Mains Paper 2 : Executive & Judiciary |
From UPSC perspective, the following things are important :
Prelims level : Nothing Much
Mains level : Judicial Independence rhetoric should not impede Justice
Since the infamous Saturday morning emergency hearing in the Supreme Court on an “issue of great public importance”, several legal and political commentators have raised noteworthy concerns over the apparent absence of due process, and the possibility of abuse of the office of the Chief Justice of India.
- Instead, the focus was mainly on how the incident represents an ‘attack’ on the independence of the judiciary. This view was then echoed by the Chairman of the Bar Council of India in a statement, and the Finance Minister on his website.
- The Finance Minister, in fact, claimed that “a mass intimidation of judges is on”.
- This approach suffers from two fundamental flaws that command a critical assessmen.
Is it threatening Judicial Independence?
1. Is there a connection?
- For such an allegation to amount to a threat to judicial independence, there would have to be some connection between the individual and the institution – apart from the fact that the individual happens to be a member of the institution.
- The allegations made by the complainant are rather complex, and are seemingly reflected in a series of documents bearing the imprimatur of the Supreme Court administration.
- Without any detailed inquiry or investigation, it is impossible to dismiss the allegations as necessarily false, and to do so constitutes a violation of due process that the complainant is entitled to.
2.Jeopardising Checks and balances
- For individuals representing the government to assert that the allegations against the CJI are false – without demanding an impartial inquiry through proper channels – jeopardizes the system of checks and balances.
Questions that should be raised
- How can we find out if the allegations are false?
- What if the allegations are not false?
- Does the victim’s right to access to justice deserve to be ignored owing to possibilities of other false allegations?
- Can a mechanism can be put in place for an inquiry to be carried out by an independent committee efficiently and without delay?
- What if an inquiry committee must give preliminary findings before judicial work is taken away from a judge?
- What are the possible measures that can be instituted to deter politically motivated allegations of sexual harassment?
Perceived Fragility of ‘Judicial Independence
- This view of the fragility of judicial independence is now rather familiar.
- RTI case – Earlier this month, in the case concerning whether the judiciary’s decision on judicial appointments should be subject to the Right to Information Act, the government argued that making the judiciary amenable to the RTI Act would destroy “judicial independence”, without explaining how lack of transparency is a necessary facet of the independence of the judiciary.
- Contempt of court Case –Similarly, in contempt of court proceedings, it is often asserted that criticism of judgments can compromise confidence in the judicial system, and therefore interfere with the “due administration of justice.”
Problems With Judicial Independence Recourse
- Non- elected – It is important to remember that the judiciary consists of non-elected individuals.
- Trust of people –Its power as an institution – in terms of issues of governance – has been amassed over time, and is predicated on the trust of the people.
- Transparency –Judicial decisions on the importance and need for openness and transparency ought to be applied with equal – if not greater force – to the judiciary.
- It is not enough to assert that judicial independence will be at risk whenever any matter related to the judiciary is sought to be debated. Instead, mechanisms must be evolved to ensure due process to both parties, where protecting judicial independence is one of the factors involved.
- Thus, any committee that undertakes an inquiry into the allegations must not let the question of judicial independence eclipse the inquiry.