First among equals President of India
The US Supreme Court itself sits en banc and is not, therefore, a suitable comparator, here. An alternative to convention dictating norms of case assignment is to have clearly defined rules, as is the case in Europe.
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The European Court of Human Rights, for example, has its Rules of the Court that set out how cases are to be allocated. Seniority and rotation or drawing of lots is the usual process. This process recognises that seniority bestows certain rights.
At the same time, the rules offer a neutral filter, because they create clear and accountable methods that spread the workload and minimise arbitrariness. The European Court of Justice also has elaborate rules, in similar fashion. It is clear that clear rules and convention are followed everywhere in administrative matters involving the court. These are scrupulously observed in order to preserve the integrity of the judiciary as an independent and fair institution.
An environment of trust envelops the entire process. In contrast, having, or claiming to have, unbridled power as master of the roster can be a dangerous thing. Take for example, a report prepared by a delegation of the International Bar Association, on judicial independence in Russia. To return to the Indian story, sadly,this is not the first time that allegations of lack of transparency and fairness in managing the roster have emerged over the past few months, spanning the tenure of multiple Chief Justices.
A letter written about a year ago to the CJI asked him to permit a probe into the suicide note written by the former Arunachal Pradesh Chief Minister, Kalikho Pul, who committed suicide in , after the Supreme Court restored the ousted Chief Minister, Nabam Tuki, to office.
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Without going into too many details about the case, which also included questions of conflict of interest, Pul had made certain allegations about sitting Supreme Court judges, including the sitting Chief Justice. The judgement also said that if the CJI thought that criminal proceedings should not be started, they had to be dropped, and if allegations were made against the CJI directly, then such permission may have to be sought from other Supreme Court judges. Luthra vs Union of India.
This case requires a little bit of context. In the light of this decision, RP Luthra petitioned the Delhi High Court arguing that appointments made after this December decision were null and void, pending the finalisation of the revised MoP. After failing at the High Court, he appealed to the Supreme Court. The four judges, in their letter to the Chief Justice, said that a two-judge bench could not have dealt with a matter that was already decided by a five-judge Constitution Bench, and that only a bench of similar strength could have considered the matter.
Besides the allocation of the case to a 2-judge bench, and the events that occurred thereafter, the MoP is going to be a crucial test for the office of the Chief Justice, whether it is this one or the next.
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Finally, there is the case involving multiple medical institutions that were originally barred by the Centre from admitting medical students following a report from the Medical Council of India that these institutions failed to meet required criteria. Subsequently, some of these institutions moved various courts, including the Supreme Court, and obtained orders to continue operations.
The criminal complaint in the corruption case alleged that a conspiracy was hatched by certain persons, including a former Odisha High Court judge and a hawala dealer, to allegedly bribe Allahabad High Court and Supreme Court judges who were hearing the case. Chief Justice Misra himself was leading the Bench which had heard and decided the case of one particular medical college in question.
The petitioner alleged that the Central Bureau of Investigation, or the CBI was likely to misuse the material, and judges could be brought under pressure, and asked that a Special Investigation Team be instituted to look into the matter. Justice Chelameswar, who was heading a two-judge bench hearing the petition, directed that it should be decided by a bench of five senior-most judges. In other words, it was declared that it is the prerogative of the Chief Justice of India to decide what case has to be heard by which judge. The petitions in question were assigned to other benches, and both were subsequently dismissed, with petitioners being slapped with a cost of Rs 25 lakhs for pursuing what the court termed frivolous and contemptuous litigation.
I would like to stress that I am not - in any way - suggesting that seniority should have been the criteria for allocation of cases, but the fact that all four of the top five judges of the Supreme Court, other than the Chief Justice, have been curiously kept out of all constitutional matters, is surely strange and something to be questioned. Surely it is the duty of every Chief Justice to aspire to protect fundamental features of the judiciary. There are robust practices that are followed in many High Courts in India itself, which can be used as examples.
For example, Chief Justices of High Courts normally decide benches in advance, taking into conscious consideration relevant factors such as the ability of the judges and their previous experience in handling certain kinds of subject matters. Division Benches are always headed by senior judges, and it will never happen that a senior judge is sitting in a roster of lower importance, while a junior judge heads a Division Bench.
