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EDITORIAL ANALYSIS : Politics and ideology within the portals of the judiciary

 

Source: The Hindu

 

  • Prelims: Supreme Court, collegium system, NJAC, CJI etc
  • Mains GS Paper I and II: Structure, organization and functioning of judiciary, Issues with the collegium system etc

ARTICLE HIGHLIGHTS

  • Judge Paul Leahy-“A judge is a lawyer who is a politician who has a friend,”.

 

INSIGHTS ON THE ISSUE

Context

Collegium system:

  • It is the system of appointment and transfer of judges that has evolved through judgments of the SC.
  • The SC collegium: It is headed by the CJI and comprises four other senior most judges of the court.
  • HC Collegium: It is led by its Chief Justice and two other senior most judges of that court.
  • Ordinarily case:
    • one of the four senior-most puisne Judges of the Supreme Court would succeed the Chief Justice of India
  • Situational: If the situation is such that the successor Chief Justice is not one of the four senior-most puisne Judges, he must invariably be made part of the collegium.

 

Issues with Collegium system:

  • Extra-constitutional or non-constitutional body: brought in force by judgments of the Supreme Court.
  • Non-Judge: There is no seat in the collegium for any non judge neither from the executive, the Bar etc.
  • Opaqueness: lack of transparency.
  • Nepotism: Scope for nepotism.
  • Overlooks talent: Overlooks several talented junior judges and advocates.

 

Why is the Supreme Court of India a political court?

  • It is the final arbiter of political disputes.
  • The political and ideological positions of judges may influence their judgments(At Least on contentious political questions).
  • Philosopher-jurist Upendra Baxi:“It is a center of political power because it can influence the agenda of political action, control over which is what power politics is in reality all about”.
  • The Court is routinely drawn into the politics of the establishment as well as the politics of the Opposition.
  • The court can be used for purely party political ends in certain situations beyond the control of the Court”.

 

Evidence as judgments and appointments.

  • The Hindutva judgment (1996)
  • ADM Jabalpur (1976) to the Indira Gandhi government.
  • R. Bommai (1994) that had upheld the dismissal of the governments in Madhya Pradesh, Rajasthan and Himachal Pradesh.
    • On the ground of secularism as the basic structure.
  • The Rafale verdict in 2018 which came before the general election in 2019
  • The final judgment in the Ayodhya case (2019) had huge political significance.
  • Pegasus order (2021) of the Chief Justice of India (CJI) on constituting an independent probe
  • The upholding of reservation for the economically weaker sections reservation (2022) amendment
  • Demonetisation (2023) spelt major political victories for the government.
  • The ongoing Shiv Sena case too has political implications.

 

Politically sensitive cases that have not yet been heard:

  • Challenges to the electoral bonds scheme
  • Citizenship (Amendment) Act
  • Dilution of Article 370.

 

Instances of Public Interest Litigation(PIL) with political motive:

  • Changing names of over a 1,000 places
  • Uniform divorce law
  • Anti-conversion laws
  • Love jihad
  • Women’s entry in mosques

 

Examples of Judges with ideology(with left, centrist and right ideological leanings):

  • The left-leading Justice V.R. Krishna Iyer was a Minister in the communist government in Kerala.
  • Justice Baharul Islam was an elected member of the Rajya Sabha representing the Congress.
  • CJI Subba Rao was the Opposition candidate in a presidential election.
  • Justice Guman Mal Lodha had rightist leanings
  • Justice K.S. Hegde became Speaker in the Janata government.
  • Justice Vijay Bahuguna was Chief Minister of Uttarakhand.

 

Appointment of judges by overruling judiciary:

  • Justice M.H. Beg:was appointed on the directions of Prime Minister Indira Gandhi overruling CJI Sikri’s opposition.
  • Justice D.G. Palekar was appointed because of close proximity with then Law Minister
  • Justice S.N. Dwivedi was related to H.N. Bahuguna.
  • CJI Sikri had serious reservations about Justice Dwivedi’s elevation.

 

Independent judgements:

  • In Champakam Dorairajan (1951), the reservation policy of Madras was struck down by the majority of 7:0.
  • In I.C. Golaknath (1967), the Supreme Court denied Parliament the power to amend the Constitution and held fundamental rights to be the primordial rights necessary for the development of the human personality.
  • In R.C. Cooper (1970), the top court (10:1) struck down the historic bank nationalization decision
  • Maharajadhiraja Madhav Rao Scindia (1971), abolition of privy purses was also struck down by a 9:2 majority
  • Kesavananda Bharati (1973), the basic structure theory was propounded to restrict and limit Parliament’s power to amend the Constitution.
  • Raj Narain (1975), where Justice Jagmohan Lal Sinha had struck down the Prime Minister’s election.
  • During the Emergency: Nine High Courts had upheld the right to habeas corpus against illegal detention.

 

Way Forward

  • Many government-appointed judges were able to assert their independence; barring a few exceptions, they have been quite impressive.
  • The collegium system has not drastically improved the situation as the government continues to have the final word in the judicial appointments.
  • It is better to include the Union Law Minister in the collegium (just as in several other countries) so that his views are heard and his reservations discussed threadbare.
    • If the other five judges (CJI plus four judges) are not convinced, decisions can be made by the majority
    • The government being party to the deliberations and recommendations would have to accept collegium’s recommendations.
  • The goal should be to end the supersession, cherry picking of judges and making the process more transparent.

 

QUESTION FOR PRACTICE

Critically examine the Supreme Court’s judgment on ‘National Judicial Appointments Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India.(UPSC 2017) (200 WORDS, 10 MARKS)