A three-member panel set up by the Rajya Sabha to
investigate sexual harassment charges against Justice S.K. Gangele, a judge of
the Madhya Pradesh High Court, has given him a clean chit few days back, which
was labelled by an additional district and sessional judge. Justice C. S.
Karnan served six months in prison for contempt of the Supreme court. There are
few more events scattered events which also highlights the lack of
accountability and growing arrogance, callousness amounting because of it.
Now, before I move on, I must clarify that I have no
intention of contempt of court, as I, as well as, all citizens of India, that
is Bharat, holds our judiciary with very high respect. Beside the Contempt of
Court (amendment) Act, 2006 provide reasonable scope of criticism.
(a) no court shall impose a sentence under this Act for a
contempt of court unless it is satisfied that the contempt is of such a nature
that it substantially interferes, or tends substantially to interfere with the
due course of justice;
(b) the court may permit, in any proceeding for contempt of
court, justification by truth as a valid defence if it is satisfied that it is
in public interest and the request for invoking the said defence is bona fide.
Freedom of expression conferred by article 19 (1) (a) does
not extend to contempt of court.
Indian Judiciary organ is sacrosanct, above the check and
balance mechanism established by the constitution. The judicial organ appoints
itself through the Collegium, though Article 124 (2) clearly says that the
President would consult judges of High Court and Supreme Court as he deems
necessary during appointment of the Supreme Court judge and would consult the
Governor of the state for appointment of a High Court judge. The word is
“consult” – in plain English. But, the Supreme Court in the Second Judges case
1993 and in 1998 clarified that the advice of the Supreme Court judges’
collegium on the president is binding. And, the governor was never consulted
for appointment of any high court judge. Means, the procedure provided article
124 (2) has been amended by the judicial organ which is not even in their
jurisdiction.
Now, in a democracy, can any organ be sacrosanct? What about
the Check and Balance?
The legislator and executives together tried to brought the
judiciary under the check and balance blanket through the NJAC (National Judicial
Appointment System) which was foiled by the Supreme Court. Now, the rationale
provide for the act was very interesting.
The NJAC comprised of -
- · The Honourable Chief Justice of India
- · Two senior judges of the Supreme Court
- · The Union Law Minister
- · Two eminent personalities nominated by the honourable Prime Minister, the Chief Justice of India and the Leader of Opposition in the Lok Sabha,
Means all the organs of the democracy has been represented –
the judiciary, the legislatures and the executive. But, the Supreme Court said
that the ‘independent judiciary’ is the basic structure of the constitution.
The independence of the judiciary is provided by
- · Security of tenure provided by a complex and almost impossible to achieve impeachment process.
- · Assurance of salary and benefits which are paid from the Charged expenses of the Consolidated Fund of India and not subjected to voting in the Parliament. Hence, salary and allowance cannot be reduced to the disadvantage the judges.
But, the unfathomable reluctance of the judiciary to come
under blanket of ‘check and balance’ is actually is seen as reluctance to
embrace accountability by intellectuals.
Now, the judicial system is also supposed to uphold the ‘equal
opportunity’ of justice. The seat of the Supreme Court is Delhi, only Delhi, though
article 130 provides provision to make a seat in any place(s) as the Chief
Justice of India may see fit, with the prior approval of the President. But,
the Supreme Court shied away from establishing regional brunch as to avoid ‘disintegration’
of the Supreme Court. So, people of the South India, North-East India and people
from different part of India who cannot afford a long stay in the Highest Court
of the land, which will be in only the Capital city. There is why we haven’t
seen a PIL filed by a poor south Indian or North-East Indian in the political
history on the breach of fundamental right. Means, either their fundamental
rights are never breached or they didn’t have the resources to opt for justice.
Please, take your pick.
End of Episode 1 …
Critically examine the Supreme Court’s judgement on
‘National Judicial Appointments Commission Act, 2014’ with reference to
appointment of judges of higher judiciary in India. (UPSC 2017)
Background Not part of Answer:
National Judicial Appointments Commission or the NJAC was
established as outcome of the 99th constitutional amendment to
establish a body to handle judiciary appointment in a transparent manner. The body
would consist -
- · The Honourable Chief Justice of India
- · Two senior judges of the Supreme Court
- · The Union Law Minister
- · Two eminent personalities nominated by the honourable Prime Minister, the Chief Justice of India and the Leader of Opposition in the Lok Sabha,
Critical Analysis:
The Supreme Court termed the NJAC unconstitutional as:
i) involvement of politicians undermines the independence of
judiciary
ii) the veto provided to members (even executive and
prominent person who can be an another executive or legislative) which can
influence the appointment process.
The main rationale put forward was that the ‘independent
judiciary’ is the basic structure of the constitution. Now, the basic structure
of the constitution is itself an invention of the judicial system which has its
origin in the historic Keshavananda Bharati and the State of Kerala case (1973).
a) But, constitution provide for the ‘check and balance’
mechanism to prevent concentration of power and ensure accountability. It is
basic structure of all federal constitutions.
b) Article 124(2) provide only consultative role to
judiciary during appointment. But, the NJAC provide higher authority
constitutionally.
c) But, the prominent persons mentioned in the NJAC may get
appointed out of nexus between the executive and legislative, which gives the
executives two vetoes requires to foil any just appointment (talking form
judiciary’s point of view). But, it also shows rift i.e. lack of trust between
judicial and other organs of democracy.
The judgement shows the judicial intension to keep absolute
control over legislature while staying out of ambit of any accountability to
any organ. The appointment of A. N. Ray supports the Supreme Court’s rationale
of keeping executives out of judicial appointment process.
