Supreme court, diminished

Supreme court, diminished

Context:

The judiciary has created a crisis of institutional credibility for itself.

Crisis situation for Judiciary:

• The Supreme Court of India is facing worst crisis of credibility since the Emergency.
• The quality of the court’s reasoning, the inconstancy of its judgment, the abdication of its constitutional role in some cases, and is overreach in others, are already denting its authority.
• The present crisis was occasioned by an order passed by Justice J Chelameswar to constitute a five-judge bench in a petition filed by CJAR that demanded that a SIT be constituted to look into an alleged corruption scandal pertaining to a case involving a medical college.
• There are issues of corruption in the courts.
• The judiciary has failed to find a mechanism to deal with allegations of corruption within its ranks.
• Institutional challenge to the judiciary is also one of the causes of crisis of identity.
• Many learned counsel have defended Justice Chelameswar’s move by invoking Article 142 that gives judges the power to do whatever it takes to secure justice. But the use of Article 142 has also become a sign of immense judicial indiscipline, where judges can easily ride roughshod over other procedural properties.
• Communication between judges seems to have broken down to the point where the senior leadership of the court is incapable of getting together and coming up with common sense procedural solutions to cases .
• The distrust amongst judges is extraordinarily high.
• The court’s loss of external credibility combined with internal anarchy does not bode well for Indian democracy. Instead of becoming a constitutional lodestar in our turbulent times, the court has itself become a reflection of the worst rot afflicting Indian institutions.

Chief Justice of India

• Chief Justice is the senior most judge in the country, i.e, he is at the apex in the court of law. He sits in the supreme court, the court of Apex.
• The most powerful authority someone as a chief justice can have is, to become an acting President or vice President when the post is vacant until the next President is selected.
• CJI is constitutional post. He/she is who gives oath to president/vice President of india.
• He/she assigns judicial and administrative work to judges and registers.
• Represent India in International Judicial/ legal forum.

The appointment of CJI

• The Chief Justice is appointed by the President in consultation with such other judges of the Supreme Court and High Court as he may deem necessary.
• Convention dictates the appointment of the senior most judges of the Supreme Court as Chief Justice.
• The other judges are appointed by the President after consultation with the Chief justice and such other judges of the Supreme Court and the high court’s as deemed necessary.
• The Consultation with the Chief justice is considered necessary for the appointment of any judge other than the Chief justice.

How powerful is CJI?

• Moral power: Chief Justice is the senior most judge in the country, i.e, he is at the apex in the court of law. He sits in the supreme court, the court of Apex.
• Political power: The most powerful authority someone as a chief justice can have is, to become an acting President or vice President when the post is vacant until the next President is selected.
• Legal power: As head of the Supreme Court, the chief justice is responsible for the allocation of cases and appointment of constitutional benches which deal with important matters of law. Chief Justice allocates all work to the other judges who are bound to refer the matter back to him or her

Indian judiciary and its problems:

The Indian judiciary has been placed in between the Westminster model (where judiciary is rather toothless) and the American model (where judiciary is supreme). The Judiciary has, in India’s independent history, more often than not tipped the scales back in favor of libertarian democracy whenever the balance has been disturbed by executive action.

However, the Indian judiciary suffers from ample problems:

1. Pendency: Judicial proceedings are complex and entangled in technical jargon. Cases take years, sometimes decades, to be decided.
2. The ‘climb up’ of cases: Cases are seldom decided at the subordinate level and often get heard at various levels of judicial hierarchy.
3. Shortage of judges: There is an acute shortage of judges due to reasons like delay in appointment etc, and the lower judiciary seldom attracts good talent. The recruitment process attracts allegations of corruption.
4. Proliferation through SLPs: A lot of cases are entertained under article 136, which would otherwise not fall in the criminal/appellate/advisory jurisdictions.
5. Technical nature of cases: Often the judges have to hear cases related to technical matters such as taxation, environmental policy etc
6. Weak Subordinate Courts:-We can think of Supreme Court and Many High courts as Strong institutions but at day to day level most of the cases are handled by the subordinate level which do not have well specialized manpower and hence are weak.
7. A proper framework and method of specialization should be introduced in appointment of judges at the subordinate level.

Conclusion:

There is need to take proper care so that the anti-corruption measures taken do not undermine the independence of the judiciary. Judiciary need to think of how it will deal with instances where the Chief Justice of India or other justices becomes hostage to possible CBI innuendo.