Pratap Bhanu Mehta - The judiciary has created a crisis of institutional credibility for itself // Alok Prasanna Kumar - This is the gravest crisis the judiciary and the legal profession have ever faced in India
The Supreme Court of
India is facing its worst crisis of credibility since the Emergency. With an
occasional exception, the quality of the court’s reasoning, the inconstancy of
its judgment, the abdication of its constitutional role in some cases, and its
overreach in others, are already denting its authority. But the institutional
crisis that the Supreme Court has now created for itself will puncture more
holes in the authority that it so valiantly tried to exert. It will also create
the conditions under which it will be easier to legitimise diluting judicial
independence.
The current crisis was
occasioned by an order passed by Justice J Chelameswar to constitute a
five-judge bench in a petition filed by CJAR that demanded that a SIT be
constituted to look into an alleged corruption scandal pertaining to a case
involving a medical college. There are two issues: Can the chief justice be
part of the hearing, since the scandal allegedly implicates a judgment the CJI wrote,
even though he has not been named in the FIR? Second, could a constitution
bench be constituted bypassing the chief justice in violation of the current
procedure through which such benches are constituted? This is not the place to
recount the ugly sequence of events that transpired. But consider the different
ways in which the judiciary has now rendered itself vulnerable.
First, there is the
vulnerability that arises from the CBI itself. There are issues of corruption
in the courts. The judiciary has failed to find a mechanism to deal with
allegations of corruption within its ranks. Every justice in the court needs to
be above suspicion.
But a lot of care needs to be exercised so that the anti-corruption measures taken do not undermine the independence of the judiciary. This is not a very popular thing to say, but we should also consider the possibility that the threat of being investigated by the CBI, or speculative naming (or suggestion in a CBI report), can itself also be an instrument of seeking recusals or undermining the independence of judges, as is sometimes done with other government officials. This subtle institutional challenge to the judiciary is not outside of the realm of possibility. More than the conduct of Justices Misra and Chelameswar, the judiciary will have to think of how it will deal with instances where the Chief Justice of India or other justices becomes hostage to possible CBI innuendo... a clamour for reforms that undermine independence in the name of accountability will be a natural consequence of the current chain of events. It is precisely because such a danger looms that the judiciary’s conduct needs to be above board. And here, the judiciary has made itself doubly vulnerable. A court carves out its authority by the compelling character of its reasoning on behalf of constitutional values. We have had a succession of chief justices who have failed to exercise intellectual leadership and the present chief justice is no exception.. read more:
But a lot of care needs to be exercised so that the anti-corruption measures taken do not undermine the independence of the judiciary. This is not a very popular thing to say, but we should also consider the possibility that the threat of being investigated by the CBI, or speculative naming (or suggestion in a CBI report), can itself also be an instrument of seeking recusals or undermining the independence of judges, as is sometimes done with other government officials. This subtle institutional challenge to the judiciary is not outside of the realm of possibility. More than the conduct of Justices Misra and Chelameswar, the judiciary will have to think of how it will deal with instances where the Chief Justice of India or other justices becomes hostage to possible CBI innuendo... a clamour for reforms that undermine independence in the name of accountability will be a natural consequence of the current chain of events. It is precisely because such a danger looms that the judiciary’s conduct needs to be above board. And here, the judiciary has made itself doubly vulnerable. A court carves out its authority by the compelling character of its reasoning on behalf of constitutional values. We have had a succession of chief justices who have failed to exercise intellectual leadership and the present chief justice is no exception.. read more:
Alok Kumar - This is the gravest crisis the judiciary and the legal profession have ever faced
November 10, 2017, witnessed a gross and unconscionable abuse of power by the Chief Justice of India, Justice Dipak Misra, unparalleled in the history of the Supreme Court of India. As other commentators have pointed out (here, here, here and here) it is, if not the lowest, then certainly one of the lowest points in the history of an institution that ordinary citizens of India look up to. The credibility of the institution, built up over several decades, already under stress in the last few years, crumbled in two hours of high drama. It is important to remember how we got here, why the Chief Justice of India’s actions are so unpardonable and why things may never be the same again....
It is true that the names of Misra or his
two colleagues on the bench are not mentioned in the first information report
filed by the CBI. But we must remember that according to the judgement of the
Supreme Court of India in K Veeraswami v Union of India, no complaint can
be made against a judge of the Supreme Court without the written permission of
the Chief Justice of India, and if the complaint is about the Chief Justice of
India, then permission has to be obtained from such judge or judges of the
Supreme Court as the Union Government sees fit. The CBI thus could
not, by itself, have named any Supreme Court judge in the FIR, without the
government taking the requisite permissions...
The writ petition was
filed given that Misra’s conduct was in question and, when it came to a
judicial inquiry about the same, he cannot be allowed to be a judge in his own
cause. This cardinal principle of natural justice, the cornerstone of any
independent and impartial judiciary, and one which courts in common law
jurisdictions have recognised for over 400 years was violated with impunity.
While the order cites case-law and precedent to assert his powers as a master
of the rolls, it does not, even in passing, address the argument made by
Prashant Bhushan and the petitioners that Misra, as Chief Justice of India,
should have recused from hearing this case. Misra also deliberately avoided
including any of the next six
senior-most judges in the “Constitution Bench” he set up, suggesting that he
had either no faith in his fellow judges to be neutral and impartial in this
matter or he feared any neutrality and impartiality in this matter. Neither
bodes well for the judiciary... On matters of integrity and accountability,
the judiciary has always asked the public to trust them. Judges appoint judges.
Judges decide whether judges face any consequences for misconduct. Judges
decide whether judges have committed an impeachable offence. Judges decide
whether judges will be named in a criminal offence. At all times, the claim has
been raised that the institution of the judiciary is too precious, too fragile
and too important to allow anyone but judges to safeguard it. What Misra’s
actions show is that judges don’t trust other judges to safeguard the
institution of the judiciary, and more importantly, the public cannot trust the
judges to safeguard the institution either... read more:
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