Crisis in judiciary


Under the NDA-government, the higher judiciary appears to be passing through an unprecedented crisis with extra-ordinary circumstances that undermines its independence and accountability. Unfortunately, the higher judiciary is facing one crisis after another during the past four years since the present ruling dispensation took over the reins of the government. The judiciary has been witness to signs of a confrontation with the executive over judicial appointments to an unpleasant rift among Supreme Court judges besides the turmoil in the recent past. The move initiated by major Opposition political parties to impeach the Chief Justice of India is an unprecedented crisis. The motion sponsored by the opposition Members of Parliament, details of which cannot be revealed under Rajya Sabha rules until it is admitted, draws its substance and arguments mainly from the points raised by the four senior-most judges, whose dissent brought simmering differences to the fore. The main charge of the four senior judges, that CJI Dipak Misra selectively assigns cases to Benches of his choice, had some dark ramifications, including insinuations about the way he dealt with a petition by a medical college on the judicial and administrative side, and a case of suspected judicial bribery. Till date, the CJI has stuck to his position that as ‘master of the roster’ he has the prerogative to allot cases to different benches that are available on particular working days. The question arises whether all senior judges of the Supreme Court, who have questioned this entirely wrong. While constituting the collegium system for judicial appointments, the Supreme Court said ‘consultation with the Chief Justice’ meant ‘consultation with a plurality of judges’. The argument that the power to allot cases should be exercised by the Chief Justice in consultation with senior judges may have some substance from this point of view. At the same time, the counter-argument is that a principle evolved for appointments cannot be stretched to cover routine functions such as constituting Benches. But this still raises the question: could the CJI have better addressed his colleagues’ concerns and put in place an informal consultative system, so that the damage the institution has suffered could have been avoided. In fact, the circulation of the agenda and consultations with other senior judges could also have averted this crisis, which is being witnessed by the public at present. Under the given circumstances, the MPs, who have sponsored the motion do not have the numbers to get it passed. It is wholly within the power of Vice-President and Rajya Sabha Chairman M Venkaiah Naidu to decide whether to admit the motion or not. An on Monday, the RS Chairman refused to accept the demand of the opposition political parties. Here the impeachment attempt led by the Congress may be perceived in some quarters as no more than a political move to highlight its claim that key democratic institutions are in danger under the present regime. To the common masses, the basic question is whether it is the internal rift or the executive’s attempt to keep it under its thumb that poses the greater danger to the judiciary. Some may have the perception that any inquiry into the CJI’s conduct will imperil independence of judiciary, and others may argue that ignoring the allegations will be more dangerous. The Constitution of India envisages the impeachment of Supreme Court judges as a rigorous political process driven by Parliament. The Constitution has an in-built safeguard such as an inquiry by a panel of judges, and a two-thirds majority in both Houses. The intention is to provide for both accountability and independence of the judiciary. Neither of these objectives can be dispensed in favour of the other. The point is that the political parties should endeavour to settle their political points and scores politically through the ballot and not go to the extent of reducing the highest constitutional posts or other constitutional modes of governing the country to a status of buffoonery and improbabilities as that would set to naught the balanced equations which the constitution has provided for running this country democratically and as per laws established. Besides this, all attempts to make a mockery of the higher judiciary should be avoided to the best possible extent.