THE GIST of Editorial for UPSC Exams : 27 APRIL 2019 (An illustrative case (The Hindu)

An illustrative case (The Hindu)

Mains Paper 3 : Polity
Prelims level : CJI
Mains level : Role and responsibilities of CJI

Introduction

•  Unlike Parliament, the Supreme Court lacks the conventional legitimacy derived from securing membership to its judges through elections.
•  The court’s command is derived from, and grounded in, a general acceptance of its status as an impartial referee of disputes and as an unbiased interpreter of the law.
•  Predictably, its sense of esteem and its sense of moral authority, which together constitute its most important assets, are immanently fragile.
•  Any degradation of the court’s acceptance amongst the public of its reputation as an equitable body will, therefore, impair its authority irredeemably.
•  And that today, as the Chief Justice of India (CJI) faces allegations of sexual harassment, is the explicit threat that the court faces.

The story so far

•  The complainant, who joined work in the Supreme Court in May 2014 as a Junior Court Assistant, and who worked in the court of the present CJI, Ranjan Gogoi, from October 2016, alleges not only that she is a survivor of sexual harassment, but also that she was unfairly dismissed from service.
•  What is more, on her dismissal, she claims that she and her family were foisted with a series of false criminal cases and were subjected to abuse at the hands of the police. She sent her complaint, in the form of a sworn affidavit, to 22 judges of the Supreme Court on Friday, and on the same day, four magazines, Scroll, The Wire, Caravan and The Leaflet, sent a questionnaire to the CJI.
•  In response, the court’s Secretary General denied the allegations, terming them “scurrilous”, and claimed that it was “also very possible that there are mischievous forces behind all this, with an intention to malign the institution”.
•  On the next day, minutes after the story was published online, the CJI convened an extraordinary hearing by a Bench comprising himself and two other judges to hear what was termed “In Re: Matter Of Great Public Importance Touching Upon The Independence Of Judiciary”.

Significance behind this proceeding

•  These proceedings were initiated suo motu, i.e. on the court’s own motion, without awaiting a formal prompting from a party.
•  In a hearing which disregarded every ordinary precept of due process, not only was no notice given to the complainant, calling upon her to appear, but her allegations were effectively dismissed outright as a product of a larger conspiracy.
•  In a brief order that was issued at the end of the hearing (which, bizarrely, wasn’t signed by the CJI, despite his participation in the proceeding), the court said it was leaving it to the “wisdom of the media to show restraint”, to decide what should or should not be published, since “wild and scandalous allegations undermine and irreparably damage” the judiciary’s independence.
•  It’s easy to see, though, that if anything, it was the court’s own conduct that was blighting its moral prerogative.
•  Since then, the CJI withdrew himself from the case, but a new Bench that he assembled has now ordered a probe by a former Supreme Court judge, Justice A.K. Patnaik, to examine whether these allegations spring out of a plot to overthrow the judiciary.

Hewart’s dictum

•  That justice should not only be done but should manifestly and undoubtedly be seen to be done is an aphorism often attributed to Lord Chief Justice Hewart of the King’s Bench. But, as a former Australian judge, James Spigelman, has written, the maxim could scarcely have had “a less auspicious provenance”.
•  Natural justice, therefore, has always stood on delicate ground. But as principles go, it is so axiomatic to the rule of law that courts around the world have repeatedly stressed on Hewart’s dictum, notwithstanding the author’s own indiscretions.
•  That justice should be open has also been immortalised in Article 14 of the International Covenant on Civil and Political Rights, which states that “all persons shall be equal before the courts and tribunals,” that everyone “shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”.
•  Not only is India a party to this treaty, but its Constitution also guarantees to every person equality before the law.
•  But much as the Supreme Court has relied on these codes to invigorate its own sense of power, as it has repeatedly shown in recent times, it’s just as capable of renouncing its grand declarations when one of its own is under the cosh.

Way forward

•  These are no doubt extraordinary circumstances, but to advance the cause of justice, it’s important that basic procedural norms are respected.
•  Given the absence of a proper, institutional mechanism, it’s likely that any mode adopted to judge the charges made will prove indiscriminate.
•  But that’s precisely why the Supreme Court needs to step up, to collectively show us that it can establish an ethical precedent.
•  The assertions made may or may not be veracious, and they may impugn only the CJI. But ultimately the court’s institutional integrity is at stake here.
•  It’s therefore imperative that the court articulates and espouses a commitment to the rule of law.
•  It needs to show that the principles of due process that it holds applicable to all of us are just as applicable to one of its own.
•  That due process isn’t merely a poetic homily, to be discharged on convenience, but that is integral to the court’s foundations and to the Constitution’s guarantee of equal protection.

Online Coaching for UPSC PRE Exam

General Studies Pre. Cum Mains Study Materials

Prelims Questions:

Q.1) In the context of the discretion of Governor under the constitution, consider the following statements:
A. The Constitution provides the Governor with the power to “remit or commute the sentence of any prisoner”.
B. The Governor’s decision will be subject to judicial review by the constitutional courts.

Which of the statements given above is/are correct?
i. A only
ii. B only
iii. Both A and B
iv. Neither of the above

Answer: III

Mains Questions:
Q.1) The court needs to show that the principles of due process are just as applicable to one of its own. Comment