Administering the Supreme Court Through the Media

As four senior judges of the Supreme Court coming out through a press conference against the Supreme Court of India, the entire legal fraternity as well as the people have been thrown into a frenzy.

Justices Ranjan Gogoi, M.B. Lokur and Kurian Joseph, Justice J Chelameswar, today appeared before the national media today and allegedly broke their silence over the fact that the incumbent Chief Justice of India is one who is not discharging his duties with the due diligence required.

The further call has been that the democracy is being led into danger.

The responses coming in from over the various quarters are falling in every spectrum of morality, while the justices urged the Prime Minister to intervene in the matter urgently.

If there existed some apprehensions of this, or if there were such appalling and urgent circumstances, the justices may have done it confidentially, as has been done on many innumerable occasions.

The direct impact that  the media exposure and the hovering possibilities of a media trial have led to demean the highest Court of the land. The tussle involved, has dented the overall trust that has been reposed in the judiciary by the people.

The direct allegation by the Senior Judges, has been that the CJI, is promoting s preferential allotment of cases, which is detrimental to natural justice.

The allegation, and the call, has such consequences, and the impact of the same may be felt in the days to come, with the Judiciary condemning or boycotting the proceedings emanating from the misinformation propaganda against the CJI.

The office of the CJI is one of the most influential offices in the country, and there has been one incident in the Prasad Medical College case, where Senior Advocate, Prashant Bhushan waived an FIR registered against the CJI in Orissa.

This incident took the CJI by alarm, and then he declared himself to be the last authority after the Registrar General of the Supreme Court, in the administrative side.

The allegations today, may have certain truth lying beneath these as the judges who pursued the trajectory, are known to be honest and responsible judges. The judges might have also tried to follow an in-house resolution system that possibly failed, while the judges’ who have take this extra measure will have to answer collectively not just to the institution, but also the nation.

It is also to be noted that yesterday the Supreme Collegium cleared the names of Senior Advocate Indu Malhotra and Judges KM Joseph for elevation to the Supreme Court, while it cleared certain names for appointment to the High Court as well.

The Judges have also take note of the fact that they are not giving a political statement , but they are cautioning the nation. The caution also comes at a price of the reputation of the judiciary.

The matter is now in the public, and while the media trials are not allowed, the judges have submitted yet the entire judiciary to the trial by the media. Though the urgency and the veracity of the disclosure are not yet confirmed, but the damage has been done. And a fact finding will have to be commenced at  the earliest to bring the matter to truth.

 

Judicial Activism or Judicial Appropriation: CJI vs FM

 

In an event yesterday at the Supreme Court compound to commemorate the National Law Day, the CJI, Dipak Misra and Finance Minster, Arun Jaitley aided by Minister of State for Finance and Commerce PP Chaudhary exchanged words regarding judicial activism and transgressions by the judiciary.

The Government has recently been fighting good cases spanning key aspects of a citizen’s life, like privacy, freedom to marry, and a few more. The trend of Judiciary coming in conflict with the mandate of the Parliament isn’t new. It has continued for over generations, and has seen many deadlocks and Constitutional trickery, that sought to bypass the Supreme Court’s diktat.

The jibes that the two ministers took in are in a broad context, whereby thy seemed to be cautioning the Court of holding its righteous activism. The activism taken up by the Courts is not always abrupt and active, most of the times, the Courts take a passive route to set the legislative and executive machinery into action. It is not a rare possibility that in a country like India, administrative and legislative efficacy is a 100%, there are loopholes, which are plugged in, and certainly there are times when executive or the legislature transgress upon the fundamental rights of the citizens, at those moments the Courts being the guardians of the Constitution play an active role in undoing the doing.

There is obviously a boundary given the fact that there exists a separation of powers between the organs of the State, thereby creating ample of space for al of them to co-exist for the purpose of aiding each other in administering the country as a whole. The argument that the judiciary tries to ‘usurp’ legislative powers, is not a valid one, because the judiciary interprets the laws, and makes it fit  with the Constitutional mandate. Time and again the Supreme Court and the High Courts have held that they don’t wish to tread into the domain of policy making, yet when they give outlines for a change, they reflect the demands of the society, as law is as dynamic as a living organism.

