Saturday, Dec 15, 2018 | Last Update : 12:46 AM IST
The rift in the Supreme Court will allow politicians to interfere with the judiciary.
Internal issue which judges can resolve
Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” These immortal words of Justice Louis D. Brandies, one of the most well regarded US Supreme Court judges in history, were perhaps in the mind of the four seniormost justices of the Supreme Court of India, when they hurriedly convened a press conference to air their grievances on the manner in which the internal administration of Supreme Court is being run.
The first big spectacle after the press conference was the visit of a senior Left parliamentarian to the house of one of the judges. The said parliamentarian explained he wanted to understand the judges’ concerns on behalf of Parliament. He said that it is the absence of a National Judicial Appointments Commission that is resulting in such problems and the issue is to be dealt with by Parliament.
All politicians united and passed an amendment that required a politician and two nominees in the garb of eminent persons to also sit at the table to select judges. However, the NJAC was struck down as violative of the basic structure of the constitution, independence of the judiciary being part of it.
The irony of the situation can be grasped in plain sight when the so-called acts on administrative side of the Chief Justice pointed out by senior judges are now eing used to raise the possibility of an accord and understanding between the government and the CJI and an effort to favour the government. This is being done by the very spectrum of politicians who first initiated the NJAC to ensure political participation in the selection of judges.
What citizens at large need to understand is that under no circumstances can this country afford to face the peril of an internal discord in the ranks of the judiciary that is being misused to compromise judicial independence in any manner. A group of judges with clashing egos and conflicting views is any day better than the ones selected with the participation of the political class. It is necessary to establish a robust internal mechanism to deal with the delinquency and misconduct of individual judges. Impeachment is a political tool and when the apprehension is of collusion with the government, which enjoys a parliamentary majority, it becomes unworkable.
The role of the Chief Justice of India as the Master of Roster is of foundational importance. In the Supreme Court, a system is already in place where various benches are allocated work according to the area of law assigned to the benches. These areas correspond to various codes, and the major allocation takes place through computer-generated lists based on these codes. The real issue comes in regard to politically-sensitive cases and other class of cases which the registry may flag as sensitive. The only aspect that remains is the forming of Constitution Benches to hear particular cases, which provides an added layer of safety in numbers, and is the legitimate domain of the Chief Justice. Any possibility of a Chief Justice is assigning cases to favour certain political persons, party or government by abusing his position as a Master of the Roster has the potential to destroy public trust in the higher judiciary. This calls for reduction of discretion and development of a case management and allocation system that works on pre-set norms and automatically allocates cases once the subject codes are assigned to various benches. Eom.
The writer is president-elect, Bar Association of India
It’s not our business to interfere
The judicial system in our country is one of the pillars on which Indian democracy stands. There have been several turning points in the history of this great nation, but all along the Supreme Court has stood the test of time and has been the final arbiter in disputes. Last week, an unprecedented event took place when four sitting senior judges came out and said that “administration of the Supreme Court is not in order”. As a responsible political party that has always kept the interest of the nation above that of the party’s, we in the Congress were deeply perturbed.
Politicians and our political party represent the people of the country. Our policies are based on the needs and demands of people, hence when such a development takes place, it is imperative for us to express ourselves. Now that certainly does not mean we are interfering in the judiciary or the judicial process. The judicial system in this country is still very robust and does not allow for political interference, neither will it. But the observations made by the judges and the issues raised by them in the press conference and in the letter are extremely disturbing and have far-reaching consequences for the values we hold sacred that are safeguarding democracy and preserving the independence of the judiciary.
It is a wrong premise to assume that this unprecedented situation will allow politicians to interfere in the judicial process. Instead, it may move towards strengthening the judiciary by the points raised by the four judges. In a statement, the Congress Party has already stated that it earnestly appeals that the full court of the Supreme Court should take up the issues raised by the four judges and find solutions that are consistent with the traditions and conventions of the judiciary (pointed out by the four judges) that will preserve the independence of the judiciary. There is no way in which this be construed as interference. It is just a response to an evolving situation concerning one of the important pillars of the Indian democracy. As political parties and politicians are representatives of the people of the country, it becomes our duty to highlight the issues that need to be addressed. But this doesn’t mean that we, as politicians, will intercede.
As is being seen by all in the last couple of days, ways and means are being found out to come to a resolution within the judiciary keeping up with longstanding traditions and conventions of the courts. All these actions of coming to a resolution are happening within judicial institutions. There is no third party intervention taking place. None of us have interfered; we have not gone to town sermonising about “political interference”. The gist of the matter is that the concerns emanating from within the courts should be addressed urgently so that the faith of the nation remains rock solid in judicial institutions. Hence, it is incorrect to say that the present situation will make politicians interfere. But the fact remains that whenever issues of national importance are raised or will be raised, politicians will have to speak about the developments. That is exactly is what has happened this time too. The judiciary in this country is independent; it has taken up cases, both in favour of and against politicians, depending upon the merits of the case. The RSS has raised several issues, which need to be condemned outrightly. As far as we are concerned, we are a responsible national party and there is no question of our interference.
The writer is secretary, AICC legal department, and a Supreme Court advocate