Friday, August 17, 2018 Last Updated 54 Min 33 Sec ago Malayalam Edition
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Dr. Abraham Chettissery
Dr. Abraham Chettissery
Saturday 13 Jan 2018 03.05 PM

Culpa paena par esto (Let the punishment be in proportion to the crime)

An independent and strong judiciary is the basic feature of the Constitution. People are faced with an extraordinary situation where the judiciary is being marginalized from within, not from outside according to observers. It is important for this institution to ensure that an impression is not given to the public that the constitution of benches and allocation of matters is being done in a manner more palatable to the executive.
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An independent and impartial judiciary is an inevitable hallmark of Democracy. We are now faced with an extraordinary situation where the judiciary is being marginalized from within, not from outside that is, really speaking, the controversy created. It is important for this institution to ensure that an impression is not given to the public that the constitution of benches and allocation of matters is being done in a manner more palatable to the executive. The Union Government is the single biggest litigant before the Supreme Court. Citizens are entitled to expect free and fair administration of justice.

justice is, no doubt, an action in accordance with the requirements of law. Justice is inherent in nature itself as held by certain jurists. Still others believe that justice consists of rules common to all humanity that emerge out of some sort of consensus. Hence it has been asserted that justice is often thought of as something higher than a society's legal system. All other actions contrary to these basic and fundamental principles of jurisprudence are termed as "unjust or injustice" before the eyes of a man of justice.
It is universally accepted that justice is fairness. It is action that pays due regard to the proper interests, property, rights and safety of the seekers of justice. This being the great reality in law, the responses of the four senior judges of the Supreme towards the decisions being taken by the Chief Justice have stunned the general public that has ultimately highlighted and questioned certain “uncertainties and practices which do not accede to usual conventions and precedents. Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph expressed their concerns over the issues they are facing before the media and declared that they were discharging their duties to the nation. Their act has been described from certain corners as unprecedented move whether it is justifiable or not. However, four senior judges of the Supreme Court have launched a virtual revolt against Chief Justice of India Dipak Misra, pointing out a litany of problems that they said are plaguing the country’s highest court and warned they could destroy Indian democracy. It must be viewed very seriously since “there is no smoke without fire”. All judges of the Supreme Court have equal rights and “say” except administration of justice that is initiated by the Chief Justice being the head, but it does not mean that he can do anything as is pleased by him by ignoring the decisions and expert opinions of other judges, especially of the collegium comprising of the four senior judges and the Chief Justice.

The principles of justice and fairness can be thought of as rules of fair play for issues of social justice. According to the four of the senior most judges of the Supreme Court, there was an immediate need to preserve the judiciary system in the country in order to protect the democracy.
As an unprecedented development, the acts of the four Senior most judges of the Supreme Court have far reaching consequences for the values that we uphold sacred; safeguarding democracy and preserving the independence and impartiality of the Indian Judiciary.
The senior Judges have specifically pointed out two issues such as (i) The long silence of the Government of India to the Memorandum of Procedure that was finalized by the Supreme Court and (ii) the assignment of cases in the Supreme Court to what is described as “selectively to the benches of their preference without any rational basis for such assignment”.

The senior Judges referred to the Public Interest Litigation concerning the death of Judge Loya, which his family members believe was under suspicious circumstances. Since it is a very serious allegation connected with the case of Amit Shah, the President of BJP, the final decision with regard to hearing the case had to be taken amicably without hurting the senior judges.

The Court at the apex is the only hope and ray of light to millions of people who knock on the door of justice, but the laymen have started observing and looking at the movements of the judges with suspicious eyes due to the allegation against the former Chief Justice Mr. K.G. Balakrishan was raised.

However, it is the high time to appeal the Full Court of the Supreme Court to take up the issues raised by the four Honourable Judges and find permanent and amicable solutions which are consistent with the traditions and conventions of the Judiciary. As regard to the Public Interest Litigation concerning the death of Judge Loya, the matter must be entrusted to the Senior most Judges of the Supreme Court for a fair, independent and impartial conduct of the case.
The judicial powers being exercised by the Chief Justice of India to constitute benches and allocate cases must be above suspicion.
The Constitution is the suprema lex for this country, hence the supremacy of the Constitution is among the basic features of the Constitution of India. As such it has to be protected by the authority of an independent judicial body at any cost and risk.

The Chief Justice is deemed to be the master of the roster and he alone has the prerogative to constitute the Benches of the Court and allocate cases to the Benches so constituted. But it does not mean that he can act as a despot of judiciary. On the contrary, all his acts must be transparent among his colleagues. It should be realized that he is as much bound by the Rule of Law as anybody else. If there is one principle firmly rooted in our constitutionalism, it is: “Be you ever so high, law is above you.”

Despite it has been criticized from various corners of social activists and lawyers that the Chief Justice is exercising his powers in an opacity and turbidity. They say that the Constitution Benches are constituted by including certain judges and excluding certain others. But the fact remains that senior judges and even judges known for their proficiency in certain branches of law are excluded from such benches. It is one of the allegations raised.
It is a settled convention that benches are constituted by the Chief Justice considering the previous orders and it is rare to exclude from them the judges who had heard the matter earlier and are still available. But the recent trend shows that the Chief Justice appears to be allocating cases on a selective basis as opined by legal experts.

An independent and strong judiciary is the basic feature of the Constitution. People are faced with an extraordinary situation where the judiciary is being marginalized from within, not from outside according to observers. It is important for this institution to ensure that an impression is not given to the public that the constitution of benches and allocation of matters is being done in a manner more palatable to the executive. Government is the single biggest litigant before the Supreme Court. Citizens always, especially under situations, expect free and fair administration of justice. Independent and impartial judiciary is the collective responsibility of all the judges, whether they are junior or senior. Let us hope that the sacred lamp of justice being lighted will assure glittering light of for all the citizens of India beyond any shadow of suspicion.

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Dr. Abraham Chettissery
Dr. Abraham Chettissery
Saturday 13 Jan 2018 03.05 PM
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