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The objective of the Chief Justice, in managing the roster, is to strike a balance between disposal of cases, and maintaining the integrity and independence of the institution and the quality of justice that is meted out. What is to happen when a Chief Justice does not adhere to these principles? This opacity has not developed by circumstance, but is a pro-active construct of the judiciary itself, reaching its apogee, perhaps, in denying the application of the Right to Information Act to itself.
For many decades, the judiciary has hidden behind a mask of constitutionalism, defending its silence as an intrinsic feature of the its institutional integrity and role as a constitutional authority. But such a display of silence and integrity comes up short when it is at the cost of the rule of law, and principles of transparency and accountability. There is little that outsiders can do to persuade this arm of State to open up.
Ultimately, the desire to be transparent and follow principles of rule of law and natural justice must emerge from within the institution itself. That is what has happened with this press conference. The leaders of the Bar ought take more proactive steps towards pushing for reforms in the judiciary, especially in introducing transparency, in asking the judiciary to open up about allocation of work.
They can play a much greater role than they have played to date. I believe the Indian judiciary has much to learn from many places - from other courts of the world, or even from within the Indian judicial system itself. Whether it is developing a strong culture of trust and consultation like the English, or building a clear, transparent, seniority- and rules-based system of allocation like the Europeans, or avoiding the ad hoc-ism of Russia, we have a lot to learn and adopt and evolve for ourselves.
In a system that is built on the idea of the separation of powers, each branch of the state feels that it operates in perfect internal balance. Indeed, in India, the threat to judicial independence is most commonly seen as one emerging from the executive branch, and occasionally the legislature. Today, we have a situation which was foreseen many decades ago, by Chief Justice Y. Do not mistake all that I have said over this past hour or so as mere criticism.
Instead, you must realise that I am pointing to an opportunity that lies ahead for the judiciary. If anything must happen as a consequence of this unfortunate incident, it is reform. The judiciary needs immediate reform on multiple fronts. And surely, the time has come to do away with the collegium system, and relook at the opaque system that the judges have constructed for themselves.
And most certainly, this is an opportunity to introduce reform in the allocation of cases. The role played by the CJI as master of the roster should be more consultative process than it is today. A healthy balance of senior and junior judges is also desirable, as I discussed earlier.
They all enjoy immense powers in the courts, as their roles are structured today. It would be wonderful if the present CJI would take up these issues. In any case, Justice Gogoi has raised some of these questions, and if he is indeed next in line to the office of CJI, he must use his time to change these processes. India has been fortunate to count amongst its public intellectuals, women and men who have been fine lawyers and judges, who understand and appreciate the many facets and nuances of judicial independence, transparency and fairness.
In their hands, I know that the judiciary will not be allowed to implode or compromise on its integrity. In the hands of a probing and critical fourth estate, I know that the judiciary will be compelled to stand up and play its role as the upholder of constitutional values to its fullest and truest standard. In the hands of the people of India, I know that the judiciary will remain the most important and trustworthy institution this country has known in its modern history.
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A select list of articles that match your interests and tastes. Move smoothly between articles as our pages load instantly. A one-stop-shop for seeing the latest updates, and managing your preferences. He prompted a surprise diplomatic opening on Iran from Mr. Trump, even if both initiatives hit early headwinds on Tuesday. Macron missed no opportunity to wring every advantage from his role as host of the summit in the southern resort city of Biarritz. It gave him the perfect stage to pursue his ambition , both grandiose and self-serving, to position France, and himself, as candidates to fill the vacancy left by Mr.
With Mr. Trump deepening American isolation on major global issues, and Chancellor Angela Merkel of Germany on a glide path out of power, Mr. Macron has become the leading champion of European unity and multilateralism. Macron clearly wanted to use the Group of 7 forum to show the world that neither are dead letters. He also wanted to show off himself. Read more here. Macron organized the events to avoid the missteps that have produced undiplomatic outbursts from Mr. Trump in the past. His lunch with Mr.
But Mr. Macron said to reporters before leaving for Biarritz. In the context of global diplomacy, that means eschewing the threats, bullying and humiliation favored by Mr. Trump and what Mr. Tertrais said of the summit.