Today’s Talk on Editorials: Questions on judiciary role
Significance: Supreme Court underlined recently that Chief Justice of India decides who hears a case even if facing allegation.The court has suggested that any complaint against a judge and investigation by the CBI should not be given publicity, ignoring the fact that public functionaries act under public scrutiny.
The issue arise after a petition was filed in Supreme Court with regard to medical college bribe case and it demanded that CJI should stay away from taking any judicial or administrative decision related to the matter.This is because he had in the past dealt with the case of the same Education Trust .
Similar instances of conflicts of interest or non transparency in judiciary: Satark Nagrik Sangathan has published a report recently about judiciary’s stand in RTI. It notes that before the RTI law was passed, the judiciary played a seminal role in recognizing and furthering peoples’ right to information in India.In fact, Supreme Court adjudged the right to information to be a fundamental right. However, with the advent of RTI, judiciary itself blocks sensitive information.It has even dismissed a RTI application wanting information on appointment of judges.
Also, there have been opinions from sitting judges of Supreme court that few members of the judiciary have dishonored their oath of office. Judiciary is not untouched by corruption.
There have been some error prone judgement which seem archaic in nature. For example, in the 1975 ADM Jabalpur Case,the Supreme Court declared that under emergency provisions no one could seek the assistance of any court in India to try and save his liberty, life or limb threatened to be taken away by the State.
Recent appraisal: In 1969, the Supreme Court Bar Association declared November 26 as Law Day.It is to emphasise the role and importance of law in the life of our Republic, to review the state of law and administration of justice, to suggest ways and means of improving our laws and our legal and judicial system,to strengthen the principle of the independence of the judiciary.
The court’s collective actions recently had undermined every notion of good ethical conduct and struck a potentially non recoverable blow at the principles highlighted above while declaring November 26 as Law Day.The independence of judiciary is a necessary tool. The freedom enjoyed by judiciary should not be misused.In the luxury of protection, the judges deliver decisions contrary to the idea of the advancement of justice.
The proposition of judicial accountability was mooted in 1966 by Justice Hidayatullah in his minority decision in the case of Naresh Shridhar Mirajkar And Ors v State of Maharashtra. However till now, judiciary has largely acted against this idea. For example, striking down NJAC and the 99th Constitutional Amendment Act proves a valid example for it.
Lack of judicial courage and integrity often stems from the flawed process of judicial appointment. The opaqueness of the whole process fails to insulate the judges from extraneous influence and pressure. Thus, it fails to uphold rule of law against the improper and arbitrary exercise of power.
Way forward: To reform the judiciary there should be multi-pronged strategy preserving independence of the institution. Possible solutions include creating an All-India Judicial Service along the lines of the All India Services to improve the quality of district and subordinate courts. Legislation steps like The Judicial Standards and Accountability Bill have to be passed with consultations of judges and legislators. The Memorandum of Procedure has to be fast tracked and implemented for judicial appointments to ensure transparency across the courts as well.