Almost exactly one year ago, in the Judge Loya Case, the Supreme Court laid down the legal principles to determine when requests for court-sanctioned investigations into serious wrong-doing would or would not be granted. Recall that in that case, the Supreme Court took an interventionist approach: it did not merely assess whether the evidence had met a prima facie threshold of credibility, but rather, it went deeper, assessing the quality of the evidence, and subjecting it to detailed scrutiny on the touchstones of both internal consistency, and external plausibility. It was an approach that I strongly disagreed with the time (for reasons detailed in the linked post), but whether right or wrong, that was the position the Court took.
It is in this context that we must analyse today’s order mandating an investigation into “bench fixing” at the Supreme Court, to be probed by Retd. Justice A.K. Patnaik, with the assistance of the CBI, the Intelligence Bureau, and the Police (recall that these proceedings arose out of sexual harassment allegations levelled against the Chief Justice). Has the three-judge bench of the Court followed the approach in the Loya Case? As the order comes on the back of three affidavits filed by Advocate Utsav Bains, it is the contents of these affidavits that must be studied in some detail.
[Regrettably, no analysis can be conducted of the order in In Re: Matter of Great Public Importance Touching Upon the Independence of the Judiciary, as all the affidavits have been placed before the Supreme Court in sealed covers.]
[Regrettably, no conclusion can be drawn about the Court’s order in In Re: Matter of Great Public Importance Touching Upon the Independence of the Judiciary, as no reasons are available from which to draw conclusions.]
[This post will be updated if and when the sealed covers are unsealed, and sunlight allowed into the corridors of the Supreme Court again. However, as Justice Patnaik has been asked to submit his report in a sealed cover, the prognosis is not optimistic.]