Who questions the judiciary? SC says conflict of interest no ground for asking for CJI's recusal, no FIR can be filed against sitting judges

The Supreme Court on Tuesday said it was "highly improper" to allege conflict of interest to seek recusal of the Chief Justice of India (CJI) from hearing a plea seeking SIT probe into an alleged case of bribery in the name of judges.

The apex court said it appeared that successive petitions were filed two days simultaneously to avoid the exercise of power by the CJI in allocating cases which was "clearly an attempt at forum hunting and has to be deprecated in the strongest possible words".

"It was highly improper for the petitioner to allege conflict of interest in the petition filed that the Chief Justice of India should not hear on judicial side or allocate the matter on the administrative side," a bench of Justices RK Agrawal, Arun Mishra and AM Khanwilkar said.

The bench also settle the legal position that only the CJI could assign a case to a bench even if the matter involved allegations against him, reported The Indian Express.

The apex court's order came while rejecting the petition filed by lawyer Kamini Jaiswal seeking an SIT probe into an alleged case of bribery in the name of judges. The bench said there was no conflict of interest in such a matter and making such "scandalous remarks" also tantamount to interfering with the administration of justice.

 Who questions the judiciary? SC says conflict of interest no ground for asking for CJIs recusal, no FIR can be filed against sitting judges

Representational image. AP

"In case judge is hearing a matter and if he comes to know that any party is unscrupulously trying to influence the decision-making or indulging in malpractices, it is incumbent upon the judge to take cognisance of such a matter under Contempt of Courts Act and to deal with and punish such person in accordance with law as that is not the conflict of interest but the purpose for which the entire system exists," it said.

The apex court observed that such things cannot be ignored and recusal of a judge cannot be asked on the ground of conflict of interest. The bench said "it would be the saddest day for the judicial system of this country to ignore such aspects on the unfounded allegations and materials".

Independence of judiciary cannot be left at the mercy of CBI or police

The court also observed that the independence of judiciary cannot be left "at the mercy of the CBI or police". It reiterated that no FIR can be lodged against a sitting judge of the apex court or the high courts.

The bench referred to a 1991 constitution bench judgement that had held that registration of FIRs against sitting judges of the higher judiciary was not permissible. "Thus, the instant petitions as filed, are a misconceived venture inasmuch as the petition wrongly presupposes that investigation involves higher judiciary, that is this court's functionaries are under the scanner in the aforesaid case; that independence of judiciary cannot be left at the mercy of the CBI or that of the police is a red herring," the bench said.

The apex court said there was no "reflection" of any name of the judge of apex court in the FIR lodged by the CBI in the case in which allegations of bribery were levelled for securing settlement of cases relating to medical colleges. "Any complaint against a judge and investigation by the CBI if given publicity, will have a far-reaching effect on the judge and the litigant public. The need, therefore, is of judicious use of action taken under the Act," the bench said.

Referring to the constitution bench verdict of 1991, the top court said it had observed that in order to ensure independence of judiciary, the apprehension that the executive being the largest litigant, it was likely to misuse the power to prosecute the judges.

It said there cannot be registration of FIR against the judges of higher judiciary without consultation with the CJI and, in case there was allegation against the CJI, the decision has to be taken by the President in accordance with the procedure prescribed in the judgement. "There cannot be any FIR even against the civil judge/munsif without permission of the Chief Justice of the concerned court; and rightly, FIR has not been registered against any sitting judge," it said.

"Otherwise, on unfounded allegations, any honest judge to the core can be defamed and reputation can be jeopardised. No judge can be held responsible for what may, or has happened in the corridors, or for 'who purports to sell whom'," the bench noted in its order.

The bench also said it was apparent from the facts that no favourable order was granted by the top court in the medical college matter in connection of which an FIR has been lodged by the CBI. "Thus, it is a far-fetched and too tenuous to even assume or allege that the matter was pending in this court for which any bribe was to be delivered to anyone," it said.

Updated Date: Nov 15, 2017 08:33:44 IST