Indian Polity
Who Will Watch the Watchman
- 23 Apr 2019
- 7 min read
Recent turmoil in Supreme Court over a case of sexual harassment against Chief Justice of India reignited century old debate : a debate about Quis custodiet ipsos custodes i.e. who will watch the watchmen?
- In response to sexual misconduct allegations against him, CJI Ranjan Gogoi called for a special bench chaired by himself, which was in gross violation with the established legal principle: the principles of due process and natural justice.
- Due process for addressing complains of sexual harassment at workplace.
- In this case ideal due process could have been: the senior-most judge of the Supreme Court after the chief could have taken cognizance of the complaint, set up an independent internal complaints committee in accordance with existing law, and ensured that that committee was allowed to work free of fear or favour, and in a swift manner.
- Clearly, due process was not followed in this case.
- The natural justice premise.
- In the above case, Supreme Court constituted a bench headed by Chief Justice himself. Moreover, victim was not present and so was not heard. The concept of ‘Principles of Natural Justice’ contains the following two core points —
- Nemo in propria causa judex, esse debet i.e., no one should be made a judge in his/her own case, or the rule against bias.
- Audi alteram partem i.e., hear the other party, or the rule of fair hearing, or the rule that no one should be condemned unheard.
- In the above case, Supreme Court constituted a bench headed by Chief Justice himself. Moreover, victim was not present and so was not heard. The concept of ‘Principles of Natural Justice’ contains the following two core points —
- Principles of Natural Justice in Indian Constitution
- In The Constitution of India, nowhere the expression Natural Justice is used. However, the principle of natural justice can be found in Preamble, Art 14 and Art 21.
- Preamble: Preamble of the constitution includes the words, ‘Justice Social, Economic and political’ liberty of thought, belief, worship. And equality of status and of opportunity, which not only ensures fairness in social and economical activities of the people but also acts as shield to individuals liberty against the arbitrary action which is the base for principles of Natural Justice.
- Art 14: This Article guarantees equality before law and equal protection of law. It bars discrimination and prohibits both discriminatory laws and administrative action. Art 14 is now proving to be bulwark against any arbitrary or discriminatory state action. The horizons of equality as embodied in Art 14 have been expanding as a result of the judicial pronouncements and Art 14 has now come to have a highly activist magnitude. It laid down general proposition that all persons in similar circumstance shall be treated alike both in privileges and liabilities imposed.
- Art 21 and the principle of natural justice: With the Supreme Court pronouncement of “due process of Law “in Maneka Gandhi case(1978) , court asserted the principle of reasonableness while deciding a case. It now means that the procedure must satisfy certain requisites in the sense of being fair and reasonable. The procedure “cannot be arbitrary, unfair or unreasonable.
- Difference between Due process of law and Procedure established by the law:
Procedure established by the law | Due process of law |
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