Cracks in democracy
With the integrity and credibility of the highest court at stake, there is an immediate need to attend to the judicial crisis, asserts Gyan Pathak.
14 Jan 2018 3:48 PM GMT
All the three wings of governance in India – the Executive, the Legislature, and the Judiciary – suffer from the general disbelief of them being neutral and honest. People are helpless against the irregularities and injustices done by the legislators, top officials and ministers of the executives, and the judges from the judiciary. People have only limited scope of remedy for injustices, and for many of them, they are absolutely helpless over a truth that has been spilt over, as the four senior-most Supreme Court judges, next to the Chief Justice of India, accepted before the press. They went to the extent to allege that 'assigning of cases to benches of preference' was done, breaching court rules. It is for the first time, in India, we have the 'real head' of the executive, and the 'actual head' of the judiciary alleged of doing whatever they like to do against all 'traditions and norms'.
Can the allegations of the four senior-most judges of the Supreme Court against the Chief Justice of India be labelled simply as their 'grievances' or 'dissatisfaction'? Were they interested in some particular cases to be decided by themselves in their own liking but prevented by the Chief Justice of India by assigning the cases to some other courts? Had the Chief Justice any other motive in assigning those cases to the courts of his own preferences? There are many such questions which need to be answered to restore the confidence of the people in the judicial system, in the backdrop of the widespread feeling among the general public that one can get a case heard by some 'favourable' or an 'adverse' judge, to get a desirable judgement or a miscarriage of justice.
For an impartial justice, the tradition and jurisprudence deny power to a Chief Justice to send cases to the courts of his own 'preference', so that he cannot become a gatekeeper of justice as an interested party in favour of or against anyone. That is why there is a system in place, according to which a case is sent to a judge which minimises the risk of injustice. If allegations are proven to be true then the present Chief Justice of India has clearly violated the norms of the well-established system, and the reasons are best known to him.
Can our judges do nothing if certain rules or norms are violated, by the supreme custodian of those very rules and laws? If we believe the 'helplessness' expressed by the four senior-most judges, nothing can be done within the judicial system against such a violation. If it is so, the judicial system we have created fails to deliver justice, if the violator is the Chief Justice. This anomaly should be redressed because to 'violate a rule or norm' is not the call of the Chief Justice, and therefore, it must not be considered his privilege; rather it should be remedied within the judicial system.
Expressing helplessness and going to the press in the name of saving democracy cannot be accepted. Our honourable judges are absolutely right in challenging the authority of the head of the judiciary, which they should have done by proceeding against the 'violation of rules', which is the privilege of none. Any 'violation' is not also the 'official duty' of the Chief Justice 'to assign or transfer cases in an arbitrary manner in violation of rules sanctioned by the jurisprudence'. However, this is a debatable question, on which we need a clear answer in the form of law so that no judge should come into the public, in future, with the grievance that he is helpless in finding justice in the judicial system. "The CJI is only the first among equals nothing more and nothing less", said the judges themselves, and therefore, for the sake of justice, he has no privilege of 'violating any rule'.
Democracy will survive only when the judiciary functions impartially. For this, the country needs to take appropriate measures to prevent 'judicial orders' which 'adversely affect the overall functioning of the court' such as were claimed in the letter of these four judges submitted to the Chief Justice, who allegedly 'refused to listen to their concerns'. In this situation, a high-powered committee of justices, legislators, administrative officials, experts of judicial and public administration, and important personalities from the public and from the related field should examine the issues and come out with concrete measures.
It would be too early to jump to the idea of 'impeaching' the Chief Justice before the whole matter is examined and the allegations are found to be justified.
It is also an open secret that justices get further assignments after their retirement from the ruling establishments. It is alleged that many of them get such appointments in return for their favourable judgements. There have also been allegations against some judges in the past, who received financial or other benefits for themselves or for their wards etc. It is high time that such issues be discussed to ensure impartial justice.
Justices are also under the threat of losing their lives. It is clear from the letter of the judges, who also raised the issue of the mysterious death of Justice BH Loya, who was hearing the Sohrabuddin fake encounter case. The judges said that they had issues with the 'assignment of the case' also. It is a very serious allegation because it involves some very high profile political personalities.
The judges also said that they were annoyed that the medical college admissions scam was sent to court no 7 after a Justice Chelameswar-headed bench sent it to a five-judge bench of himself, the CJI and Justices Gogoi, Lokur and Joseph. It is also a high-profile case.
The 'unspecified irregularities in the judiciary', about which the judges did not disclose for national interest, should also be examined by competent authorities. Moreover, because the judges said many "undesirable" things have occurred in the judiciary lately, the administration of the Supreme Court is not in order and many things which are less than desirable have happened in the last few months.
There is clearly an urgent need for revamping the judicial administration and the system of appointment of the judges. Judicial discipline should also be ensured by making definite rules for administering justice to prevent erosion of faith of the people from this highest institution, in the backdrop, in which even the judges, who are supposed to be protecting the judiciary, don't seem to trust each other.
The integrity of the institution is at stake. And it must be guarded at all costs.
(The views expressed are strictly personal)
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