Prashant Bhushan, Anjali Bhardwaj On Deep Fault lines In The Indian Judiciary
The protection of
peoples’ rights is closely linked to the functioning of a fair, independent and
effective justice system. In the constitutional scheme, the Indian judiciary
occupies a pivotal position as the guardian of the fundamental rights and
liberties of individuals. It has been widely credited with pronouncing
progressive judgments upholding the rights of the marginalized and the values
enshrined in the Constitution. These virtues have not been absolute, however.
There have been serious concerns, from time to time, regarding the subversion
of the autonomy of the judiciary, including the period when Emergency was
declared in the 1970s.
Recent developments
have exposed deep fault lines in the Indian judiciary. In January 2018, a press
conference was addressed by four senior judges of the Supreme Court. The trigger
for the unprecedented step was apparently the arbitrary allocation of benches
by the chief justices, with cases being ‘selectively’ assigned to particular
judges to obtain particular outcomes. The allegations raised serious doubts
about the independence of the judiciary given that an estimated 45 to 70
percent of the litigation involves the government. These doubts have been
further exacerbated by the handling of several politically sensitive cases by
the apex court involving allegations of corruption against some of the highest
functionaries in the government, such as in the Rafale deal and the
Sahara–Birla diaries.
In April 2019,
allegations of sexual harassment surfaced against the chief justice of India
(CJI). The manner in which the case was dealt with brought to the fore
questions about the lack of any credible mechanism to examine complaints
regarding misconduct by judges of the higher judiciary, especially the CJI.
Immediately after the complaint was made, the CJI presided over a hearing in
which he himself was a party, flouting the fundamental principle of justice
that no one should be a judge in his/her own cause. The complainant was
publicly maligned, and in violation of the principles of natural justice, was
not even given an opportunity to be heard. After massive public outrage, an
inquiry was set up to look into the matter, though the way in which it was
conducted foreclosed the opportunity for justice to prevail. The report on the
basis of which the complaint was finally dismissed was never provided to the
complainant!....
