Crises in Judiciary in India?

February 1, 2018

Is it justified to showcase internal crisis of an institution, as paramount as the Indian Judiciary, in the open? In the context of the press conference organised by the 4 senior-most judges to showcase the lack of consensus in the judiciary, the question in the mind of the reader comes: Whether the judiciary has enough mechanisms of its own to prevent such crises in future and uphold transparency, accountability and openness, which are some of the pre-requisites for a passionate democracy?

 

 

 

 

The Preamble of the Indian Constitution declares that the people of India, solemnly resolved to constitute India into a sovereign, socialist, secular, democratic, republic and to secure to all citizens : justice- social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and opportunity; and promote fraternity among all.

Since independence, the 3 organs for governance in India namely, Executive, Legislature and Judiciary have been quite successful in upholding these ideals and the tripartite system of governance, i.e. “Separation of powers”, ascribed by Montesquieu in his “The Spirit of Laws” (1748).

The Judicial system of India empowered by Indian Constitution and its landmark judgments is considered as one of the most robust and influential judicial institution worldwide. It has been the keystone of Indian democracy and has strengthened Indian Polity at every occasion. This

institution which in cases like Keshavananda Bharti vs Union of India, 1973; Maneka Gandhi vs. Union of India, 1978; S.R. Bommai vs. Union of India, 1994 etc. has shown itself as the true guardian of Indian constitution but has in recent times been criticised for its opaqueness, favouritism, corruption by constitutional experts and organisations such as Transparency International.

 

Chelameswar, Justice Kurien Joseph, Justice Gogoi and Justice Madan Lokur, resorted to an alternative which none of their predecessors had adopted. They mentioned reluctance of the honourable Chief Justice of India Dipak Misra to consult the senior-most judges of the Supreme

Court in decision-making.

George H Godbois, in 1967, questioned the claims about the Supreme Court of India being “the most powerful court” in the world (Gadbois 2017). However, an attempt to justify the powerful and robust outlook of the Supreme Court of India has been made in the coming paragraphs.

The Supreme Court, since its establishment has been introspecting and evolving itself and its functions, according to the rising expectations as well as changes in the political, social and economic structure of the country.

First, the Supreme Court, with its interpretations has broadened the scope of Article 21 of the Indian Constitution, by providing rights, such as right to pollution-free air (Subhash Kumar vs State of Bihar, 1991), right to free legal aid {Article 39A; Husainara Khatoon vs State of BIhar (1979)}, “right to reputation” (Kishore Samrite vs State of UP, 2013) and “right to privacy as a

Fundamental Right” (K.S. Puttaswamy, 2017).

After inventing the “basic structure doctrine” (Keshavananda Bharti vs Union of India, 1973), “right to free legal aid” (Anil Yadav vs State of Bihar, 1981), “public interest litigation” (S.P. Gupta case, 1982), and other such remarkable breath-taking judgements, the Supreme Court of India has only strengthened the claim that it is “the most powerful court” in the world.

The Supreme Court has also been ensuring the implementation of various doctrines in order to ensure a well-fabricated society, such as:-

1. Right to be heard (Audi alteram partem) which derives its roots from the principle of natural justice and this directs the court to listen to the other side;

2. No-one should be judge in his/her own case (Nemo debet esse judex in causa propria sua), to prevent bias.

3. The monarchy or any other authority is regarded as the legal protector of citizens who are unable to protect themselves. (used in Charan Lal Sahu vs Union of India, 1990 case, in which the court ordered the Legislature to amend the Fatal Accidents Act, 1855 in light of Bhopal Gas tragedy so as to protect the civilians by paying compensation, interim relief and thus, prevent future accidents).

4 Precautionary principle, which requires the state to anticipate, prevent and attack the causes of environmental degradation. (M.C. Mehta vs Union of India, 1997).

 

ensure that religion does not become an impediment to the realisation of Fundamental Rights and potential of Indian citizens}.

