Prashant Bhushan, Anjali Bhardwaj On Deep Fault lines In The Indian Judiciary

Unfortunately, even after the passage of the Right to Information (RTI) Act in 2005, which is also applicable to the judiciary, experience suggests that the courts have not been forthcoming in providing information about their own functioning under the law.

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Prashant Bhushan, Anjali Bhardwaj On Deep Fault lines In The Indian Judiciary - SurgeZirc India
Prashant Bhushan, Anjali Bhardwaj On Deep Fault lines In The Indian Judiciary / Photo credit: Screenshot

The protection of peoples’ rights is closely linked to the functioning of a fair, independent and effective justice system. In the constitutional scheme, the Indian judiciary occupies a pivotal position as the guardian of the fundamental rights and liberties of individuals.

It has been widely credited with pronouncing progressive judgments upholding the rights of the marginalized and the values enshrined in the Constitution. These virtues have not been absolute, however. There have been serious concerns, from time to time, regarding the subversion of the autonomy of the judiciary, including the period when Emergency was declared in the 1970s.

Recent developments have exposed deep fault lines in the Indian judiciary. In January 2018, a press conference was addressed by four senior judges of the Supreme Court. The trigger for the unprecedented step was apparently the arbitrary allocation of benches by the chief justices, with cases being ‘selectively’ assigned to particular judges to obtain particular outcomes.

The allegations raised serious doubts about the independence of the judiciary given that an estimated 45 to 70 percent of the litigation involves the government. These doubts have been further exacerbated by the handling of several politically sensitive cases by the apex court involving allegations of corruption against some of the highest functionaries in the government, such as in the Rafale deal and the Sahara–Birla diaries.

In April 2019, allegations of sexual harassment surfaced against the chief justice of India (CJI). The manner in which the case was dealt with brought to the fore questions about the lack of any credible mechanism to examine complaints regarding misconduct by judges of the higher judiciary, especially the CJI.

Immediately after the complaint was made, the CJI presided over a hearing in which he himself was a party, flouting the fundamental principle of justice that no one should be a judge in his/her own cause. The complainant was publicly maligned, and in violation of the principles of natural justice, was not even given an opportunity to be heard.

After massive public outrage, an inquiry was set up to look into the matter, though the way in which it was conducted foreclosed the opportunity for justice to prevail. The report on the basis of which the complaint was finally dismissed was never provided to the complainant!

When allegations of financial corruption surfaced against a previous CJI, in the medical college case, the matter was similarly dismissed with little regard for established procedures and principles. In that case, not only did the Supreme Court dismiss the plea for a court-monitored probe by a Special Investigation Team (SIT), but also held it to be contemptuous and imposed costs on the petitioner organization.

The inability of the judiciary to provide a robust and credible system for looking into allegations of misconduct by judges seriously erodes public trust and confidence in the institution. Despite glaring loopholes in the existing procedures, including the fact that there is no effective mechanism in place to receive and act on complaints of misconduct against the CJI, the judiciary has taken no steps to rectify them.

Perhaps one way in which the judiciary could have infused greater accountability in its functioning without compromising its independence was by being transparent. The judiciary has played a seminal role in recognizing and furthering the people’s right to information.

Unfortunately, even after the passage of the Right to Information (RTI) Act in 2005, which is also applicable to the judiciary, experience suggests that the courts have not been forthcoming in providing information about their own functioning under the law.

Many RTI applications filed by citizens seeking information from the courts have themselves required judicial adjudication. These include information requests about records related to the appointment of judges, declarations of assets held by judges, cases pending with the apex court in which arguments had already been heard but judgments had been reserved.

And correspondence between the then CJI and a judge of the Madras High Court regarding the attempt of a Union minister to influence judicial decisions of the said high court. By resisting transparency in its functioning, the judiciary has evaded its accountability to the people of India.

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