India’s Judiciary Crisis – A Rude Wake Up Call

Indian Judiciary Crisis - A rude Wake up call

Issue :-

  • Proposed resolution of impeachment of the Chief Justice of India.
  • It brings to fore issues that directly affect on the independence of the judiciary.

Reason for discomfort :-

  • Political community sets out to handle a matter pertaining to the judiciary.

The question then is, should there be some safeguards before the motion, tabled by the requisite number of MPs , is admitted ?

Because :-

  • An independent judiciary itself is the foundation on which the rule of law rests.
  • In the discharge of official duty, a judge is obliged to decide on a variety of matters concerning the government and the political class.
  • Fixity of tenure and removal only by impeachment, no doubt, are guarantees for independence. But mere admission of an impeachment motion can cause the incalculable damage and the consequential loss of reputation, that can never be redeemed, need to be primarily addressed.
  • Therefore, the impeachment process itself causes some damage to the institution of the judiciary.

Therefore, it must be ensured that the large body of independent judges is protected and they are not inhibited and shackled while going about their work with any possible threat of an impeachment.

Question of procedure

Article 124(4) of the Constitution and the provisions of the Judges (Inquiry) Act, should be so interpreted that before admitting a motion of impeachment against a judge of a high court or the Supreme Court that

  • The presiding officers in Parliament should be obliged to obtain the concurrence of the full court of the Supreme Court.
  • Further if it involves a judge of the apex court, that judge would not participate in the sitting.
  • It could be provided that in the absence of there being any response from the Supreme Court in four weeks’ time, it would be a deemed concurrence. Any admission of the motion without the concurrence would render the motion illegal and void.

There are several reasons why this interpretation would perform with our constitutional scheme :-

  • First, after the Second Judges case, today the power to appoint judges of the higher judiciary vests in the apex court. Removal being directly connected to appointment.
  • Second, the principle of independence of the judiciary on which the Second Judges Case was founded for the aspect of appointment should apply with full vigour to the initiation of the removal process. In a matter like this, which is so integral to the judiciary and to its independence, such a safeguard ought not to be seen as diluting the powers of the presiding officers of Parliament.
  • Third, on matters of criminal prosecution of a sitting judge, the Veeraswami case has already recognised a similar methodology of screening. Impeachment and prosecution are from the perspective of the institution on the same pedestal.
  • Fourth, the Judges (Inquiry) Act expressly provides that the presiding officers, before admitting a motion for impeachment, will consult such persons as they deem fit. It can be safely presumed that while the peer group will immediately concur to get rid of the black sheep from their midst, they will zealously safeguard a judge who is unfairly targeted.

Problems in the judiciary’s court :-

  • Collegium recommendations by the executive, notwithstanding the categoric pronouncement in the National Judicial Appointments Commission (NJAC) case.
  • Vacancies are mounting and pendency of cases is reaching alarming proportions.
  • If In the eyes of the international community, the executive government also will be shown in a bad light if the judiciary in the country is not independent and strong & it will further impact as :-
    a) Business will not be forthcoming.
    b) Tourism will suffer.
    c) There will be rise of fear and insecurity.
    All this will deliver a serious blow to the economy.

Conclusion :-
It is time that by a judicial order the Memorandum of Procedure (MOP) is set out and a mandamus issued to government to follow the same and clear pending appointments in a time-bound manner. Further If judiciary will be strong from top that will also rejuvenate the high courts and give the judges their much-needed confidence.

( Source :- TheHindu Written by  KV Viswanathan ) 

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