THE GIST of Editorial for UPSC Exams : 10 MAY 2019 (By established law and procedure (The Hindu))

By established law and procedure (The Hindu)

Mains Paper 2: Polity
Prelims level: Due procedure of law
Mains level: Various statutory and regulatory bodies

Context

•  A well-publicised case of a complaint by a former employee of the Supreme Court of India against the Chief Justice of India (CJI) has raised questions about legal provisions, procedural propriety and different facets of what could be categorised as principles of natural justice.
•  As a constitutional institution, the Supreme Court had to respond to the same.

In public domain

•  The procedure that was being followed cannot be criticised as being either illegal or otherwise arbitrary.
•  A procedure had to be devised as the circumstances were unique, without any precedent. The only guidance available was a ‘Report of the committee on in-house procedure (in brief “procedure”), drawn up by a meeting of the full court of the Supreme Court on December 15, 1999.
•  The procedure adopted is a public document available on the court website. It deals with situations involving a High Court judge, a Chief Justice of a High Court and a judge of the Supreme Court separately.
•  The procedure specifically states that even in the case of an inquiry into a complaint received against a judge of the Supreme Court, the committee shall hold an inquiry on the same pattern as the committee constituted to examine a complaint against a judge of the High Court.
•  The procedure does not expressly deal with the case of the CJI but it definitely would be applicable to the case of the CJI as well because the CJI is also a judge of the Supreme Court.
•  Thus, the procedure does not contemplate the participation of a legal practitioner because it would not be a formal judicial inquiry involving the examination and cross-examination of witnesses by lawyers.

Legal precedent

•  The procedure laid down in the in-house procedure has been adhered to in the present case. The law in Indira Jaising has also been adhered to.
•  The complainant does have remedies in law.
•  The principles of natural justice which are alleged to have been violated in the present case, by the refusal on part of the committee to afford the complainant a right of legal representation and the decision not to publish the report of the committee, do not and cannot have a straightjacketed approach.
•  What has been done by the committee is in accordance with the procedure that is laid down.
•  In doing so, it cannot be said that there is a violation of natural justice for the simple reason that what is involved is not a judicial inquiry but a fact-finding one. A right of legal representation is not inherent in such an inquiry.

Way forward

•  The higher judiciary of this country is an institution to be cherished and its reputation is a matter dear to every citizen of this country. Some of us are more vocal than the rest, but all of us are stakeholders.
•  The Supreme Court and the High Courts are constitutional institutions and the men and women who occupy positions in the higher judiciary are required to be persons of impeccable integrity.
•  When such complaint is made, it has to be inquired into in accordance with the procedure that is laid down by the full court of the Supreme Court itself, and the said in-house procedure has been laid down keeping in mind the constitutional ethos.
•  The said in-house procedure has all the attributes of law. It is a law governing such situations.
•  Where the law is adhered to, claims for deviation therefrom or complaints of adherence to it cannot be countenanced.

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Prelims Questions:

Q.1) Consider the following statements regarding North Eastern Council (NEC):

1. North Eastern Council was established under the North Eastern Council Act, 1971.
2. Minister of Development of North Eastern Region (DoNER) is the ex-officio chairman of the North Eastern Council.

Which of the above statements is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2

Answer: A
Mains Questions:
Q.1) Is it right on our part to be sceptical about the propriety and correctness of the procedure followed by three Supreme Court judges, persons with unblemished reputations, in their character, conduct and integrity? Explain.