Concerns with Powers of Chief Justice

What is the issue?

In India there are controversies over the power of chief justice in constitution of benches.

What are the powers of a Chief justice?

• SC -The judges of the Supreme Court and high courts are appointed by the president after consultation with the chief justice of India.
• The chief justice of High court is appointed by the president after consultation with the chief justice of India and the governor of the state concerned.
• The consultation with the chief justice is obligatory in the case of appointment of a judge other than chief justice.
• Thus the advice tendered by the chief justice of India is binding on the president in the matters of appointment of the judges of the SC.
• HC - For appointment of other judges the chief justice of the concerned high court is also consulted.

What are benches?

• In the US Supreme Court, there will be nine judges and all sit together and decide all the matters.
• Likewise in India high courts and the SC discharge their function through the benches.
• In India the members of the bench is usually appointed by the chief justice of the respective court, a chief justice can also present in the bench.
• The constitution of benches is an administrative matter and is a privilege of the chief justice as the administrative head of the court.
• Therefore in India Chief justice is the administrative head of the respective court, but not its judicial head.
• The justice delivered by CJ’s benches and other benches have equal weight and are equally binding.
• Both in the high courts and the SC for deciding matters involving constitutional disputes, a bench of no less than five judges should be constituted and the said bench should consist the senior-most judges.

What are the concerns in constituting the benches?

• Power abuse -The power to constitute the benches, also indirectly implies the power to shape justice and law.
• Few incidents claims that the power of CJ to constitute benches is liable to be abused.
• If a chief justice is so inclined, he may pack the benches by judges who will uphold a particular view.
• Autocracy -A chief justice of India (CJI) used to constitute benches to uphold his views expressed as a high court judge but overruled by the SC.
• Another CJI would instruct flexible colleagues to take particular views in the matter.
• By this the exercise of any power which has far reaching consequences has been left in the hands of one man, which has deleterious effects for democracy.

What measures needs to be taken?

• The power to constitute a bench must be shared with at least the next four senior-most judges, when political and sensitive cases are decided.
• Judges cannot be divided into senior and junior since all judges are equal, it must be understood that to sustain the confidence of the people in the judiciary, such a convention is warranted.
• Any judgment must appear to be the judgment of the court and not of one man or hand-picked men, which needs involvement of several judges.

Source: The Indian Express