{"id":346,"date":"2020-06-22T07:05:28","date_gmt":"2020-06-22T07:05:28","guid":{"rendered":"https:\/\/www.competitionreview.in\/blogs\/?p=346"},"modified":"2020-06-22T07:05:28","modified_gmt":"2020-06-22T07:05:28","slug":"indian-judiciary-at-the-crossroads","status":"publish","type":"post","link":"https:\/\/www.competitionreview.in\/blogs\/2020\/06\/22\/indian-judiciary-at-the-crossroads\/","title":{"rendered":"INDIAN JUDICIARY AT THE CROSSROADS"},"content":{"rendered":"\n

\u201cThe foundation of a democracy, the source of its perennial vitality, the condition for its growth, and the hope for its welfare\u2014all lie in that great institution, an independent judiciary.\u201d<\/em><\/h4>\n\n\n\n

\u2014Nani Palkhivala <\/h4>\n\n\n\n

Societies in ancient India were governed by\n\u2018moral law\u2019: it was not the law as it is perceived today, since it did not owe\nits origin to the command of any sovereign, nor was there any habit of\nobedience to a determinate person as it was believed to have been ordained by a\ndivine author. Thus the ancient rules and regulations were more or less like\nwhat the Romans called jus receptum<\/em>. The earliest known form of law was\nthe Smritis<\/em> which were compiled by the rishis who did not exercise any\npower nor did owe any position to any sovereign but claimed themselves as the\nexponents of divine precepts of law and compilers of the tradition handed down\nby generations. The foremost rank of authority was the Manusmriti <\/em>(Sanskrit:\n\u201cLaws of Manu\u201d or \u201cThe Remembered Tradition of Manu\u201d) compiled in between 200\nBC and 1000 AD. It was also called the Manava-dharma-shastra<\/em> (\u201cThe\nDharma Text of Manu\u201d), traditionally the most authoritative of the books of the\nHindu code (Dharma-shastra) in India. <\/p>\n\n\n\n

Before the dawn of the British Empire in India,\nthe administration and justice were in the hands of the courts established by\nthe emperors, with ruling chiefs owing real and pretended allegiance to them. A\nnotable feature of the British-Indian judicial system before 1852 was the\nexistence of two parallel systems of courts\u2014the Supreme Courts in the\nPresidency Towns, and the \u2018adalats\u2019 in the areas known as \u2018mofussil\u2019, outside\nthe Presidency Towns. After the suppression of the First War of Indian\nIndependence (1857), which finally put an end to Mughal Rule in India, the\nParliament in Great Britain passed the Government of India Act, 1858, which\nauthorised the British Crown to take over the administration of Indian\nterritories from the East India Company. A unified legal system with a tiered pattern\nof civil and criminal courts was established, which remains unchanged to this\nday. High Courts for each Presidency, and later for each Province, were\nestablished under the Indian High Courts Act, 1861. They were enjoined to\nadminister the law according to justice, equity and good conscience. The\nsubordinate judiciary was established, and civil courts were organised in a\nregular hierarchy in each district as per the civil and criminal jurisdiction.\nOver the High Courts was the Privy Council in England, hearing appeals directly\nfrom Indian courts until 1937. The Federal Court of India, the apex\ncourt in India, was established in 1937 under the provisions of\nthe Government of India Act 1935, with original, appellate and advisory\njurisdiction. The Federal Court had exclusive original jurisdiction in any\ndispute between the Central Government and the Provinces. Initially, it was\nempowered to hear appeals from the High Courts of the Provinces. There was a\nright of appeal to the Judicial Committee of the Privy Council in London\nfrom the Federal Court of India. Under the Constitution of India, 1950, appeals\nwere no longer taken to the Privy Council, but to a new constitutionally\nestablished court\u2014the Supreme Court of India. The British-India legal system\nwas left untouched by the Constitution of India, 1950. Article 372 of the\nConstitution provided that \u201call the laws in force in the territory of India\nimmediately before the commencement of this constitution shall continue in\nforce therein until altered, repealed or amended by a competent legislature or\nother competent authority.\u201d The \u2018laws in force\u2019 included not only statutory\nlaws but also common laws. <\/p>\n\n\n\n

