Yogesh Pratap Singh
Rising pendency of cases, with the backlog touching 3.3 crore cases, and the procedure of judicial appointments generating new tensions between the judiciary and the executive were two persistent issues before the Supreme Court over the last two decades. However, it appears these two have become subsidiary to the current concerns surrounding the institutional crisis of the Supreme Court.
Early 2018 brought to the light another aspect that of the accumulation of power in the hands of Chief Justice of India (CJI) to select colleagues on the bench over which he presides or to allocate cases to his colleagues. When four senior-most judges of the Supreme Court, including the incumbent CJI, publicly alleged that the CJI was assigning cases arbitrarily and according to his own preferences, it drew worldwide attention.
This protest though ended as brusquely as it had started, but soon the Supreme Court came again in the spotlight when the CJI introduced a new roster system. This event defied the sacredness of the Supreme Court in an unprecedented manner. Seven opposition parties led by the Congress moved a notice for the impeachment of the then CJI, accusing him of “misbehaviour” and “misuse” of his administrative powers.
Chairman of the Rajya Sabha M Venkaiah Naidu, though, vetoed the notice; but it brought unparalleled disgrace to the institution in general, and office of CJI in particular. The ghosts of the past are haunting the office of the CJI again. Paradoxes in the working of the institution are raising questions.
The irony of the argument put forward by the CJI that an alleged sexual harassment against him has all the potential of deteriorating independence of judiciary seems too naïve to be acceptable
The first paradox is that the very judge who had protested against the preceding CJI, arguing that democracy was ‘in danger’ is now facing charges of sexual harassment from a court employee. Paradoxically, it is the Supreme Court, which had laid down guidelines and norms for the prevention of sexual harassment at workplaces for the first time in the country in the Vishaka and Others Vs State of Rajasthan and Others [JT 1997 (7) SC 384] case, that has itself apparently failed to apply those guidelines when it came to its own staff. The guidelines, besides imposing obligations on the employer to provide safe working environment, mandated all — whether operating in the public or the private sector, to set up Complaints Committees within the organizations to look into such offences. “Such a mechanism should ensure time-bound treatment of complaints,” the Supreme Court guidelines state.
The complaints committee should be headed by a woman and not less than half its members should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such complaints committees should involve a third party, either NGO or other body familiar with the issue of sexual harassment.
Unfortunately, ignoring all these principles the Supreme Court had itself laid down, it has once again exhibited double standards. The Supreme Court, which always tried to keep a constant check on every other organ, institution or body under the Sun, has once again apparently failed to apply a similar method to discipline its own behaviour.
The second paradox is that the Chief Justice, who strongly raised his voice against the former CJI’s master of roster prerogative and held a press conference alleging that he was assigning cases arbitrarily and according to his own predilections, has constituted a bench comprising himself, Justice Arun Mishra and Justice Sanjiv Khanna (all male justices despite the fact that the Supreme Court has three women justices at the moment) as in a matter of great public importance touching upon the independence of the judiciary. The Chief Justice, unpredictably and going against his normal behaviour, found urgency and posted the matter on the judicial side constituting a bench of three judges and holding a hearing on a holiday. This was unusual and against CJI’s own practice about mentioning of cases in the Supreme Court.
The third paradox is that CJI judged the case, while he was himself being accused in this case. Nemo judex in sua causa, that is, no one can be judge in his own cause, is a cardinal principle of natural justice and is applicable to all. But the name of the Chief Justice was conveniently omitted from the order to be on safer side. The allegations may be true, false or politically motivated; but the manner in which chief justice dealt with this case was undeniably vicious. Denial of hearing to the complainant, and attempts to cancel her bail, congregates the very essence of justice delivery process which is fair and transparent. Another principle of natural justice ‘audi alterum partem’, listen to the other side, stands desecrated.
The fourth paradox is that the chief justice, who himself changed history by organising a press conference last January against the then CJI has now requested the media to show restraint and to protect the independence of the judiciary. The irony of the argument put forward by the CJI that an alleged sexual harassment against him has all the potential of deteriorating independence of judiciary seems too naïve to be acceptable.
The spirit of independence has been precisely defined by Lord Woolf: “The independence of the Judiciary is not the property of the Judiciary, but a commodity to be held by the Judiciary in trust for the public.” On the contrary, greater transparency and accountability in working of the Apex Court will foster more respect for the institution, provided there is nothing to hide or sweep under the rug.
For way too long, the judicial body has been wrapped in the cloak of discreetness and inexplicability. The Supreme Court of India has for long been a people’s court and has been pronouncing judgments for betterment of human conditions and upholding the rule of law. At this juncture it will be surprising to see if it denies due process on the grounds of judicial independence. It will be a battle fought for all the wrong reasons.
The writer is registrar, National Law University, Odisha. Views are personal.
