Discordant voices


Sunlight, as US Justice Louis Brandeis famously said, is the best disinfectant

When four judges of the Supreme Court recently spoke out about what they see as abuse of power by the chief justice of India, the uproar that followed was exceptional. Judges addressing such issues – alleged irregularities with allocation of cases and constitution of benches – in this manner is unprecedented. While some called it courageous, others were critical. What happened will no doubt be debated long and hard.

1712 LeaderWhile expressing concern about the overall functioning of the justice delivery system, the independence of high courts, and the functioning of the office of the chief justice of India, the judges in question have also turned the spotlight on the less than transparent conventions that guide the behind-the-scenes action at courts.

The Supreme Court is arguably the country’s most powerful institution. Its role as the guardian of the constitution and adjudicator of last resort is sacrosanct. Both administrative and judicial decisions taken by it have to be unimpeachable and it is up to the judiciary to ensure this. The conventions that guide the key administrative decisions they take need to be brought out from the shadows. Is it too much to ask that judges be seen as doing what they order others to do?

Conflicts of a more granular nature are the subject of this issue’s Cover story, which analyses challenges that arise on account of discordant legislation. As detailed, the enforcement of international arbitration awards in India that involve a remittance of foreign exchange from a resident to a non-resident invariably have implications under the Foreign Exchange Management Act, 1999. As such, in a recent dispute between Japan’s NTT Docomo and Tata Sons, Delhi High Court was asked to decide whether enforcement of a foreign arbitral award could be denied on the grounds that it would be in violation of foreign exchange law. In this instance the court ruled it would not be a violation, but should we leave such questions to the courts? Surely legislative gaps such as this should be plugged by the legislature itself.

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