Keys to Governance: Independence of Judiciary

Webinar in progress.

#judiciary

Former Editor-in-Chief of The Hindu, N Ram speaking.

Judiciary has to be called out when it is corrupt, arbitrary or subject to external influences.

People should be entitled to call out the judiciary just as four judges came out and did that press conference: N Ram

Was it contempt of court? Did it scandalise the court? Some people thought it did. But I applauded it.

The fetters on people to criticise judiciary should be removed which will indirectly strengthen judiciary: N Ram.

It is unfortunate that the movement for judicial accountability seems to have weakened greatly but we need to bring it back: N Ram

#judiciary #judicialaccountability

Tarunabh Khaitan, Vice Dean, Faculty of Law, University of Oxford is the next speaker.

We have had allegations in the past also against judges of lower courts. But allegations that judges of higher judiciary may have been compromised is a relatively recent phenomenon: Tarunabh Khaitan.

What can we do on willingness and capacity of Constitutional court judges to defend the Constitution? Tarunabh Khaitan

The Supreme Court's exceptional jurisdiction to consider appeals on special leave which is it's residual jurisdiction that the framers thought will be invoked once in a few years today occupies 85 percent of the Court's admission docket: Tarunabh Khaitan

This is not Constitutional defence. This is work that concerns whether your neighbour encroached your land, whether a company defaulted on loan rightly or wrongly. This is not the work the highest court of land should be spending most of the time doing: Tarunabh Khaitan.

It is shameful that the Supreme Court is willing to hear corporate dispute appeals while hundreds of Habeas Corpus writ petitions are pending: Tarunabh Khaitan.

A recent report shows that 99 percent of 600 Habeas Corpus petitions before Jammu & Kashmir High Court pending since August 2019 are still pending. This should be intolerable in any democracy: Tarunabh Khaitan.

The Supreme Court has to be internally divided and a Constitutional division has to be created to ring fence its Constitutional defence function from its appellate role: Tarunabh Khaitan.

The appellate role cannot be allowed to cannibalise it's Constitutional defence function: Tarunabh Khaitan.

On the willingness of the Court, we don't have direct evidence but we have a lot of allegations in the public domain. I will focus only on the structural reasons behind it: Tarunabh Khaitan.

There are 3 opportunities for external influence on a judge - before his/ her appointment, during the tenure and post-retirement. All three need attention to safeguard judicial independence: Tarunabh Khaitan

I will say very little on 'duringthe tenure of the judge' because that is what the Constitution focuses on and insulated the judge from political pressure during her tenure as the judge: Tarunabh Khaitan

Even then Constitution did not envisage all the problems that we are seeing. We clearly need to deal with Chief Justices arbitrary, unaccountable and opaque control over the Court's docket and registry where the CJ does not need to influence any judge: Tarunabh Khaitan

This is because the Chief Justice has the power to simply decide that a case will never come up before a particular bench. Vesting of that power in one individual is intolerable in a democracy: Tarunabh Khaitan.

For example, the Gauhati High Court declared the law that created CBI to be unconstitutional. The Supreme Court has stayed that judgment for years and years now and just refused to hear it: Tarunabh Khaitan

How can we ensure Judicial independence while including politicians in the process of appointments? The solution is not to vest it on govt alone but to involve the principle of weighted multi partisanship: Tarunabh Khaitan

It is the idea of entrusting political part of the appointment process with the largest political parties in the Parliament with equal say: Tarunabh Khaitan

So take the power out of ruling party and give it to recognised largest parties in different houses: Tarunabh Khaitan

Next speaker is Senior Advocate Menaka Guruswamy.

I don't believe that there is no good that comes out of Judicial system. I do think a judge on average is burdened and works hard: Menaka Guruswamy

In terms of virtual court, a parliamentary committee report of September 2020 notes that it has 3 pros: Menaka Guruswamy.

One is access to justice as people from far flung areas can access courts through video links and need not travel to says Delhi to appear in Supreme Court. Advocates can access in different courts on same day: Menaka Guruswamy

There are many disadvantages to virtual court system: One is infrastructural or access disadvantage and second is on Constitution's expectation of open court: Menaka Guruswamy.

While Delhi has 2.2 crore internet connections, Mumbai 1.5 crore, the complete north east region has only 4.3 lakh internet connections. That is just connectivity divide and the unequal access when we rely on technology: Dr. Menaka Guruswamy

The system of open court is a cardinal principle in ensuring judicial accountability and judicial independence and judicial integrity: Dr. Menaka Guruswamy

With unanticipated adoption of virtual courts, we have a bridge to increase the transparency of court by effectively putting in place a long term permanent mode of open streaming of court system: Dr. Menaka Guruswamy.

High Courts of Kerala and Bombay have already started live streaming of proceedings and Chief Justice's court of Gujarat High Court is doing that on YouTube: Dr. Menaka Guruswamy

Finally on the issue of virtual courts, the biggest criticism has been the issue of selectivity: Dr. Menaka Guruswamy

By selectivity, I mean there have been certain kinds of cases that have been rendered unheard. These include challenges to abrogation of Article 370, CAA etc: Dr. Menaka Guruswamy

There is technology in place to enable hearing of such cases which involve say 140 petitioners for instance in CAA matter. Modern technology does enable us to navigate these concerns: Dr. Menaka Guruswamy

Another point I want to talk about is Parliament not sitting. The last day India''s parliament had a recorded sitting was on September 23, 2020. So the winter session of Parliament has also been cancelled: Dr. Menaka Guruswamy.

Courts are functioning virtually, election rallies are being held physically. Hundreds of people are gathering but there is no effort to get Parliament to convene, virtually or otherwise: Dr. Menaka Guruswamy

Article 85 of Constitution says President shall from time to time summon each house of Parliament but six months shall not intervene between one sitting and the next. We are rapidly approaching the end of that timeline: Dr. Menaka Guruswamy