Bench ‘Hunting’ Continues To Hound Delivery Of Justice And Fairness

By K Raveendran

Even five years after the historical ‘national duty’ press conference by four judges alleging undesirable practices including ‘bench hunting’, the problem continues to be the bane of Indian judiciary. All the four judges have retired for long, but many of the problems they raised persist, undermining people’s faith in the system.

Bench hunting works both ways, sometimes in looking for pliable benches and at other times in avoiding judges or benches whose perceived independence can be detrimental for the interests of those who want judgments to go in a certain way. It was only the other day that Justice K M Joseph, hearing Gujarat riot rape victim Bilkis Bano’s petition challenging the remission of jail term of convicts by the state government, along with fellow judge B V Nagarathna, expressed anguish at the way the proceedings were sought to be thwarted on behalf of the convicts through what senior counsel Indira Jaising described as bamboozling tactics.

“It is apparent that the counsel appearing for the convicts do not want this hearing to take place. Every time the matter will be called up, one person or the other will come and say that he needs time to file a reply. It is more than obvious,” Justice Joseph said. “It is somewhat clear what is being attempted here. It is obvious, rather more than obvious, that you all do not want the hearing to be conducted by this bench,” the judge, whose last working day retiring on the 19th of this month before the court closes for summer vacation, said in frustration.

It was the bench headed by Justice Joseph that admitted Bilkis Bano’s petition, after the Supreme Court itself had rejected several other similar pleas challenging the remission of jail sentence of the convicts. The bench of Justices Joseph and Nagarathna issued notice to the Union government and the state government, calling for all the relevant files, but both governments failed to do that, saying they were planning to move a petition for reviewing the decision. But given that Justice Joseph is set to retire before the petition is taken to its logical conclusion, solicitor general Tushar Mehta informed the court that the records would be produced before the court.

Why the governments want to avoid Justice Joseph’s bench is quite obvious. He has been credited with several judgments of far-reaching political implications, including his 2016 ruling which struck down president’s rule in Uttarakhand and paved the way for Harish Rawat-led Congress government to come back to power. Justice K M Joseph’s rulings have set important precedents in a variety of areas, from constitutional law to civil liberties to environmental protection to human rights. His judgments have had a profound impact on the Indian legal system through his pattern-based judgments. His judgments have been characterized by a focus on the larger picture, rather than on the individual facts of a case. This approach has enabled him to make decisions that are more consistent with the principles of justice and fairness.

Justice Joseph’s strong stance on hate speech, calling it a ‘cancer’ that must be eradicated from society, will be considered a landmark in judicial activism. In a recent ruling, Justice Joseph declared that hate speech is a serious threat to the social fabric of our nation and that it must be addressed with utmost urgency and that the government must take steps to ensure that hate speech is not tolerated in any form. The ruling is particularly significant as hate speech is being increasingly used to incite hatred and violence against people based on their race, religion, gender, or other characteristics.

It is high time the Supreme Court addressed attempts by perpetrators to subvert due process of law by misusing the court’s leniency and rules of procedure to restore the faith and confidence of citizens in the country’s judiciary.  A case before the highest court of the land involving the possible trial of a serving chief minister has been continuously postponed for the 33rd time on one pretext or the other, raising serious doubts about the independence of judiciary. It is not enough that justice is done, it has to be seen to be done if the judiciary expects people to have faith in it.

While there is an obsession on the part of all concerned about the rights of the defendants, the same consideration is often denied to the victims, making the entire system lopsided. It is high time this aberration is corrected so that the highest judiciary performs the exalted role that people expect it to play in the interest of justice and fairness. (IPA Service)

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