By- Mahima Agrawal.
Recent times have witnessed a tiff between the three organs of the state, especially the judiciary is undergoing serious scrutiny and is going through bouts of altered public belief in their judgements. The gap between popular morality and constitutional morality is a bigger issue these days. The age-old traditions and conservative practices are increasingly being questioned, which is leading to numerous cases being filed before the judiciary that requires them to think beyond the decided and adjudicate the coming. Also, the continuous problem of overloaded arrears of pending cases has always been the major issue faced by the Indian Judiciary.
Almost 22 million cases are pending in our country with thousands being filed every day. This heavy burden cripples the working of the judiciary and not only makes it less efficient but also majorly restricts the constitutionally guaranteed rights of the citizen. The right to timely delivery of justice is denied to almost all the citizens in the present time, due to overloaded courts with less judges.
The critical tiff between the procedural and infrastructural structure of appointing the judges and the aggravated differences between the government and the judiciary are enough for demanding immediate reforms to bridge this gap were not piecemeal in nature. Difference of perception regarding key solutions is the root cause of current crisis. Harmonious functioning and sincere cooperation of the three organs of the state along with undeterred and honest commitment of stakeholders such as the Bar Council and legal professionals could alone resolve this cyclic syndrome of delays.
Justice v Justices
Recent questionable events in the past few years have altered the faith of the people in the apex court and its decisions like the allegations of sexual harassment against Chief Justice were resolved by his companion judge alone. Moreover, the basis or rational of such decision was not released in the public domain as the court relied on a precedent wherein it was previously held that the court need not present the record of such sensitive proceedings in the public domain. However, such a questionable nature of proceeding has increased suspicions against these proceedings that appear to be biased.
The absence of any information regarding the allegations and the circumstances do not help in the formation of any popular opinion in the matter. Further Justice AK Patnaik was allotted the duty to inquire this issue with a complete spin angle. He was inquiring into the issue of conspiracy against the judges since it was said that such charges are, not only the reason of delay in ongoing cases but also malign the image of the judge and the judiciary. Whereas the paucity of rational for inquiries was left completely unattended.
There is no doubt that this inquiry will allow the judiciary to severest of actions to protect the image of the Apex Court and its Judges.But does this also answer the questions raised against the fair and unbiased functioning of the court in this matter. Since, this decision appears to reflect that the people with important posts in the republic are accorded impunity.
The court continues to navigate unchartered waters while dealing this case since no conclusive precedent or law guided the process of these proceedings thus allowing the court and the judges in such cases to individually and collectively handle the proceedings.
The SC was the revolutionary institution that gave a ground breaking judgment in 1997 where it established the need of strict guidelines for ensuring the safety of woman in ‘workplace’. However, this recent bias has maligned the purpose and legacy of Vishaka vs State of Rajasthan case. A huge fallacy in the procedural aspect of the inquiry and the complaint was a gross violation and hence there is a continued stirred respect for the fair court of justice.
‘Strained’ Court of Justice
The judgment of courts heavily depends on the evidences and the statements of the accused however often the best evidences are withheld, cross examinations do not go through and crucial witnesses either turn hostile or are threatened and coerced to change their statements. These procedural limitations are one of the major reasons for the strained and burdened courts aside from the obvious paucity of judges at all levels of the judiciary.
India is in a dire need for more courtrooms and judges along with simpler and time saving method of dispute resolution. Moreover, we also need to find a mechanism to ensure that the judges are granted power to express dissatisfaction when they feel the prosecution is incompetent. Similarly, policeman who were proved to have been hampering the investigation or fabricating the evidences should face correctives that are possible within the limitations of the existing system rather than delaying or stalling the process for final judgment in the ongoing case. Additionally we should also be looking forward to formulate a strict witness protection program in the favour of justice since the witnesses are the most important evidences and we cannot afford to let the cases go down the drain only because we could not protect our society since we let go of the criminals only because of witnesses going hostile or abducted.
The problem of precedent
The doctrine of precedent or stare decisis is mentioned in Article 141 of the Constitution and says that the law declared by the SC shall be binding on all courts within the territory of India.
