A judiciary independent of a king or executive alone is a good thing; but independence from the will of the nation is a solecism, at least in a republican government.
-Thomas Jefferson
(Declaration of Independence)
‘Independence of Judiciary’, a phrase for which people around the world have sacrificed their lives since time immemorial. It was emphasized by the founding father of our constitution and was made a part of basic structure of the Constitution of India in Keshwananda Bharti v. Union of India (1973) so that it could never be compromised. Supreme Court has been proactive and has been sitting like a watchdog to wreck any attempt made on its independence, NJAC was struck down on the pretext of independence of the judiciary as it was allegedly seen as an attack from the Executive on Judicial Independence. Never to mention, Supreme Court has unpreceded success in recent times also in this mission of theirs.
But the question still stands tall, ‘is our judiciary independent?’ and the answer would be 'from external elements most probably yes' but what about independence from within? Where is rule of law within apex court? Does it work like every other institution in a democratic nation is supposed to work? Well, I am afraid the answer to the above-posed question is very unsettling. The working of Indian Supreme Court has been widely questioned and criticized in light of recent events that took place in Apex Court which has turned out to be the blind spot in face of our democratic setup.
The recent judgment of Supreme Court in CJAR v. Union of India (2017) in which court opined that ‘Chief Justice is the master of the rooster and he alone has the prerogative in constituting constitutional benches’ annulling an order of division bench which constituted a Constitutional bench of five senior-most judges of the Court humiliating the bench that passed the order. Also, turning down the request of the petitioner in the present case that CJI does not deal with present petition neither in judicial capacity nor in the administrative capacity, he dealt with the petition on both sides. Is Chief justice of India above law? How can anyone in such a sacred institution have absolute, unguided, and arbitrary power? These are only questions but there is no answer coming from court with judiciary hitting a new low every day. As it seems, Hon’ble CJI has forgotten their accountability toward the people of the country whom he is serving.
Recently a number of important matters have been adjudicated by/ pending adjudication before the Constitution bench of Supreme Court. In all these benches a depressing trend can be observed where only a handful of selected SC judges are part of these important constitutional benches. Senior judges like Jasti Chelameswar, Ranjan Gogoi and Madan Lokur have been completely & constantly ignored not being made part of nearly any Constitution bench constituted under the tenure of present CJI. What can be the reason for such ignorance? Either God or Hon'ble Mr. Justice Mishra himself knows answer to this question as these are some of the most celebrated and learned judges of Supreme Court. It all indicates towards forming of fractions within the apex court, which in itself is not a problem but now these fractions are so apparent that someone can hardly ignore it which is a huge setback to the credibility of Apex Court. Now if in the light of above judgment of SC present scenario is considered then nothing can be done about it because that is what ‘king’ wants.
Although the phrase goes as ‘be you ever so high, the law is above you’ but in the case of Indian SC it is modified into ‘be you ever so high, CJI is above you’. If such arbitrariness exists in the temple of justice then common people cannot be expected to show faith in such institution which is actually happening, Olympus is crumbling. After all, CJI is also a man and like all other men, he is not infallible and such power and prerogative invested in one individual will lead to the destruction of a highly respected institution.
Chief Justice of India or for that reason any other person cannot be made a repository of such unchecked and unadulterated power otherwise the end is inevitable. Much can be drawn from the speech of B R Ambedkar in Constituent Assembly while our constituent was being drafted in which he stated:
"chief justice no doubt is a very eminent, person. But after all the chief justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have"
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