[op-ed snap] A question of probity

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Mains Paper 2: Governance | Important aspects of governance, transparency and accountability, e-governance- applications, models, successes, limitations, and potential

From UPSC perspective, the following things are important:

Prelims level: Not Much

Mains level: Credibility of the Indian Judiciary


News

Context

  1. The article talks about a recent important case of the SC, which is questioning the credibility of the SC itself.

What is the issue?

  1. A five-judge Constitution Bench of the SC led by the Chief Justice of India declared that the Chief Justice is the has the sole prerogative to determine which Bench of judges gets to hear which cases
  2. The bench was hearing a case concerning corruption arising out of certain judicial proceedings

What was the case?

  1. The genesis of this episode lies in the filing of petitions by Prasad Education Trust before the Supreme Court and Allahabad High Court
  2. The trust operated a medical college whose permission to run certain courses had been declined
  3. A simultaneous investigation by the Central Bureau of Investigation (CBI) indicated a possible criminal conspiracy to ensure a favourable judicial order in this matter
  4. According to its FIR, two persons managing the affairs of the trust, approached a retired judge of Allahabad and Odisha High Courts, Justice I.M. Quddusi, through Sudhir Giri of the Venkateshwara Medical College (part of Venkateshwara University, in whose case another judgment had been passed by Justice Dipak Misra in the Supreme Court)
  5. Quddusi recommended the filing of a petition before the Allahabad High Court, in which partial relief was granted
  6. Subsequently, when the matter again reached the Supreme Court, the FIR reveals that Quddusi and his associates assured the trust of getting the matter “settled” in the Supreme Court through “their contacts
  7. Quddusi, Agrawala and four associates have now been arrested for offences under the Prevention of Corruption Act and the Indian Penal Code

What is the need of constituting the SIT(Special Investigation Team)?

  1. Since the FIR indicated an attempt to fix a judicial proceeding, the Campaign for Judicial Accountability and Reforms filed a writ petition in the SC requesting that a SIT under a retired CJI be set up
  2. This request was made since it was apprehended that leaving the investigation to the CBI might mean allowing the government to influence judges who would be brought under investigation

Two Important questions

  1. First, 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?
  2. Second, could a constitution bench be constituted bypassing the chief justice in violation of the current procedure through which such benches are constituted?

Issue of corruption in the court

  1. There are issues of corruption in the courts
  2. The judiciary has failed to find a mechanism to deal with allegations of corruption within its ranks
  3. Every justice in the court needs to be above suspicion
  4. But a lot of care needs to be exercised so that the anti-corruption measures taken do not undermine the independence of the judiciary

Concerns related to the CBI investigation

  1. We should also consider the possibility that the threat of being investigated by the CBI, or speculative naming (or suggestion in a CBI report)
  2. It can itself also be an instrument of seeking recusals or undermining the independence of judges, as is sometimes done with other government officials
  3. This subtle institutional challenge to the judiciary is not outside of the realm of possibility
  4. 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

Use of article 142 in the present case

  1. Many learned counsel have defended Justice Chelameswar’s move by invoking Article 142 that gives judges the power to do whatever it takes to secure justice
  2. But the use of Article 142 has also become a sign of immense judicial indiscipline, where judges can easily ride roughshod over other procedural proprieties

The way forward

  1. There are lots of legal nuances to the case at hand
  2. But the court’s loss of external credibility combined with internal anarchy does not bode well for Indian democracy
  3. Instead of becoming a constitutional lodestar in our turbulent times, the court has itself become a reflection of the worst rot afflicting Indian institutions
Judiciary Institutional Issues
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