MASTER OF THE NEXT STEPS
Why has this issue cropped up ?
In an unprecedented move, seven Opposition parties initiated the process to impeach the Chief Justice of India (CJI).
Master of the Roster
• On April 11, a three-judge Bench headed by the CJI had given a judgment upholding absolute power of CJI in the constitution of benches. It was held that the Chief Justice is an institution in himself.Thus we are told not to question the CJI’s decisions.
• But then by the same logic, is Rashtrapati Bhavan not an institution? Is the Prime Minister’s Office not an important institution of our democracy? Is Parliament not the most important institution?
• If the answer to these questions is in the positive, then how come decisions by these high constitutional functionaries are routinely struck down by the judges of High Courts and Supreme Court?
• In fact if men were angels, there would be no need to limit the powers of public officials through constitutional means.
• Judges too are humans like us and thus are fallible. Judges are our last resort against governmental authoritarianism and that’s why they must be insulated from the governmental control.
Adminstrative and Judicial capacities
• Constitutionally speaking, the judiciary is not ‘state’ under Article 12. But in Naresh S. Mirajkar (1967), the apex court itself made a distinction between ‘judicial’ and ‘administrative’ powers of the court.
• Thus when the CJI acts in his ‘administrative’ capacity, his actions are certainly subject to fundamental rights, including the right to equality.
• Right to equality includes right against arbitrariness. In Tulsiram Patel case (1985), the Supreme Court itself held that non-observance of the principles of natural justice too violates right to equality.
• Thus the CJI’s participation in cases about his own powers has not gone well with those who believe in the fundamental rule of natural justice that ‘no one shall be a judge in his own case’. His recusal could have enhanced his own credibility and saved the judiciary from the crises.
• The Supreme Court Rules, 2013, framed under Article 145 of the Constitution, do state that CJI is master of rolls. But since constitution of Benches is an ‘administrative’ function, this function cannot be exercised at the CJI’s whims and wishes. Thus the cherry-picking in Bench constitution may not be violative of ‘the rule by law’ but is definitely contrary to the ideals of ‘the rule of law’.
• Spirit of law at times is more important than letter of law. An interpretation accepting no limitations on the exercise of the powers of the CJI and justifying even power to act in an arbitrary manner means a re-writing of the entire jurisprudence developed by the Supreme Court on the exercise of ‘administrative discretion’.
Way Forward
• In Prem Chand Garg (1962), the apex court held that rules made by the court violative of fundamental rights may be struck down as ultra vires of the Constitution. Thus if the rule of the CJI being master of rolls is used in an arbitrary manner, such a rule should either be read down or there should be safeguards built into it.
• Certainly, all judges are equal and seniority has no bearing on the constitution of Benches. But then equality also means that senior judges be treated equally with junior judges. Their exclusion from all constitutional Benches has certainly sent the wrong signals.
• The CJI yet again has this opportunity today which he should proactively use to bring in real reforms by amending the Supreme Court Rules on constitution of Benches.
• Any CJI would have a fairly good idea about the ideological positions of all the brother judges and therefore even if there is no malice on his part, he can always constitute a Bench with judges who are likely to go this way or that. This power therefore has a huge impact on the justice delivery system.
• In the wake of the current crises, some mechanism can be evolved to ensure that one individual does not have absolute power to make or unmake Benches.
Conclusion
We may disagree with a number of judicial and administrative decisions of the CJI. But none of his actions can really amount to ‘incapacity or proved misbehaviour’, i.e. grounds of impeachment, and thus the rejection of the notice by the Vice-President. Let the CJI himself come forward in leading the process of developing the mechanism that will exclude the remotest possibility of arbitrariness by future CJIs.
Relevance : GS 2