The befitting reply given by the CJI is appreciated, yet the remarks by a man of the stature of Mr Arun Jaitley is totally uncalled for and when he says, how would the judges feel if someone presides over them to do their job, is obviously one reason why the MOP for appointment of judges to the High Courts and the Supreme Court has been stuck.

The Government, this or any other will always want to the Judiciary on its back to gain absolute control over the affairs of the State, yet the judiciary remains a closed-door system, which does not allow interference from either the executive or the legislative.

The activism by the more learned Judges, and the lawyers of the High Court and Supreme Court is far more qualitative and reliable than the mandate of the Parliamentarians who do not seem to have the perspective of a common man, as they often tend to consume themselves with the ends justifying the means. This is clearly reflected by the goalpost shifting that we saw during the Demonetisation exercise and the delay caused when it was the time for remonetisation.

The judiciary has been guarding the democracy time and again, while absolutely not interfering with the spheres of the other two organs of the state, thus a statement alleging the Judges of wrongdoing in the name of activism, is condemned.

Speedy Justice is A Fundamental Right Order Recalled by SC!

The proverb, ‘justice delayed is justice denied’ is the essence of natural justice. The cornerstones of the third and the most important organ of the State, the Judiciary is the role it performs in enhancing the administrative efficacy of the State altogether. While the people during their intercourse with the law in motion come across certain anomalies what lies ahead when the Courts begin to delay justice to offenders on the pretext of lack of benches and judges?

The issues that hamper the effective delivery of justice start with the lack of Judges in the lower judiciary. The lower Judiciary also has a peculiar aspect to its powers which makes it the busiest Courts in the nation with a huge amount of cases pending trials, some at over initial stages. The actively contested cases then reach the High Courts. The High Courts on the other hand often act as a strainer which strains out cases lacking the substantial matters of legal adjudication and then the story becomes gloomy.

The overall scenario today, with not just the lower judiciary but as well as the Higher Judiciary stands in a ditch. The last time we had a CJ of India pitching for intervention from the Narendra Modi government was Justice TS Thakur. Justice Thakur even broke down at a public gathering citing his inability to be at the top yet being unable to trigger changes in the judiciary. He observed that against the sanctioned strength of 1079 judges in the High Courts, a full 478 posts remained vacant. This amounted to 44.3% of the posts lying vacant. Since 2015 the SC and the Central government have been engaged in a tug of war which was preceded by the NJAC Bill being sacked by the SC. The Court has also asked the central government to provide a draft memorandum of procedure, which has unfortunately not become a reality yet.

A bench opf Justices UU Lalit ad AK Goel had on October 27 given a veridct whereby specifying that speedy justice a fundamental right. This involved the wider application of the reforms being deployed in the Judiciary. But it seems that CJI Justice Dipak Misra’s ideas do not align themselves with the spirit of providing speedy justice,while he promotes international arbitration.

The case was of one convict who has spent over 11 years in prison and has not been able to get any redress from the High court of Jharkhand. The HC on its turn replied by saying that the convict is not the only one facing tough times but there are others who have faced a good amount of time in jails! The HC also added that due to lack of judges, there is not enough time to ensure speedy disposal of cases and the HC finds it tough to push through one particular case.

This is not just the case with one Court in our country. The author being associated with the Courts, has been a witness to many cases from the Uttar Pradesh, Uttarakhand, Haryana and Maharashtra coming the Supreme Court seeking speedy disposal.

Even the SC is faced with a similar problem of ever increasing cases and a handful of judges! The solutions to this problem are multi-fold and not just one sided.

The e-Courts project has not been implemented fully yet, and the Indian legal databases have not been able to innovate on new technologies to make justice delivery technically assisted so as to reduce the burden of the judges.

There are certain cases where judges work overtime and take up pending disputes and a very notable step happened this summer when under the leadership of Justice Khehar, the SC judges took turns and addressed cases that were pending for long.

The recent judgement of the recall by the SC of the fundamental right to speedy justice is not the correct step, rather the approach has to be wide and holistic i delivering service to the nation.