, a Bench of Justices Aftab Alam and Ranjana Prakash Desai not only dismissed a petition challenging the appointment of Justice Ramana (now a sitting Supreme Court judge) as a judge of the Andhra Pradesh High Court but also imposed a cost of Rs. 50,000 each on the two petitioners – one of them a Senior Advocate. Interestingly, the Court in its judgment categorically stated that the allegation made by the petitioners while true cannot be a ground for removal of Justice Ramana as the Collegium and the judge himself were unaware of the pending criminal charge against the judge. Be that as it may, the Court found it prudent to impose costs on the two advocates because they believed that “the real intent of the petitioners” was to malign Justice Ramana.

On February 22, 2014, the Supreme Court refused to hear a petition challenging allotment of land to some of the sitting judges of the Odisha and Gujarat High Courts. A Bench presided by Justice HL Dattu was adamant not to admit the plea and insisted that the petitioner approach the High Court. This was despite the vehement plea by advocate Prashant Bhushan that since the land had been allotted to High Court judges, they would not be in a position to hear the case without bias.

The “recusal” of the Supreme Court in the Justice Ganguly episode might, however, top the list. The then Chief Justice of India, P Sathasivam, who had promised that “justice will be done” when allegations of sexual harassment surfaced against Justice Ganguly, later changed his stance and issued an official statement that the Supreme Court does not have jurisdiction in the case since the alleged incident occurred after Justice Ganguly had retired.

And the most recent of all such incidents is the case of alleged caste discrimination by a sitting judge of the High Court of Judicature of Andhra Pradesh and Telengana. The petition was a filed by an Additional District Judge of Andhra Pradesh; yet the Supreme Court chose not to entertain the case. CJI Dattu, before whom the matter was listed, even went to the extent of saying that the case is a “service matter” and not one involving violation of Part III rights. If allegation of caste discrimination against a Constitutional functionary cannot secure the admission of an Article 32 petition, the message sent by the apex court seems to be clear – that fundamental rights can be enforced by us but not against us.

It is indeed an irony of fate that the apex court of the country which has two years of time to “clean up cricket”, and which indulges Senior stalwarts and allows them to mention “grievances” of corporate houses and get it listed early so that they don’t lose out on “valuable” “spectrums, real estates and coal blocks”, cannot admit a petition alleging violation of Article 17, even if the petitioner is a judge and even if the allegations in the petition clearly warrant a hearing on merits.

The most interesting of all the cases would be the contempt petition initiated by the Supreme Court against advocate Prashant Bhushan for his “half of the last 16 CJIs were corrupt” remark. Senior Advocate Shanti Bhushan had submitted details of the list of corrupt CJIs in a sealed cover to the Supreme Court in the case. Five years have passed thence and there is no visible sign of the case being listed lest the Court will have to break open the seal and let the cats out of the bag. And on the lighter side, Bhushan is not ready to apologise either. So the case might never see the light of the day.

It is nothing but a remarkable coincidence that there has been another addition to this list as I pen down this piece. Justice Dipak Misra and Senior Advocate Shanti Bhushan were at loggerheads in court room 5 as Bhushan argued for admitting a petition filed by his son advocate Prashant Bhushan seeking registration of FIR against retired Supreme Court judge Justice CK Prasad. Justice Dipak Misra sternly observed that if the petition is admitted “it will open a dangerous door in our democracy” while Senior Bhushan argued that not entertaining the petition will be a blot on the “credibility of the institution”. The petition was dismissed on the ground of want of locus.

I am not sitting in judgment over the merits of any of these cases. However, what is objectionable is that the court is not ready to go into the merits of these cases, and even if it agrees to consider such cases on merits, it subsequently plays a game of “hide and seek” (like in the case of Justice KG Balakrishnan). What is common in all these cases, is the confidence and knowledge that the Supreme Court is possessed of that if there is no action from its side, there would be none from any other quarters due to the immunity conferred by the Constitution and the clout bestowed on the judges by political mileage and contacts at the Bar.

It is this blatant indifference which the Supreme Court time and again parades while dealing with cases involving members and former members of judiciary that keeps robbing the institution of its much desired yet woefully inadequate credibility. The judges, many a time while doing so, are under the wrong impression that entertaining such cases would affect the credibility of the institution, all the while not realising or wanting to realise that they cannot be farther from the truth.

The judges of the Supreme Court would do well to remember that if judges cannot judge judges without bias, the institution will, sooner or later, go to the docks.