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Are judges over protected from law?

Courts should reaffirm that principles of natural justice are sacrosanct. History is replete with instances of political clout being used to prevent the judiciary from functioning properly

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SC has failed the test of natural justice in the charges against CJI

The recent events that have shown the Supreme Court in not-so-flattering light are a perfect opportunity to study and understand the principles of natural justice, as applicable to the Indian judiciary.

The incidents, which have triggered a debate on whether judges have too much protection from the law, can be put into three categories: an alleged case of sexual harassment, an alleged case of conspiracy, and the response of the Supreme Court judges to the allegations. The allegations have been well-documented in the press and need not be repeated. Further, it is hardly advisable to speculate on facts that remain shrouded in sealed envelopes, confidential documents and in-camera proceedings. What we do know for sure is how the judges reacted to the allegations, which informs this article.

A foundational lesson every law student, especially in common law countries, is taught is that of natural justice: every person has the right to a fair hearing. These principles of natural justice have several components, such as the requirement to ensure that both sides are heard, have adequate legal representation, and are provided a reasoned decision.

These principles, although credited with having originated in English law, are well-embedded in Indian jurisprudence as well. The Supreme Court, time and again, has not hesitated to remind us of how sacred these are. But, the events of the past fortnight suggest that these principles apply only weakly to persons within the institution of the judiciary.

Consider, for example, the fact that Chief Justice of India Ranjan Gogoi, against whom the principal accusations were made, decided to call and chair the court at the first special hearing of the allegations. Natural justice has it that no one should be a judge in their own case.

One could grant that the decision to chair the hearing was made in a haste, but the statements that followed it clearly showed that there was no effort to even appear unbiased. At the hearing, the complainant was accused of having a criminal background and of having two first information reports lodged against her. Bias can be of several kinds, including apparent bias, which is often hard to prove. Here, though, there was no room for doubt.

Consider also the composition of the bench hearing the allegation. This, too, was unusual, for it comprised three men, all members of the Supreme Court. Even subsequent attempts to reconfigure the group, to one with a majority of women, remain under a cloud. They are all, still, colleagues of the person against whom allegations are being heard. There is no outsider present, who could have offered a semblance of impartiality. Collegiality among members of the Indian judiciary is well-documented and case studies of management biases and peer pressure also abound. The composition also goes against statutory principles—ironically, derived from a landmark Supreme Court judgment—of dealing with sexual harassment at the workplace.

If all this is not enough to support the argument that judges in India appear to be above the law, there is the further instance of the complainant being denied legal representation at the administrative hearing that followed.

Even if the allegations were untrue, setting up the hearing in a way that one person clearly has insignificant powers of negotiation is really no fight at all.
The principles of natural justice are not idle words. They are grounded in morality and intended to help build institutions that are impartial and trustworthy and instil public confidence. CJI Gogoi’s words that this was a matter of grave public importance and touched upon the independence of the judiciary certainly rang true, but his context was misplaced. While both the sets of allegations—of sexual harassment and conspiracy—are grave, the real test of the judiciary began not with the levelling of the allegations but after these were made. To the ordinary observer, the judiciary appears to have, thus far, failed the test.

We are at a juncture where the courts in India need to urgently reaffirm that the principles of natural justice are sacrosanct, and it is the duty of every institution, authority and person to act fairly. This affirmation needs to be made afresh by the Supreme Court, not merely in passive thought or words, but in spirit. Not too long ago, it was suggested that the Supreme Court was among the most trusted institutions in the country.

The past two weeks suggest that there may be a trust deficit between the people and the court. Surely, amends need to be made.

Sumathi Chandrashekaran is a policy lawyer with interests in legislative, regulatory and judicial reforms

Judges need to be protected from political pressures

Pallav Mongia

In any country governed by the rule of law, an independent judiciary is indispensable to the cause of justice. The Constitution entrusts the judges with the most vital duty in a democracy—that of shielding the citizens from the excesses and abuse of powers by the legislature and executive. The Indian judiciary is a champion of citizens’ fundamental and legal rights and the same is attributable to its independence from the other two wings.

In one of the darkest days for the judiciary, Justice HR Khanna was in January 1977 superseded by his junior judge, Justice MH Beg, for the post of the Chief Justice of India (CJI) a few months after he gave a dissenting opinion in the now-infamous Habeas Corpus case. Justice Khanna said fundamental freedoms of the citizens of India were not for the executive to take away, even by plunging the country into a state of Emergency. Since his opinion wasn’t in line with the thinking of the ruling dispensation, Justice Khanna was punished for it. This is a classic example of how the political class, at loggerheads with the interests of the citizens, reacts when a judge tries to shield the citizens from such an outreach. The sanctity of the judiciary was breached and public interest had to give way to the will of the political class. Eventually, the system was refined to shield the appointment of judges from the pressures of the government.

The situation is aptly explained by BR Ambedkar. “We do not want to create an Imperium in Imperio and at the same time we want to give the judiciary ample independence so that it can act without fear or favour of the executive,” he says.

The concept of independence of the judiciary is not limited to freedom from executive pressure or influence, but also from undue pressures and influence from other quarters such as business leaders, the police, undertrials and convicts.

Here is another example. Once the chief judicial magistrate of Nadiad in Gujarat found that the police were not serving summons on time and flouting its orders. The police inspector requested personal attendance after the magistrate reprimanded the force in an open court. In the meeting, the magistrate was told to consume liquor. When he refused, he was assaulted, tied up and handcuffed. A photographer was called and police personnel posed with the handcuffed magistrate. The pictures were splashed in newspapers. All of this just because the magistrate refused to give in to police pressure so as to ensure justice for the petitioners appearing his court. This incident made the Supreme Court put in checks for arresting a judicial officer.

As is evident, the system has evolved but the intent is not to grant immunity to the judges. Therefore, the question that do Indian judges have too much protection from the law invokes the image of an arbitrary judge committing offences impervious to consequences. In reality, the only additional check from a regular case is that in cases where an FIR needs to be filed against a constitutional court judge, permission has to be sought from the CJI or any other Supreme Court judge. Even in the present controversy, where allegations have been made against the CJI, appropriate action has been initiated by the in-house inquiry committee. Needless to add, against any order of this committee, appropriate judicial remedy would lie.

History is replete with instances where political clout or death threats have been used to prevent the judiciary from discharging its functions. Keeping the judges
exposed not only allows the disgruntled to retaliate, but also allows external forces to interfere, pressure and alter the course of judicial proceedings.

More recently, the attempted impeachment of the former CJI Dipak Mishra and the protracted drama over the elevation of Justice KM Joseph have been seen as moves to intimidate the judges into becoming the lapdogs of the political class instead of watchdogs of society.

Another argument in favour of independence of the judges is to prevent the system of patronage by political parties from seeping into the judiciary. If the judges do not remain immune from political pressures or executive misadventures, they may be forced to align with political agendas, rendering them unable to shield the citizens from the oppressions of the powers that be. This is the reason why the Constitution envisages the freedom of judiciary as one of its basic tenets.

In my opinion, judges do not have too much protection. They have enough to insulate them from external influences with enough checks and balances that are evolving with time.

Pallav Mongia is an advocate on record in the Supreme Court

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