Article 14 of the Indian Constitution guarantees that all citizens are equal before law and are entitled to equal protection of law, but is this actually the case? Or are some citizens given special preference, while others are treated as suspect before they are ever even charged with a crime? Unfortunately, several recent events point to a troubling possibility that not all citizens are equal before the law, and even if the judiciary is independent of the elected government, it is not independent of certain unelected institutions.
In January, this year, for the first time in the constitutional history of Indian state, 4 senior most judges of the apex court of India held a press conference in which they mounted a virtual revolt against the Chief Justice of India by listing a litany of problems that they said are afflicting the countrys highest court and warned they could destroy Indian democracy. This press conference was a strike at the very root of the institutional integrity of higher judiciary. It raised question marks about the credibility of the system as such and directly casted aspersions at the head of the Indian judiciary. One of the bedrocks of a democracy is the existence of an independent judiciary and when the integrity of such an organ is questioned, it, for sure, becomes a matter of concern.
Also, a week ago, first time in judicial history of India, opposition parties of centre led by Congress moved the impeachment motion in the Rajya Sabha, seeking the removal of Chief Justice of India, Dipak Misra under Article 217 read with Article 124 (4) of the Constitution of India, under which, a Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity. It was eventually rejected by the Vice President of India on grounds of absence of credible and verifiable information.
The two main grounds on which a democratic state stands are, Rule of Law and Separation of Powers. Rule of law states that no one is above the law. The actions of all public officials are governed by the law and must be taken in accordance with the law and not in an arbitrary way. Their decisions must not be taken out of self-interest or because of a personal bias. Separation of Powers ensures that the organs of state should have independence from each other and that there should be a set of checks and balances between them in the way that their powers operate, so that none is too dominant. The independence of the Judiciary from the other two branches helps to ensure that the rule of law prevails.
Another question is, what reforms have been proposed to ensure better judicial accountability?
The Judges Inquiry Bill, 2006, based on the 195th Report of the Law Commission, sought to create a judicial forum to deal with complaints against judges with the establishment of the National Judicial Council, which was supposed to investigate charges of misbehavior. Four senior-most judges were to serve as its members, where impeachment was not warranted, warnings and advisories could be issued, and withdrawal of judicial work, asking a judge to voluntarily retire, and private or public admonition or censure were proposed as minor consequences. The Bill was criticized as the Constitution does not give Parliament power to create new punishments. Its powers under Article 124 are confined to regulating the investigation and proof of misbehavior. The Bill could not be passed as the then Opposition did not allow Parliament to function, and the UPA government failed to evolve a consensus.
There is a dire need of introspection and judicial accountability so that the bewildering paradox that has consummated the people is gone away for the good. In democracies with well-developed institutions, the political motivations must not infect the judicial process in a manner which erodes impartiality and even-handedness. One core component of the rule of law is the separation of law and politics. The judiciary always stands out as a beacon of hope and credibility.
A.V Dicey, who was one of the finest Jurists and Constitutional theorists has said, With us, no man is above the law and every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.—
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