In his inaugural address on the declaration of\nNovember 26, 1979 as National Law Day to commemorate 30 years of adoption\nof the Constitution of India by the Constituent Assembly, the then Supreme\nCourt Bar Association President L.M. Singhvi said that the purpose of such a\ndesignation was to emphasise the role and importance of law in the life of our\nRepublic. He also said that the aim behind this move was to review the state of\nlaw and administration of justice, to suggest ways and means of improving our\nlaws and legal and judicial system, to establish better and more meaningful\nequations between the Bench and the Bar, to strengthen the principle of the\nindependence of judiciary\u2026and to maintain, reinforce and augment public\nconfidence in our legal and judicial system. The current events in the Supreme\nCourt have not only sounded a national alarm, but have also threatened the\nconfidence that the public might repose in the judiciary. The court\u2019s\ncollective actions, in undermining every notion of good ethical conduct, has\nstruck a potentially irredeemable blow at the principles highlighted by Singhvi\nin his speech, each of which goes to the root of the constitutional morality\nthat Dr. B.R. Ambedkar held so dear. An unprecedented move was initiated\nfrom four senior-most judges of the Supreme Court when they held a press\nconference and raised a banner of revolt against the Chief Justice of India\n(CJI) on January 12, 2018. This incident has sent tremors across the country in\ngeneral and the legal circles in particular. Despite the divided opinion, no\none can deny that the action of four judges has caused serious damage to the\ncredibility of the institution. It has undoubtedly created a bad precedent of\napproaching the media for redressal of the internal grievances of the\njudiciary. The constant refrain of resolving the problems internally, at first\nglance, is curious, as it appears to be an attempt to close the stable doors\nafter the horse has bolted. The immediate trigger for the press conference was\nthe apparent arbitrariness of the Chief Justice of India in allocating the\nbenches for disposal of cases. The opaque internal structure of the judiciary\nfounded on a combination of unquestioning trust in the office of the CJI along\nwith an instinctive distaste for any interference by the Parliament or\ngovernment in the judicial functioning. Due to the sacrosanctity of both the premises,\nanything to the contrary appears blasphemous. A politicised judiciary might\nwell suffer from a lack of public confidence and provide an opportunity for\npoliticians to fish in troubled waters. Equally critically, this fear of\npoliticisation is misdirected, being based on a naive view that overt\nparliamentary law is the sole method of interference with the judiciary. It\nfails to countenance the more nefarious methods of political interference in\nthe judiciary. As Bentham said, a view the Supreme Court itself has endorsed in\nMirajkar, \u201cin the darkness of secrecy, sinister interest and evil in every\nshape, have full swing\u201d. It is this darkness that the press conference has\nshone a light on. <\/p>\n\n\n\n

The issue that shook the pillars of the Supreme\nCourt in 2017 was the conviction of a sitting High Court Judge Justice C.S.\nKarnan by initiating contempt of court proceedings. It was criticised by many\nthat the bench\u2019s unstated objective was to send Justice Karnan to jail while he\ncontinued to be in office as a judge in order to demonstrate that it applied\nits contempt powers irrespective of whether a person happened to be a judge or\na non-judge. The Supreme Court may well have invoked its contempt powers\nagainst Justice Karnan in order to uphold the institutional honour, majesty and\nreputation. But unfortunately, it allowed the very virtues to be eroded by its\nindifference to well-established principles of procedural fairness and natural\njustice. \n\nThere has to be a reform of The Supreme Court Act to be passed by the\nParliament after an open public discussion involving all stakeholders\u2014civil\nsociety, the judiciary, the Bar and members of all shades of public opinion. As\na first step to such reform, it is important to clarify that the Constitution\nenvisages the powers and jurisdiction of the Supreme Court to be the possible\nsubject matter of a parliamentary law. This is evident from Entry 77 of List I\nof the Seventh Schedule which makes the aforementioned a legitimate subject of\nlaw making. Passage of such a law is critical to rectify the discourse of any\nparliamentary law relating to the judicial anathema. The main focus of the Act\nmust be restructuring of the Apex Court. It is vital that a court with 31\njudges, to function as an apex court, must develop some degree of institutional\ncoherence and such coherence is possible only when the court sits in benches of\ntwo judges each. This structure allows the CJI to be the master of the roster.\nAn antidote to both the problems is the restructuring of the Supreme Court from\nthe root. The CJI cannot absolve himself of his responsibility for the present\nstate of affairs. Being the master of the roster does not mean arbitrary\nexercise of his power. He is to exercise his power without giving a scope for\nany justifiable criticism and not expected to brush aside any suggestions in\nthis regard from his colleagues. Assignment of judges for the hearing of the\ncase has always earned the odium of many in the history but such instances were\nfew and far between and they were never discussed in public. A proposed law is\ncritical to start a frank public conversation around what the judiciary needs\nto restore public confidence. Such a public conversation is necessary to\nunderline that the judiciary is part of a republican constitutional framework, not\nthe preserve of lawyers and judges alone. An internal resolution will be its\nantithesis, which might defuse the present crisis, but will exacerbate the\ndeeper wound.\n\n\n\n<\/p>\n","protected":false},"excerpt":{"rendered":"

\u201cThe foundation of a democracy, the source of its perennial vitality, the condition for its growth, and the hope for its welfare\u2014all lie in that great institution, an independent judiciary.\u201d \u2014Nani Palkhivala Societies in ancient India were governed by \u2018moral law\u2019: it was not the law as it is perceived today, since it did not […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[3],"tags":[],"_links":{"self":[{"href":"https:\/\/www.competitionreview.in\/blogs\/wp-json\/wp\/v2\/posts\/346"}],"collection":[{"href":"https:\/\/www.competitionreview.in\/blogs\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.competitionreview.in\/blogs\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.competitionreview.in\/blogs\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.competitionreview.in\/blogs\/wp-json\/wp\/v2\/comments?post=346"}],"version-history":[{"count":1,"href":"https:\/\/www.competitionreview.in\/blogs\/wp-json\/wp\/v2\/posts\/346\/revisions"}],"predecessor-version":[{"id":347,"href":"https:\/\/www.competitionreview.in\/blogs\/wp-json\/wp\/v2\/posts\/346\/revisions\/347"}],"wp:attachment":[{"href":"https:\/\/www.competitionreview.in\/blogs\/wp-json\/wp\/v2\/media?parent=346"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.competitionreview.in\/blogs\/wp-json\/wp\/v2\/categories?post=346"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.competitionreview.in\/blogs\/wp-json\/wp\/v2\/tags?post=346"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}