The Supreme Court's attitude towards the Judges bribery case has been disturbing.

The matter that is commonly becoming known as the 'judges bribery case' took another turn on Tuesday as a three-judge bench dismissed Kamini Jaiswal's petition asking for an SIT probe into allegations of bribery against judges in the apex court.

The court started its judgment on Tuesday with the words, "The facts are disturbing in the instant case." And they most certainly are. Unfortunately, that's not all that's disturbing. The Supreme Court has refused to look at the extraordinary circumstances surrounding the matter and has given convention higher standing than the essential principle of "no one can be a judge in their own cause".

Recusal cannot be asked on ground of conflict of interest

Even without proper investigations into the matter, the court is convinced there is no conflict of interest in this case. It then takes the issue one step further when it says that "recusal of a judge cannot be asked on the ground of conflict of interest". It also settled the legal position that the Chief Justice of India (CJI) would assign a case to a bench even if there were allegations against him in the matter.

The brashness of these directions is stunning. While the CJI has indeed not been named in the FIR, the fact that he is associated with the case means that letting him pick the judges would allow fingers to be pointed and rumours to spread. This can easily be remedied by taking the CJI out of the process. Further, while the CJI has powers mostly on the administrative side (his judicial powers are the same as the other judges), being the senior-most judge means that other judges would rarely assert themselves against him. All this could cause the faith of the people in the judiciary to dip, something the apex court has been very keen on avoiding.

The proper (and easy) procedure to follow in these cases would be to put the matter before the senior-most judges excluding the CJI. The Supreme Court certainly recognises the importance of seniority as is evidenced by the fact that the CJI is appointed on that criterion. The order passed by Justice Chelameswar and Justice Nazeer followed this principle even though it remained non-committal on whether the CJI would be part of this bench.

On the point of recusal (a concept literally defined as "to remove (oneself) from participation to avoid a conflict of interest"), it must be mentioned that even the Donald Trump administration saw Attorney-General Jeff Sessions recuse himself from the investigation into the Trump campaign. And the Trump administration is hardly the epitome of propriety.

In India too, Justice Anil Dave had recused himself from the NJAC case when it was pointed out that he was a member of the very body whose constitutionality he had to rule on. It was nobody's case that Justice Dave would be incapable of looking at the matter with an impartial mind. However, his recusal allowed for the entire matter to stay above controversy on this aspect.

Similar recusals were also seen when Justice RV Raveendran had recused himself from a case after discovering that his daughter was a lawyer in a firm that was doing legal work not connected with the litigation before him but for a company related to the litigant and when Justice Markandey Katju had recused himself in a matter as his wife held shares in a company that was a litigant in the case.

If anything, recusals increase the faith of the people in the judicial process. The court's insistence on looking at it as an attack on its reputation is less than becoming of the top court of the land.

Forum shopping

The court also repeatedly attacked what it saw as "forum shopping". This is when a litigant tries to choose a court which they feel would treat their claims most favourably. The Supreme Court has earlier said that unscrupulous litigants cannot be allowed to even think of indulging in it and called it "deprecable conduct".

However, is it really forum shopping if there is a concern that the judge has an interest in the case? In this case, it seems more likely that litigants are seeking an impartial adjudicator which should certainly be of paramount importance.

Furthermore, isn't the Supreme Court supposed to deliver justice regardless of the judges on the bench? How would it then matter if any set of judges adjudicates the matter? Indeed, this point was raised in the present case, when Justice Arun Mishra said it was unfair to discriminate among courts and insisting that “We are all equal”. Prashant Bhushan immediately countered this with: "If all judges are equal, when this matter was referred to five judges, why was it changed?"

The ground reality is that the Supreme Court is a polyvocal one and there is little one can do about that. However in matters like the present case, where the judge is linked to a case, the litigant's attempts to present their case before an unimpeachable bench cannot be called forum shopping.

Justice must be seen to be done

The Supreme Court has reiterated in multiple cases that justice should not only be done but also be seen to be done. In the present case, Prashant Bhushan said that he was not making any allegations against the CJI; on the contrary, he only wanted to protect him from the shadow of doubt by seeking his recusal from the case.

In such a context, the insistence on keeping the CJI at the centre of the drama is not doing the court's reputation any favours.

As Ajay Kumar wrote in Firstpost, public trust is very difficult to gain but is very easy to lose. Over the years, the Supreme Court has earned it and is seen as an impartial institution. To lose even an ounce of it over a matter like this would be simply too high a price to pay.

The Supreme Court is not infallible. Its insistence on acting like it is and all its judges are above reproach in every way is not befitting of its position as the highest court in the land. It must rise above the fracas and allow the matter to be decided by judges completely unconnected to the case. Only then can it claim to be impartial in theory and in practice, and start to repair the damage that has been done over the past few days.