Insights into Editorial: New CJI, Old Concerns of Judicial

Independence
insightsonindia.com/2019/11/11/insights-into-editorial-new-cji-old-concerns-of-judicial-independence

November 11,
2019

Insights into Editorial: New CJI, Old Concerns of Judicial Independence

Introduction:

The judiciary is the final interpreter and the guardian of the Constitution.

In a Federal Constitution, the judiciary is constituted as ultimate authority to restrain any

exercise of absolute, capricious and arbitrary power.

The judiciary in addition to the function of maintaining the supremacy of the

Constitution is also the guardian of the fundamental rights of the people.

Really, the judiciary safeguards the civil and minority rights and play the role of
guardian of the social revolution.

Context:

Justice SA Bobde named 47th CJI, to take over on November 18:

President Ram Nath Kovind appointed Justice SA Bobde, the senior-most judge in the
Supreme Court after CJI Ranjan Gogoi, as the next Chief Justice of India.
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Bobde will be the 47th CJI. He will hold office till April 23, 2021.

A notification issued by the law ministry under Article 124 (2) said that the President
was pleased to appoint Justice Bobde as the next CJI with effect from Nov 18, 2019.

CJI designate Bobde will take over at a crucial time when the country would still be
coming to grips with the Ayodhya ruling of outgoing CJI Gogoi.

Justice Bobde is part of the five-judge bench which reserved its order in the case.

Allocation of cases: Should be in collective decision:

The Supreme Court’s independence of the judiciary is frequently questioned in

politically sensitive matters.

The single-most important reason for this is the power of the CJI to constitute benches
and allocate cases as the master of the roster.

This has led to erosion of the Supreme Court’s standing with respect to stakeholders.

In July, a petition was also filled to have a collegium of Supreme Court judges collectively
allocate cases rather than leave the entire power in the hands of the CJI.

Role of Judiciary: In Constituent Assembly debates:

During the Constituent Assembly debates, member after member yearned for an
independent judiciary. Seeing the current condition of supreme court, the demand of
this debates was perhaps not unjustified.

The people of a nation may lose confidence in the Executive (The King), or the Legislature
but it will be an evil day if they lose their confidence in its judiciary. The judiciary is the
guardian of human rights and civil liberties.

The judiciary contributes vitally in the preservation of peace and order by settling
disputes between the State and Citizens and among citizens which leads to a
harmonious and integrated social existence.

A judge should practice a degree of aloofness consistent with the dignity of his office. A
trend to re-instate the independence of the Supreme Court is needed.

Behaviour and conduct of members of the higher judiciary must re-affirm people’s faith
in the impartiality of the judiciary.

Need of the Hour is Independence of Judiciary:

The appointment of Justice Sharad Arvind Bobde as the Chief Justice of India (CJI)
gives fresh hope to all the stakeholders in the administration of justice.

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 It comes at a time when the Supreme Court’s standing amongst the people has
greatly eroded.
The Supreme Court has not only stopped being the protector of the fundamental
and other constitutional rights, but has also failed to act as the guardian of the
rule of law.
Its role must be judged in the context of politically sensitive cases involving
citizens, opposition parties, activists and executive actions in day-to-day
governance.
In these areas, the Court has virtually deferred to the executive instead of
stepping in to restore constitutional rights and values in letter and spirit.
The Court’s performance in routine matters, of course, is outstanding. But the
independence of the judiciary is judged only on the touchstone of its decisions
given in politically-sensitive matters.
The behaviour and conduct of members of the higher judiciary must re-affirm
people’s faith in the impartiality of the judiciary.
And that “every judge must at all times be conscious that s/he is under the public
gaze”.

Way Ahead:

But one hopes that he will function as the master of the roster in an independent and
objective manner.

The Court comprises of outstanding and independent judges and each of them is
capable of handling even politically-sensitive matters.

So, there is no reason to assign them to a particular bench only. If this trend is reversed,
Justice Bobde would have achieved a lot in re-stating the independence of the
Supreme Court.

For a democratic government, Rule of Law is a basic requirement, and for the
maintenance of Rule of Law, there must be an independent and impartial judiciary.

In a State professing Rule of Law, the aim should be to provide for a system which
secures to its citizens adequate procedure for the redress of their grievances against
the State before forums which are able to administer justice in an impartial manner
without any fear and favour.

Conclusion:

The common notion is that justice must be in accordance with law.

But there is an element in justice called equity. Equity is different.

Equity is something you consider where does truth lie, what is the hardship that will be
caused to litigants, what is the larger goal that will be achieved.

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So, for instance, the law is that if by setting aside the impugned order, you will restore an
order which is illegal, then you don’t set it aside. Balance. So, people normally mix up
equity and justice.

Yet, the Court has allowed itself to be weakened. Perhaps, B R Ambedkar was right in
saying that although the CJI is a very eminent, person, “the Chief Justice is a man with all
the failings, all the sentiments and all the prejudices which we as common people have”.

An independent and strong judiciary is a basic feature of the Constitution.

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