Recent events involving the SC and a HC judge has made a total mockery of the Indian Judicial System. It makes me wonder if the Collegium System has inherent flaws in it. Have we given too much power and independence to the judiciary? Is the judiciary above law? Is the judiciary above the mandate of the masses? Should the government bring back the defunct NJAC to rein in errant judges? Should such judges be impeached sans the elaborate process mentioned in the constitution?
What are your views of this topic?
Comments
The issue at hand is twofold.
1. Contempt of court.
2. Heirarchy in judiciary.
There can be a debate on how to make the whole issue of contempt of court a fair game. Most importantly who should decide the case of contempt of court when the involved party is judicial officer itself. I personally feel that the same court deciding the sentence on contempt is kind of against the principles of natural justice. Perhaps a third party jury should decide these cases, just a personal opinion though as I am no expert in this.
There is ambiguity in the heirarchy of officials in judiciary. Even though supreme Court can exercise jurisdiction over high court, there's no document which says that judges of high court are subordinates to judges of supreme Court. This is the real cause of current conflict. Both the parties have exercised their judicial powers. If there was a clear definition of heirarchy, perhaps this situation wouldn't have arised.
The executive is a fix because they have to follow the orders of both the judges. In that case, legally speaking, both of parties have to land behind the bars according to the sentences.
Classic case for the legislature to step in immediately and define proper heirarchy in the judiciary.
As long as the heirarchy doesn't distort the basic structure, legislature can definitely solve this issue.
So I believe, the Hierarchy is inherent.
Also, can a judge of a high court exercise his jurisdiction outside the territory of a state?
Heirarchy brings in the factor of subordination in definite sense which isn't the case here.
And yes, there are provisions under which High court can exercise it jurisdiction beyond the physical frontiers of it's home state.
Justice karnan exercised suo Motu cognizance to sentence cji and other 7 SC judges for violation of under SC/st atrocities act.
If there was defined heirarchy then justice karnan's sentence would have been cited as null and void for insubordination, but as you are aware his sentence currently holds legal authority.
1.)- is this issue of an errant high court judge, a result of malfunctioning collegium system , such that it needs to be overhauled by including the executive in the process of appointment of judges?
- or
- there needs to be separate intra judiciary system of regulation of judges' behaviour ?
( why legislature hasn't stepped into this issue by initiating a motion of impeachment is also a point to ponder)
2.) Should media be gagged like this, thus depriving one party to the conflict , of its right to be heard. ?
The court is always hunting down legislature for slightest of things. But legislature never actively does the same to keep sanity in judiciary maintained.
Our representatives are more involved in stalling things rather than solving issues. Majority of them are at best politicians and not legislators imho.
"The high courts of India are not subordinate to the Supreme Court in India as we follow a federal system. In judicial sense of term, the high courts function independently. But, still the apex court is supreme and the judgment is likely to prevent other judges from treading the path what Justice Karnan chose"
This happened because of no heirarchy,
"There is no certain mechanism to discipline a judge, who refuses to obey the orders of higher court of law. The Supreme Court ordered for medical examination of Justice Karnan which he refused to undergo. The police came back empty hand. So, the authority of the Supreme Court takes a beating"
http://indiatoday.intoday.in/story/justice-karnan-conviction-supreme-court-calcutta-high-court/1/949733.html
Also, SC could convict karnan only because he wasnt eligible for impunity against civil or criminal proceedings granted for a sitting judge while carrying any work in his official capacity. Here, Justice karnan had committed the contempt in his personal capacity by writing a letter to the PM raising allegations of corruption.
CJI and Other judges got impunity because they were sentenced for an act carried out in their official capacity.
Or did he try to transcend the "due process" by issuing NBW directly?
He just a wrote a letter to the PM alleging things without any evidence.
This may throw some light for you.
http://indiatoday.intoday.in/story/justice-cs-karnan-calcutta-high-court-supreme-court/1/943019.html