Law and Society: Is Indian Judiciary in Crisis?

 Rift Within The Judiciary: Why Top Judges Took On Chief Justice

Judges should be stern stuff and tough fire, unbending before power, economic or political, and they must uphold the core principle of the rule of law disseminating law to be above all. This position on judges was taken in the case of S.P Gupta v. Union of India[1], whereby independence of the judiciary was held to be an important factor for maintenance of rule of law and establishing a real participatory democracy in India. Today, the independent aspect of judiciary only has become the factor for its enclosed and captive mode of sabotaging judiciary through corruption and core dysfunctions, compromising the transparency and fairness of the judiciary.

The recent controversy relating to senior most judges of Supreme Court being involved in the case of bribe and corruption can be taken for instance. A retired judge of the Orissa High Court, IM Quddusi, was accused of conspiring to bribe Supreme Court justices, Mr. Dipak Mishra in a case over which he himself presided. The original case pertains to Prasad Education Trust; an institution based in Lucknow pertained to run a medical college but was denied permission by the Medical Council of India. The Trust then moved to the court and obtained an order in its favour. The case arose as the decision was held to be a yield of collusion between the Prasad Education Trust and the judges who gave the decision in this case. In September 2017 the CBI arrested the former judge, Mr. IM Quddusi along with five other people on the ground that Justice Quddasi had offered bribe to the judges to ensure that the Supreme Court would rule in favour of a medical college in Lucknow that was seeking to reverse its blacklisting by the government whereby the recognition had been denied by the Medical Council of India.[2]  A bench presided by the second senior-most judge of Supreme Court, Justice J. Chelameswar gave an order in the graft allegations against a retired Orissa High Court judge in a medical college scam referring the case to a constitution bench the plea for a Special Investigation Team probe. The main issue arose when the Chief Justice Mr. Dipak Mishra froze this order issued by Justice J.Chelameswar and withdrew the matter from Justice Chelameswar’s bench and assigned it to a three-judge bench headed by Justice R.K. Agrawal.

The decision also brought forth the fact that the Chief justice alone can call for a constitution bench citing it to be the principle of law and the decorum of the court and marking the position of the Chief Justice to be the “master of the roster”. Later, the registry of Supreme court informed the members of the bar that henceforth the mentioning of matters, which have not already been assigned/listed before any other bench for an early hearing or listing, would be allowed only before the bench headed by the Chief Justice of India.[3]  This stand of Chief Justice had been held to be against the principle of natural justice which says that no one can be judge in its own cause, as he presided the earlier hearing of the same case, and by intervening in the decision and ensuring that judges of his choice only hear this case triggered a volatile debate of his involvement in the corruption.[4]

Judicial corruption and the cry for accountability has been growing from within the bar in the recent past. Judiciary was made an independent wing so that executive bodies could not use for their purpose and vicious acts. But it seems that there has been a grave misuse of power has grown within the circle of the judiciary. In corrupt judiciaries, citizens are not afforded their democratic right to equal access to the courts, nor do the courts treat them equally.

The judiciary is, in fact, the shield of the people’s right; it protects these rights from encroachments by the Government and other official bodies. In a democratic country like India, the liberty of the people is of vital importance but without an independent judiciary, the liberty will be compromised. If the judges are not men of integrity and sound moral character, public confidence in the judiciary cannot be assured. The position is very traumatizing because judiciary holds the position of utmost trust and it is the last resort for the people. Therefore, the question remains that whether the judicial accountability is trusted upon any further? Is the judiciary abusing its power? Does the judiciary hold the same value, as it had earlier? Can judges be permitted to do anything in the name of ‘independence’? Contemplating to the recent involvement of the judges of High Courts and Supreme Court in cases of direct and indirect corruption and seeing the nature of independent judiciary India holds, the whole situation needs to be settled promptly.

Author: Anushtha Srivastava

You can reach author at: anushtha100@gmail.com 

Anushtha is currently pursuing law from UPES, Dehradun. She is also a researcher with TA.

Endnotes:

[1] AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 2 SCR 365.

[2] https://www.ndtv.com/india-news/as-chief-justice-of-india-calls-hearing-on-corruption-fairness-questioned-1773875

[3] http://www.financialexpress.com/india-news/after-axing-order-cji-dipak-misra-withdraws-judges-bribery-case-from-justice-chelameswars-bench/929295/

[4] https://www.ndtv.com/india-news/as-chief-justice-of-india-calls-hearing-on-corruption-fairness-questioned-1773875

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