6. “Ecology or public trust” doctrine (In M.C. Mehta vs Kamal Nath case, 1997, the doctrine of “ecology or public trust” held that certain common properties such as rivers, seashore, forest, air, were held by the government in trusteeship for the free and unimpeded use of general public).

Second, it is a constitutional court like no other. Article 124 of the Indian Constitution deals with the establishment and constitution of the Supreme Court. In the original article, the number of judges prescribed in the Supreme Court were 7, excluding the Chief Justice of India, which at

present, stands at 30.

One of the most celebrated judges in the judicial history of the world, Ronald Dworkin has given the concept of “hard cases” which has acted as a lighthouse for Indian judiciary for interpretation of community’s legal practices by “viewing law as integrity”, i.e. “propositions of law are true only

if they are derived through the principles of justice, fairness and procedural due process.

As the history tells us, the Supreme Court has demonstrated how to enforce accountability, responsibility and consensus within itself.

Though the presentation of grievances through the epoch-making press conference has been perceived by many to be shaking the credibility of the institution.

 

 

In the light of this incidence, four issues arise for the constitutional experts to address:

 

First, the sanctity of the institution of Judiciary in India. It is a basic premise for any written constitution across the world to have an independent judiciary. And India is no exception. An independent judiciary marks a vibrant functioning of democracy. And in an experimental democracy and quasi-federal structure of governance in India, a law-adjudicating institution like Judiciary has no option but to be independent and unbiased.
Second, the functioning of the Chief justice of India. The office of the CJI has been a symbol of the entire institution of Judiciary. He is first among the equals. And conventionally he has functioned in consultation with the senior-most brother judges of the Supreme Court.
Third, the difference of opinions and a conflict of ideas among the judges. Has it been new? No. But was there no other way the differences could have been showcased.
And the fourth, should people affiliated with any political party comment on the ongoing tussle?

On a preliminary level, we can observe the linguistic misconceptions using which the electronic and print media portrayed the entire incident. Some even called it a revolt, rebellion or a mutiny challenging the basic premise of the honourable Supreme Court of India, that is its inherent nature to be supreme and just in the matter of law.

The debate whether the judges chose the best alternative available to them or not remains to be analysed from 3 perspectives:
Firstly, we need to understand what compelled the judges to take an unprecedented step. They have an impeccable record of integrity, erudition and capability, as they have showcased in their individual careers, respectively. It is their duty as the Supreme Court judges to protect the Constitution and democratic regime in the country. B.A. Desai, the former additional solicitor general of India, mentions the conventional role played by the Attorney General of India to ensure the undiluted faith of the public in the independence and impartiality of the Indian Constitution.

Secondly, if these crisis are as grave as they appear at present and the judiciary is divided, then the implications it might have on democratic regime in India is an issue which needs expeditious attention. And the last resort remains internal discussions and consensus building. Ujjwal Nikam, a prominent public prosecutor, mentions that the organising the cumbersome press-conference should not set a precedent for the subordinate judiciary mechanisms as well as for the Supreme Court in future.

Thirdly, we, as a nation, should also note that the full facts are not out in the public and, may never be. Sanjay Hegde, a senior advocate in the Supreme Court, identifies that the courts, if required only speak through the written records, judgements and decrees and not through oral statements.

In 1997, the Supreme Court of India adopted a charter called the Restatement of Values of Judicial Life in order to serve as a guide to be observed by judges and was considered essential for an independent, strong and respected judiciary. The charter also advices the judges to “stay away from political partisanship and media”.
At the same time, it needs to be recognised that the judges are the best arbiters when the laws need to be modified. For example, Justice Dalveer Bhandari of the International Court of Justice interacted with the media in the Kulbhushan Jadhav case, 2017, even when the final judgement was pending.

Any institution in a democracy should never fall victim to be recognised by the personal capacity of the office-holder. The institution has to be recognised with the office rather than the person holding the office.

Lucian Pye has argued that India’s social, political and economic development process passes through 6 crises, namely, Participation,

 

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