Court’s Drift and Chinks in the Judiciary’s Armour

Context:  Judiciary has been in the limelight due to 2 recent developments: the first was the decision of the Supreme Court of India in the matter of Prashant Bhusan's Contempt Casw and the second was the retirement of Arun Mishra.

The Bhushan case

• Supreme Court let off Mr Bhushan with a fine of one rupee in the contempt case against him over two tweets. 
• The jurisprudential contribution of this decision to the law of contempt will be studied for years to come,
• A wiser judicial and legislative community will realise one day how utterly self-defeating this law is for a healthy democracy and eventually change the law around.

Concerns with working of Judiciary: The Malaise within

• Moving away from rights-based Court to an executive court: Decisions are largely in favour of executive.

• For, E.g.  Commentators have conducted detailed analyses of Justice Arun Mishra’s decisions and found that these were predictably in favour of the executive.
• Justice Kurian Joseph suggested that the assignment of work in the Court during Justice Dipak Misra’s tenure was “remote-controlled”.

• The arbitrariness of “Master of the roster” system: It allows the  Chief Justice of India (CJI) to have unrestricted and untrammelled power in matters of case allocation. The problems with this system are:

• CJI himself being part of bench hearing matters to which he himself is a party. 

• For, E.g. During Justice Dipak Misra’s tenure, two judgments were delivered by the CJI’s Bench in matters to which he himself was a party. 

• Biasness in selection of judges

• The truly independent and competent judges in the Court have been relegated to adjudicating the private dispute.
• CJIs in the past entrusted sensitive and important matters to Benches involving judges who are reliable to the executive. 
• For, E.g. hearing of Justice Gogoi’s sexual harassment case included Justice Arun Mishra.

• Post-retirement opportunities: CJIs have, without compunction, accepted politically-coloured post-retirement opportunities

Alternative to “Master of the roster” system

• Legal certainty and a rules-based mechanism for allocation of cases: 

• For, E.g. as followed by the European Court of Justice and the European Court of Human Rights

• Cases can be allocated randomly

• No discretion can be allowed

Benefits of these Alternatives

• Prevent bench packing, and demonstrate neutrality, impartiality, and transparency
• Ensures that courts are protected from outside interference
• Improves public confidence in the impartiality and independence of the judiciary
• Assures litigants of equality and fairness.
• Protects basic rights and freedoms by not compromising on them.

Conclusion: An opaque ‘master of the roster’ system and a certain kind of judge are sufficient to destroy judicial independence