Where is the sentinel guarding our rights?

Where is the sentinel guarding our rights?

Context

• This article talks about the need for the Supreme Court to re-address its role assigned under the Constitution as “sentinel on the qui vive’.

What is “sentinel on the qui vive”?

•“sentinel on the qui vive” means the watchful guardian of fundamental rights.

Issues

With regard to the exercise of power:

• Since the assumption of office by Chief Justice J.S. Khehar in 2017, the Court has increasingly drawn the attention of the public for its repeated failures. Successive Chief Justices have failed to stop the decline of the Court.
• Allegations have been made against the Chief Justice of India, stating that the decisions in some of the most important matters affecting the nation, the Constitution, democracy, and the people and their fundamental rights have been taken in favour of the executive.
• With the Court upholding the Chief Justice as ‘Master of the Roster’, in a debatable judgment in 2018, Chief Justices have used their powers to constitute Benches and allocate cases to such Benches in a highly selective manner, defeating the fundamental principle of the rule of law.
• While the Chief Justice must be the administrative head, he must exercise his powers in a fair and just manner.
• He must not constitute Benches and allocate cases to those Benches in a manner which tilts the balance in favour of the executive.

Disturbing events:

• Former Arunachal Pradesh Chief Minister Kalikho Pul’s suicide note carried serious allegations against “two senior-most judges” of the Supreme Court.
• The inquiry on the same issue was stopped by Chief Justice J.S. Khehar and his colleagues. The same Court declined to order any inquiry into the demise of judge B.S. Loya, thereby failing to reassure the subordinate judiciary that it stands with it.
• The fact that Chief Justice Dipak Misra presided over the Constitution Bench hearing matters related to the medical college scam, despite the FIR naming unknown persons including constitutional functionaries of misconduct, perhaps weakened his authority. Subsequently, many including retired judges have been charge-sheeted in that case.
• The case of sexual harassment charge against Chief Justice Ranjan Gogoi was another case where the entire judiciary and executive demonstrated their high-handedness.

The functioning of the Court during COVID-19:

• Since the lockdown, the Supreme Court has cut short its functioning. Despite repeated requests from the Bar, virtual hearings have not improved.
• While the High Courts have been using better systems, the Supreme Court persists on using a system that does not allow all the judges to sit every day. As a result, generally, seven-eight Benches sit every day as against 13-15 which can be constituted by the master of the roster.
• It has been argued that the working of the Court is far from satisfactory although the Court claims that a sufficient number of matters are being heard.
• The constitution of benches and allocation of matters even under the present dispensation continue to be subjective.
• Senior judges are not assigned PIL matters and almost all matters raising important issues in respect of acts of commissions and omissions by the executive have been allocated to Benches constituted by the Chief Justice.

Way forward:

• In its own words, the Supreme Court has been assigned the role of a “sentinel on the qui vive” as regards fundamental rights.
• The courts exercise the power of judicial review under Articles 226, 32 and 136 of the Constitution of India Act as a “sentinel on the qui vive.” (Padma Vs. Hiralal Motilal Desarda and Others (2002))
• The right to get redress from the Court is itself a fundamental right, and the Court cannot abandon its own duty in this regard.
• The Court needs to re-address its role assigned under the Constitution.