Judiciary should be independent – and transparent

The views expressed by two judges of the Supreme Court of India form the essence in the existence of that constitutional institution. While Justice Kurien Joseph shared his concerns through his letter to the colleagues, Justice Chelameswar pointed his finger at the issues through his verbal observations.

In Justice Kurien Joseph's letter reminding about the grievous consequences from the Centre's obstruction to the appointment of judges, he has mainly addressed the Chief Justice Dipak Misra. In effect the cardinal issue he raised is that the current inaction of the Centre amounts to a political interference in judicial appointments. When Kurien Joseph upholds the independence of the judiciary, Justice Chelameswar stresses the principle of transparency within that. Both – independence and transparency – are indispendable for a just judicial institution.

Disagreements about appointment of judges have been there for long. And the drawbacks of the collegium system can also to be debated. But that debate is to be resolved with the participation of top ranking jurists. That being so, there is merit in the argument that the Centre is trying to impose its political agenda on the pretext of that dispute. The Centre has been sitting over for long on the panel of judges submitted for appointments by the collegium.

The normal course is to accept the recommendations. It can also be returned if there is any reasonable objection, with an explanation of what the objections are. But what the Central government has done is to neither accept nor return it, thereby plunging the judiciary into a crisis. This acts as a blow to the independent nature of the judiciary which is a serious matter. It is for the first time in the history of the collegium that it is not informed what the fate of its recommendation is. And those like Justice Kurien Joseph do read the implicit political interference in this. There is a context for the Central Government to have a grudge against Justice KM Joseph who figured in the recommended panel. For it was Justice KM Joseph who struck down, as constitutionally null, the imposition of central rule in Uttarakhand when Modi government imposed it. The undelying message that judges should not do anything causing displeasure of the executive, amounts to negating the independent existence of the judiciary. Accepting this would tantamount to the judiciary cancelling itself. What Kurien Joseph asks the Chief Justice is to proceed with follow up action and restore the independence of the judiciary. He even demands having an appropriate bench to take the issue suo motu on judicial side to resolve the issue. His reminder is one that merits urgent attention and action.

The transparency of judiciary within itself is an integral part of its credibility. On this matter, one could even say that the chief justice has not done many things that he could have done. The judiciary should not merely be free and impartial, but also seen to be so. When four judges held a press conference on January 12 and pointed at the inappropriateness of the chief justice, it was because they had no other recourse. It is the chief justice who decide what cases should go to which bench. But the practice followed by Justice Dipak Misra gave room for this to be questioned. It does not need to be said that in the bench to consider the capitation fee case of Prasad Medical College, in which he was a target of allegation, it was quite inappropriate for him to be one among the judges. When Justice Chelameswar constituted a special constitutional bench for that case, Dipak Misra cancelled that. The four judges in their press conference had also questioned the reference of the case regarding Justice Loya's death to a bench which had a judge with connections to BJP leaders. It is the chief justice himself who decrees that the chief justice will be the master of roster. And when Shanti Bhushan filed a related petition before Justice Chelameswar, the latter recused himself saying openly that he would not like to issue another order that would be nullified within 24 hours. The stances of Dipak Misra, however legally valid they may be, will affect the credibility of the court, as long as they do not ensure transparency and judicial sense. The complaint raised against the Central Government that it had harboured vengeance against Justice P Krisha Bhat of Karnataka, is not to be dismissed as trivial. Transparency is the soul of judiciary. And it is against it that threats have been raised.