Looking for a new clarity

Looking for a new clarity

Article:

1. Suhrith Parthasarathy, advocate at the Madras High Court, discusses about the loopholes in the Supreme Court.

Important analysis:

2. The Supreme Court gave a remarkable judgment in the recent Karnataka election. But this should not veil the deeper problems that the apex court is affected with.
3. These problems are:
   • Firstly, rejection by the government of the collegium’s recommendation of K.M. Joseph currently Chief Justice of the Uttarakhand High Court, for elevation to the Supreme Court.
   • Secondly, the need for a systemic mechanism to deal with allegations of corruption in the higher judiciary.
   • Thirdly, the controversial position of Chief Justice of India as Master of Roster.
4. These issues are not unique but they are recurring problems left unaddressed for decades.
5. To reach the root causes of these problems, the author sites some of the core areas:
   • The Indian Constitution leaves many things unattended. For example, Article 124 states that judges of the Supreme Court shall be appointed by the President, after consultation with certain authorities, including the CJI. But it does not tell us how these consultations are to be made, or what criteria ought to be applied in deciding who becomes a judge.
   • The Constitution is also silent on the administrative role that the CJI performs. Over a part of time, the CJI has wielded enormous power in contrast to what might have been originally thought of as a simple managerial task.
   • Even though the Constitution has a broad vision, its foundation is very fragile. Protecting its text and its values requires an independent judiciary that is not only committed to constitutionalism but that is also democratically accountable.

6. The government many a times is reluctant about the collegiums’ re-recommendation. For example in recent Justice K.M Joseph’s elevation to SC. In this regard, it can be said that the collegium system is:

• opaque and inequitable,
• against constitutionally provided check or balance,
• it doesn’t help to improve the judiciary’s independence or provide a seamless system of elevating well-qualified persons to the bench.

7. According to the author, there is a need for:

• Defined role of the CJI,
• Amendment in the existing framework of rules and regulations on how benches are to be created, and on how work ought to be divided between the different panels,
• Protection of text and values of the Constitution,
• Guidelines to reshape the composition of a potential judicial appointments panel,
• Independent mechanism to deal with allegations of corruption in the judiciary,
• Proper investigation panel for claims made against judge of dishonesty, which ought to be granted a status separate from all three established wings of government and
• Independent judiciary that is committed to constitutionalism and democratic accountability.