Leave Judiciary Alone?

Our polity and our Constitution have given our elected legislators unfettered powers to enact laws for the country. However, the judiciary has the power to strike down any bad law that violates the Constitution or goes against the principles of natural justice or simply because it is a bad law ensuring more injustice than justice. And once a law is struck down by the Supreme Court, there is precious little that the Legislature can do about it except to enact a new law. This is certainly a very desirable bit of check and balance in a democracy like ours where we have lawmakers endorsing laws that they often do not understand because of the level of their education or because there is such a liberal sprinkling of criminals who are elected lawmakers who want bad laws that serve the vested interest of our underworld and protect criminals. Were it not for the Supreme Court, such laws would have remained in force for years. Take, for instance, the black law called the Illegal Migrants (Determination by Tribunals) Act of 1983 that survived for 22 years and did incalculable harm to the State of Assam and that would have remained unto perpetuity had it not been struck down by the Supreme Court.

However, there is the question of the image of the Judiciary that must never be lost sight of. It has been said too often — and with good reason – that justice must not only be done but must also seem to have been done. That apart, the actions of those in the Judiciary (not just the judges) must be such as to put the Judiciary above suspicion. But there has lately been a move within the Judiciary that could well result in the motives of the Judiciary being questioned by all and sundry. This relates to an appeal made by SC Agarwal to the Supreme Court registry, under the provisions of the Right to Information (RTI) Act, to make public documents on the appointment of three judges, superseding other senior chief justices. On this information being denied, Agarwal approached the Central Information Commission (CIC) which ruled on November 25 that “recommendation of appointment of justices is decidedly a public activity conducted in the overriding public interest” and issued an order directing the Supreme Court registry to make public the documents sought on the appointments of the three judges superseding other senior chief justices. A division bench of the apex court comprising Justices B Sudershan Reddy and Deepak Verma stayed the order of the CIC on Friday. The bench accepted Attorney General GEVahanvati’s suggestion that the matter was of grave importance and posted the matter for hearing after five weeks.

The nation will eagerly wait to see what happens after five weeks. After all, an earlier appeal under the provisions of the RTI Act on the assets and liabilities of Supreme Court judges led to the assets and liabilities of the Supreme Court judges being put on the official Supreme Court website. This was a sequel to what the Supreme Court had said about the RTI Act: “There is no backtracking on right to information.” In fact, this is what one would like to hear again from the Supreme Court. However, Friday’s verdict, posting the matter for hearing after five weeks instead of directing the Supreme Court registry to part with the information sought, is likely to make people wonder whether the Supreme Court is indirectly implying that the Judiciary should be exempt from the provisions of the RTI Act, particularly in matters relating to the appointment of judges. Obviously, this cannot be what the Judiciary really wants, because when it talks of transparency and accountability, charity must begin at home. Otherwise we shall soon have people complaining that just as lawmakers want to remain above the law, judges too want to be immune from certain provisions of the law relating to matters like appointment even when there are cases of senior judges being superseded. THE SENTINEL