Relying on previous judgements of similar subject matter, for deciding upon disputes of the present is the doctrine of precedent, as followed by the Indian Judiciary.The courts have been dealing with matters since centuries and it is highly possible that owing to the changing times and differed opinion the newly appointed judges will find some decisions they disagree with. The conflict of matters of the past and the demands of the present often hinder the process of dispensing justice.
The battle between settling the matter and the right decision is of core importance while deciding upon a case. Different views about the interpretation of statutes is a common occurrence in any institution. However, this agreement emphasizes the importance of a commitment to precedent more important so that the law remains constant even as justices come and go. Therefore, a perennial question at the door of the judiciary is to determine how today’s justices should deal with yesterday’s decisions for a case that is based on matters of the present and governed by laws of the past.
Previous CJI with three most senior judges broke the judicial protocol of not interacting with media while also accusing the then CJI of misusing and overstepping his administrative powers in assigning cases without rational basis.
SC is facing a crisis due to the existing mismatch of powers between the institution and its head. Increased number of cases under Article136 which is commonly referred as ‘extraordinary appellate jurisdiction’ and under public interest litigation have increased the responsibilities and burden on the top court. The court ensures that justice is served for all those matters where there was a grave injustice perpetrated on the parties however the method of providing preferences to group matters and PILs over the aggrieved individuals, who are approaching the court through the sanction of HC under Articles 132, 133 and 134 since their matter involved ‘a substantial question of law’,is unfair to them.
CJI lists cases in a manner to fulfil the constitutionally specified role of the top court so as to provide remedy in matter of substantial questions of law. However, it is often observed that SC hears SLPs and group matters much faster as compared to other matters. This leaves very little time for hearing other pending cases which eventually results in huge arrears and delays in dispensing justice.
The only plausible solutions for this crisis are altering the procedure of allotting cases. Instead of vesting the sole authority with the CJI it should be more of an institutional mechanism. Since all judges are collectively responsible for dispensing justice to all the people approaching the apex court then there should be a possibility of shared responsibility for the purpose of “administration” of the judicial institution. Therefore, now is a great time to devise a method and demand a radical change in the administration of the SC itself rather than relying on minor issues like short comings or differed opinion of the CJI.
The controversy over the appointment of judges, NJAC going downhill, constant tiff between the legislature and judiciary fir maintaining autonomy and differential interpretation of the Constitution on daily basis are some of the additional crisis that threaten the credibility and legitimacy of Supreme Court of India as the highest judicial institution in India. Constantly claiming that the democracy is in danger yet not be willing to reform age old methods and provisions is a definite threat to the judiciary especially as a crucial organ of the state.
Due to the intricate structure of the Indian State all the three organs have certain overlapping features. It is often argued that this structure of the state allows the courts to exert certain power and influence albeit reasonable over the legislature. Additionally the charges of corruption against prominent judges are piling up thick and fast. Moreover failing to hold inquiries of the same in an unbiased manner reflect the popular opinion that the executive exerts certain control over the judiciary as seen in the case of Justice IM Quddusi.
History tells us that it is rarely possible to hold unbiased and fair inquiries aginst the sitting judges or officials since they are likely to exert their powers and control the inquiry. They could easily control the evidence against them and destroy or make them disappear. Due to these obvious reasons it is often demanded that they are suspended or removed temporarily however no such thing happened in the case of inquiry of CJI Mishra.
The doctrinal principle of upholding the rule of law while maintaining the independence of the judiciary from the coordinate branches of government is a huge concern in the present times. This huge crisis could only be resolved through large scale reforms at administrative, legal and structural levels of the most important organ of the state- The Judiciary.
In Re: Matter of Great Public Importance touching upon the Independence of Judiciary,Suo Moto WP (C) 1/2019
Vishaka vs State of Rajasthan ,AIR 1997 SC 3011 Swami Assemanand vs National Investigation Agency Crl. Appeal No.D-539-DB of 2014 https://www.thehindu.com/news/national/four-sc-judges-air-differences-with-cji-misra/article22432428.ece Each bench of the SC typically sits from Monday to Fridays from 10.30 am till 1, and then 2 till 4. Upendra Baxi, The Indian Supreme Court and Politics (Eastern Book Company, 1979), 126
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