Analysis

Judiciary is competent to stand against all odds

Jivesh Jha 

Jivesh

In developing countries, the judiciary occupies god-like faith. People approach the court with a belief that the bar will succeed to convince the judicial minds of the bench and they would secure justice, even if it’s delayed.

The confidence in judicial department rests on the premise that the court itself is not corrupt and that it is beyond the reach of nepotism, favouritism, or bias and is dispenser of justice. While issuing a press release on July 27, the Supreme Court (SC) of Nepal said that the dissemination of misleading news and comments about the court’s verdicts and judicial proceedings may lead to erosion of people’s faith in judiciary. Yet, the people have a right to make fair criticism against a court’s ruling.

The press note of the SC comes at a time when people from various quarters opposed the recent decision of the topmost court to commute life sentence of a murder convict, former Armed Police Force (APF) DIG Ranjan Koirala, to eight-and-a-half years. However, the full bench of justices Bam Kumar Shrestha, Prakash Kumar Dhungana and Kumar Regmi on July 26 granted leave for judicial review to the Office of the Attorney General.  This way, the case is sub-judice. The SC in its press release further said that people should refrain from making opinion in a manner that could bring adverse impact in adjudicating a sub-judice case.

Precisely, the superfluous comments on a verdict could erode the public trust on judiciary. Established constitutional principles, legal and judicial remedies could be taken as a resort to correct any mistake that might have occurred during the proceeding of a case. Globally, judiciary has helped democracy flourish despite repeated failures of other organs of the state. Nepal’s higher judicature has also played an instrumental role in broadening the horizons of fundamental rights.

The established constitutional principles, legal and judicial remedies could be taken as a resort to correct any mistake that might have occurred during the proceeding of a case. Globally, judiciary has helped democracy flourish despite repeated failures of other organs of the state.

Though judiciary does not deserve to take risk of being questioned for its pronouncements, the Indian experience suggests that the judiciary itself is competent enough to reclaim public trust and sideline any political or non-political intervention.

Tough times for Indian judiciary

Before 1993, the President’s power to appoint the judges was purely of a formal nature, for, he would act in this matter, as in other matters, on the aid and advice of ministers concerned, viz., the Law Minister. In this way, the ultimate power to appoint the judges of the SC was vested in the executive, which was not bound to pay a heed to the opinion of the Chief Justice of India (CJI). In 1958, the Law Commission of India had criticized the practice of appointing senior-most judge of the SC as CJI and opined that the CJI should be an experienced judge and competent administrator and his succession should not be regulated by mere seniority.

In this effect, on April 25, 1973 (a day after the delivery of judgment of popular case of Keshvanand Bharati v. State of Kerala), the  Indira Gandhi-led government departing from previous conventions appointed justice AN Ray as CJI while superseding three of the senior-most judges (who had decided against the government of the day). Justice Ray had decided three major cases—though in dissenting—namely Bank Nationalization case, Privy Purse case, and Keshvanand Bharati case in favour of the government. This raised a hue and cry in the Republic at a time when Indira Gandhi was acting in a fashion that could canvass “(in)famous” message: “Indira is India, India is Indira”.

Again in 1976, Indira Gandhi government appointed Justice Beg as the CJI, bypassing Justice HR Khanna who was senior to Mr Beg at that time. Consequently, Justice Khanna resigned in protest. After retirement of Chief Justice Beg, there is a well-established practise since 1978: the senior-most judge of the SC shall always be appointed as the CJI.

These unwelcome incidents led to the famous case of Supreme Court Advocate on Record Association v Union of India (1993) which laid down guidelines governing appointments and transfer of judges. The SC for the first time held that the President would be bound by the advice of the CJI. Also, it has been held that there would be a 3-member “Collegiums”, including CJI plus two senior-most judges, to recommend the names of judges for higher judiciary. The SC also confirmed that the senior-most judge of the Supreme Court shall always be appointed as CJI. Thus, it succeeded to frustrate the scope of political intervention in the appointment of judges.

Similarly, in Presidential reference case (1999), the 9-judge bench of SC held that the CJI would consult collegiums of four senior-most judges of the SC and it has been made clear that if two judges give adverse opinion, then CJI would not be competent to send the same recommendation to the President. It means the CJI does not act in person but with the consultation of four senior-most judges. In doing so, the SC succeeded to curb government’s monopoly in appointing the judges and made the “Consultation process” more democratic and transparent. In case of appointment of judges in High Courts, the chief justice of the concerned court along with the five-member collegiums of SC play pivotal role in recommending the names of judges.

Then, the disgruntled [Narendra Modi-led] government rushed to enforce the National Judicial Appointment Commission Act (NJAC), 2014 to ensure a say of the incumbent government in entire appointment and transfer the judges of higher judiciary. This attempt was in contrast to long stayed Collegiums system which is in place since 1993. After sensing that the provisions of NJAC Act has potential to welcome political intervention in one way or some other, the SC (in 2015) held the entire Act as unconstitutional.

Robust self-accountability of the Indian judiciary helped it to sabotage outward intervention.

This way, the robust self-accountability of the Indian judiciary helped it to sabotage outward intervention.  In United States (US), the constitution empowers the Supreme Court to consider only the matters relating to question of law or matters in want of Constitutional interpretation. However, judicial review is regarded as the potent weapon in the hands of judiciary to establish the supremacy of the constitution.

Understandingly, judicial review is the procedure established in Britain where the courts have been conferred power to supervise the exercise of public power. In the US, the SC can set aside any order (of the court) or action (of the administrative authority) that intends to contravene with the ‘due process’ clause of the constitution [Griffin v Illinois, 1956 US SC].

In India, judicial review is regarded as the basic structure of the constitution, held the SC in the landmark case of L Chandra Kumar v Union of India (1997).

judiciary

Unambiguously, an independent judiciary facilitates the rule of constitution. It means the supremacy of constitution can only be maintained when the judicial department is given an inherent duty to decide what the law is. While authoring the judgment in the world famous case of Marbury v. Madison (1803), Chief Justice Marshall observed that the ‘Constitution of US is supreme law of land’ and it’s the task of judiciary to declare what the law is. In the similar vein, Article 1 of the Constitution of Nepal envisages that all the laws inconsistent to 2015 Constitution shall, to the extent of such inconsistency, be void. This provision clarifies—in one way or some other—that the Constitution is supreme in Nepal like US and India but unlike England where parliament is supreme.

Over and above this, there must be continuing efforts to assure the nation that a truly independent judiciary can exist in a democracy which could not be sabotaged at any pretext.

In a bid to canvass constitutionalism, the judicial independency is a must. Justice HR Khanna himself in his autobiography Neither Rose, nor Thorns mentioned that if there are three prime requisites for the rule of law, they are: strong bar, independent judiciary and enlightened public opinion. Justice Khanna further argued that there can be no greater indication of decay in the rule of law than a docile bar, a subservient judiciary, and a society with a choked or coarsened conscience. The learned justice was right in saying that enlightened public opinion, not unfair criticism, is a pillar of rule of law.

The constitutional scheme aims to secure an independent judiciary which is the bulwark of democracy. Above all this, the important thing is that in a democracy, to solve the problem of backlog of cases pending in courts, the solution is to expand the horizon of judicial system in multiple ways in order to adjust pace with the needs and aspirations of society.  Unfair criticism against the verdict would neither foster healthy adjudication process, nor will it garner justice. Yet, the judiciary, in itself, is competent enough to stand against odds and emerge as a vibrant distributor of justice.

The author holds an LLM (Constitutional Law) and is a Judicial Officer with Birgunj High Court.

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Published 28 July 2020

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