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Hanzala Aman

The Road Not Taken: Judiciary at the Cross Road

While opposition’s impeachment move against the Chief Justice of India Dipak Mishra clearly seemed vindictive, Vice President Vankaiya Naidu’s extraordinary abuse of his official power in rejecting the move clearly showed that the opposition’s claim might not have been without substance. Justice Loya’s death did infact warrant an investigation if only to restore the faith in Judiciary. “Justice should not only be done but it should also appear to have been done.” As a famous quote goes. This January four senior Supreme Court judges, including Justices J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph, had cautioned about the court’s integrity and the country’s democracy. They said that assignment of important cases to various benches was being done by the CJI Mishra according to certain preferences. Assigning Justice Loya’s case to a smaller bench was a part of that move. They feared for the independence of the court and had said that “unless this institution is preserved, democracy can’t be protected in this country”.

Appointment of Justice K.M. Joseph to the Supreme Court has come up as a test to prove whether Judiciary remains independent of political effects or not. Justice Joseph’s name was recommended by the collegium on January 10th this year along with that of Justice Indu Malhotra. The Law Ministry cleverly turned down the appointment of Justice Joseph asking the collegium to reconsider its decision. CJI Mishra’s statement regarding the event terming it “well within government’s right”, would have been taken as independent of political influence only if “postponing” the appointment of Justice K. N. Joseph was not a matter of political vindication. Justice K.M. Joseph was a member of two judges’ bench which had restored the Harish Rawat government after the centre had imposed emergency in April 2016. The judgement came as a huge blow to the BJP government at the centre. In the recent past too, similar interventions by the executive can be seen in the non-appointment of former solicitor general, Gopal Subramanium as a judge of the Supreme Court, the transfer of Justice Rajiv Shakdher, that of Justice Abhay Mahadeo Thipsay, and that of Justice Jayant Patel, after which he resigned.

All these cases will surely have a dangerous precedent not only for the Judiciary but for democracy at large. Being a pillar of democracy, Judiciary cannot afford to be weak and fragile, because if it is not democracy, sooner or later, will surely fall down crushing perhaps millions in its debris. It is useless to repeat the importance of Judiciary for a healthy democracy again and again. If the Chief Justice has to go in history as a Chief defender of Justice, it is his onus to stand with the collegium to reiterate the recommendation of Justice K M Joseph’s appointment. It is in fact “The Road not taken” moment for him and it will do well for him to know that his stance will both be and not be about individualism and rationalization.


Hanzala Aman is a columnist writing for HW News Network.  The views, opinions, positions or strategies expressed by the authors and those providing comments are theirs alone and do not necessarily reflect the views, opinions, positions or strategies of HW News Network or any employee thereof. HW News Network makes no representations as to accuracy, completeness, correctness, suitability, or validity of any information on this site and will not be liable for any errors, omissions, or delays in this information or any losses, injuries, or damages arising from its display or use.

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