Open Forum

New Delhi, 1 February 2018

Rift in Judiciary

KEEP POLITICS AT ARM’S LENGTH

By Dr S.Saraswathi

(Former Director, ICSSR, New Delhi)

Unstoppable politics has already entered the portals of the judiciary with the CPM General Secretary, indicating that the Opposition parties have started discussions on the present judicial crisis and the possibility of moving an impeachment motion in the Parliament against the Chief Justice of India.

He was referring to the crisis triggered by the accusation of judicial impropriety against the CJI of the Supreme Court by four senior-most judges. However, this reaction has not received immediate approval of any principal Opposition party. The Congress is maintaining meaningful silence on the proposal except for a cryptic comment of its President that the points raised by the judges are “extremely important”. It put out a statement asking the judiciary to discuss within itself the issues raised by the four judges.

The Samajwadi Party spokesperson rejected the proposal for impeachment on the ground that it is an internal matter of the judiciary and must be resolved by the judges themselves. But, the party wants full details behind the issues. The DMK, TMC, and TDP are also not in favour of any drastic action against the CJI at this juncture. Importantly, the CPM has not given the grounds on which it wants to initiate impeachment proceedings.

The main complaint of the four judges was that “cases of national interest” were being allocated to “preferred Benches” in the apex court.  The case in question related to the PILs on the death of the CBI judge BH Loya, who was hearing the alleged “fake encounter” case of Sohrabuddin Sheik, which were allocated to the Bench of the CJI.  

As is known, the four judges addressed a press conference on 12^th January to vent their grievances against the CJI – a move hitherto unknown. The Executive Body of the Supreme Court Bar Association passed a resolution that all pending PIL petitions be transferred to the court of the CJI and if the CJI could not for some reason hear a PIL, it could be assigned to the Bench of one of the senior-most judges.

By convention, the CJI is the master of the roster and assigns various cases to different Benches.  It is also an established practice that the CJI first hears important cases of public interest or sensitive matters.  If he is not willing to undertake this for some reason, it should be assigned to the senior-most judge of the Supreme Court.

This practice was also confirmed by the Supreme Court in 1996 in a case pertaining to bribery charges against some former members of the higher judiciary to manipulate court orders in favour of some unrecognised medical colleges. The court held that it was “the duty of the CJI to assign judicial work to brother judges”, and that “by doing so, he does not become a judge of his own cause”. It established the authority of the CJI in allotting cases by stating that “it is contempt to imply that the CJI would assign it to a Bench which would not pass an order adverse to him”.

The apex court said that if such allegations were to be considered …then no judge would be spared. The judge told the petitioner’s lawyer that the allegation “amounted to a deliberate attempt to scandalise the institution and denigrate the system”.

In the controversy raging today, five serious allegations are made by the four judges that the administration of the Supreme Court is not in order; some senior judges arrogated to themselves the “authority to deal with and pronounce upon” cases over the past months; administrative powers are misused by the CJI to selectively assign cases to judges of his choice; cases of far-reaching consequences are assigned without any rational basis. Pertinently, the complaints are mostly about the basis of selection of Benches to hear cases and not about any individual judge.

Hardly a year ago, the question of declaration of assets by judges created a big controversy in which a former CJI was involved. The CJI’s contention was that there was no need to “reach a consensus” and also that the apex court need not give advice to High Courts on the issue of declaration of assets. A judge of the Karnataka High Court was reported to have questioned the authority of the CJI to speak for all judges of the Supreme Court.

Protecting the dignity of the entire judicial system is the duty of not only the Bar and the Bench, but of the entire constitutional machinery established in the country. If politics of political parties is allowed to enter into this area, the consequences would be catastrophic for the future of democracy in the country where the judiciary is vested with the power to interpret the Constitution.

It is becoming  all the more important since the State, meaning the Union or State Government, is increasingly becoming a party to litigations thereby bringing interested political parties to take sides openly. Divisive politics is fast spreading in the country under the guidance, encouragement and even leadership of political parties at times. The judiciary has to protect itself from external interference in order to preserve its independence.

Bouts of tension between judges may be happening and may be known to persons within the judiciary. They do not come in the open and become subject matter for public debates. The open schism enacted in an appeal court in Queensland in Australia in a murder case in 2015 between the President and the CJ is said to be a rare instance. It was depicted as a “gross violation of judicial ethics”.

The judges cannot be expected to form a cohesive block all the time on all issues. Diversity is also an essential component of fair and impartial justice. Dissenting verdicts and reversal of judgements on appeal are common. But, they are not samples of incoherence or rift, but differences caused by evidence and interpretation necessary for dispensation of “justice”. The theory of “collegiality” was propounded by a judge of the Supreme Court in Canada to institutionalise them to work for common interest in getting the law right.

What we see as rift in the judiciary today is caused by non-juridical matters and external influence. Hence, it is a challenge to our basic democratic norms and practices. It is the responsibility of individual judges to safeguard the independence of the judiciary and protect the dignity of the entire judicial system against onslaughts from within and outside.

There are different practices of allocation of cases in various countries. In the US, all nine judges of the SC hear all cases and there is no separate Bench. In UK, cases are allocated on random basis and the President or Deputy President will sit on most cases and specialists in particular areas may be selected. In South Africa, there is no allocation of cases and a quorum of 8 or 9 out of 11 judges hear all cases. In Australia, a roster is proposed by the CJ for each case, but CJ’s power is only recommendatory.

Political parties on the prowl are likely to pick the point of assignment of cases to Benches unless the judiciary maintains solidarity and keeps politics at arm’s length. --- INFA

(Copyright, India News & Feature Alliance)